Athridge v. Rivas
| Decision Date | 21 April 1998 |
| Docket Number | Nos. 95-7225,s. 95-7225 |
| Parties | , 40 Fed.R.Serv.2d 636 Thomas P. ATHRIDGE, Sr., et al., Appellants, v. Hilda RIVAS, trading as Churreria Madrid Restaurant, Appellee. Thomas P. ATHRIDGE, Sr., et al., Appellants, v. AETNA CASUALTY & SURETY COMPANY, Appellee. Thomas P. ATHRIDGE, Sr., et al., Appellants, v. Jesus IGLESIAS, et al., Appellees. Thomas P. ATHRIDGE, Sr., Individually and as Father and Next Friend of Thomas P. Athridge, Minor, Appellant, v. Jorge IGLESIAS, et al., Appellees. to 95-7228. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Nos. 89cv01222, 92cv01866, 92cv01867, 92cv01868).
William J. Rodgers argued the cause for appellants. Charles B. Long was on brief.
Paul R. Pearson argued the cause for appellees Jesus and Alicia Iglesias. Irving Starr entered an appearance.
David F. Grimaldi argued the cause for appellees Rivas and Churreria Madrid Restaurant.
Roger W. Heald was on brief for appellee Aetna Casualty & Surety Co.
Before: GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.
Plaintiffs Tommy Athridge (Tommy) and his father Thomas P. Athridge, Jr., appeal the district court's grant of summary judgment to the defendants in a civil action arising from an automobile accident in which Tommy was seriously injured. We affirm the grant of summary judgment to defendants Jesus and Alicia Iglesias and their insurer, the Aetna Casualty & Surety Company (Aetna), and reverse and remand with respect to defendants Francisco and Hilda Rivas and the Churreria Madrid Restaurant for the reasons set forth below. I.
On July 29, 1987 defendant Alicia Iglesias sent her 16-year-old son, Jorge, (Jorge) to mow the lawn at the residence (located in the District of Columbia) of his cousins, defendants Francisco and Hilda Rivas, who were out of town at the time. While at the Rivases', Jorge entered their house through an open window, found the keys to the Rivases' manual transmission VW Jetta on a kitchen windowsill and decided to drive the car. The Jetta was registered to Francisco Rivas and to the restaurant he owns, defendant Churreria Madrid Restaurant.
Jorge and his friend, James Ko, drove the Jetta to a local mall where they met up with Tommy, John Thornburg and several other friends at about noon. Jorge drove Tommy, Thornburg and some of the other teenagers to the house of another friend, Erin Rupp, for a pool party. Jorge, Thornburg and Ko left the party in the Jetta an hour later. As Jorge was driving away, however, Thornburg noticed that Tommy's school books were still in the car. Jorge then turned the car around and drove back toward Rupp's house, stopping at a stop sign approximately 440 feet from the house. Jorge then began to accelerate towards the Rupp house. Tommy, who was with a group of people in the Rupp driveway, moved into the street and began waving his arms in an apparent attempt to stop the car. Jorge, however, continued to accelerate towards Tommy, reaching a speed of approximately 40 mph. Tommy remained in the middle of the road. At the last moment, Tommy tried to leap out of the way but Jorge swerved in the same direction. The Jetta struck Tommy and threw him against the windshield. The car then swerved, ran onto a neighbor's lawn, struck a large rock, became airborne and eventually landed in a ravine where it hit two trees. Tommy sustained multiple injuries, including extensive skull fracture and permanent brain injury.
On May 4, 1989 Tommy and his father filed a diversity 1 suit against Jorge (as operator of the vehicle) and Francisco Rivas and Churreria Madrid Restaurant (as registered owners of the vehicle), alleging that Jorge's negligence caused Tommy's injuries. On October 21, 1991 Francisco Rivas and his restaurant moved for summary judgment, asserting that Rivas had not given Jorge permission to drive the car. The plaintiffs opposed the motion on the ground that the "permissive use" issue involved disputed facts and was only one of several bases of liability. On February 24, 1992 the district court denied the motion.
In August 1992 the plaintiffs moved for leave to file an amended complaint and also filed three new actions: (1) one against Hilda Rivas, who was not named in the original action, on theories of agency and negligence; (2) one against Jorge's parents, Jesus and Alicia Iglesias, on theories of agency, negligence and negligent entrustment; and (3) one against Aetna, the Iglesiases' insurer. The district court consolidated the three new actions with the original lawsuit. The Iglesiases then moved for summary judgment and Aetna subsequently joined the motion. The district court set a pretrial conference for October 22, 1992. The parties attended but there is no record of the proceedings. The plaintiffs' counsel maintains that he was instructed by the district court to be prepared at the next hearing, scheduled for November 16, 1992, to "show that they were entitled to get to a jury" by submitting "an opening statement ..., a proffer of evidence, showing sufficient facts that would entitle them to get to a jury." Plaintiffs' Statement of Proceeding Under Fed. R.App. P. 10(c) at 3; JA 783. According to the plaintiffs' counsel, the court informed him that he need not be prepared on November 16 to establish the facts.
At the November 16 hearing the district court heard arguments by the Iglesiases and Aetna on their joint motion for summary judgment. The court also considered the Rivases' oral motion to dismiss. The plaintiffs' counsel responded by proffering the proposed testimony of Thornburg, who would testify that before the incident Jorge had bragged about having driven cars in the past including a Porche owned by the Rivases. The proffer was oral because, as the Athridges' lawyer explained to the court:
There is no pending motion for summary judgment as to [the Athridges'] claims on [sic] the Rivases. There has not even been an answer filed on the Hilda Rivas newer case. And I am kind of caught between a rock and a hard place on that one, because had I been opposing a formally filed motion for summary judgment, which I did on a previous occasion, having to do with permissive use--had I been opposing that today, which is not really before the Court, I would have, obviously, been compelled to produce affidavits, testimony or otherwise.
I came in under the posture that I am to proffer evidence, which I stand by my proffer of what the evidence will be, but there is no pending motion for summary judgment.
So, consequently--and I have disclosed if I may, because I want to be abundantly clear. I don't want to be thought of as having misled the Court or counsel.
Had I believed that it was in a different posture, then we could have done that, but what we have done today is simply a proffer of evidence. And I have disclosed the existence of these people. This is my work product. And that there are no depositions is not my problem or my fault.
11/16/92 Proceedings Tr. 43:20-44:16.
By order filed July 19, 1995 the district court dismissed the claims against all defendants except Jorge, explaining that
it is apparent that Jorge Iglesias acted upon a youthful impulse of his own. His relationship to each and every one of the named defendants in these cases was not such as to render any one or more of them vicariously liable for his tortious conduct. He was not driving the car in the service of either his own parents or their relatives, or of the restaurant coincidentally registered as a co-owner of the car. He had no permission to use the car from anyone, express or implied. There is no evidence from which it could be found that any defendant could or should have reasonably foreseen that Jorge would commit a criminal act, much less that an innocent youngster far removed from the scene would suffer in consequence.
Athridge v. Iglesias, No. 89-1222, slip op. at 2 (D.D.C. filed July 19, 1995).
The plaintiffs appealed and moved for an order settling the record on appeal under Fed. R.App. P. 10(c) in order to summarize the substance of what occurred during the October 22 conference. The Iglesiases and Aetna filed objections. The district court denied the plaintiffs' motion, stating that "the Memorandum and Order of July 19, 1992 granting judgments from which the appeal is taken is self-explanatory" and that "[t]he informal (and inconclusive) pretrial proceedings in chambers of October 22, 1992, played no part in the Court's decision." Athridge v. Iglesias, No. 89-1222, slip op. at 2 (D.D.C. filed Apr. 23, 1997).
The case against Jorge proceeded to a bench trial. On November 8, 1996 the district court held, inter alia, that Jorge "t[ook] the car without the permission of the owner." Athridge v. Iglesias, 950 F.Supp. 1187, 1189 (D.D.C.1996). The court held that Jorge "violated the duty of care to avoid colliding with" Tommy and "was also negligent when he operated at an excessive speed, approximately 40 mph, on a street in a residential neighborhood." Id. at 1190. The court found that "this excessive speed was a proximate cause of the collision with plaintiff." Id. The court also "conclude[d] on the basis of the evidence that plaintiff was contributorily negligent" since "[a] reasonably prudent person would not stand in the middle of the road when an inexperienced driver is rapidly approaching in a vehicle." Id. at 1191. Nevertheless, the district court noted that "[d]espite his contributory negligence, a plaintiff may be permitted to recover under the last clear chance doctrine" and that Tommy was entitled to recover since "[t]here was ample room for [Jorge] to pass [Tommy] on either side, but [Jorge] continued directly towards him." Id.
The district court entered judgment for the plaintiffs, awarding Tommy's father $110,010.78 in damages for medical expenses and awarding...
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