Bearden v. Croft, 990346.

• Decision Date: 21 August 2001
• Docket Number: No. 990346.,990346.
• Parties: Cody E. BEARDEN, Plaintiff and Appellant, v. Wayne E. CROFT and Brian C. Golsan, a minor, Defendants and Appellees.
• Court: Utah Supreme Court

31 P.3d 537

2001 UT 76

Cody E. BEARDEN, Plaintiff and Appellant, v. Wayne E. CROFT and Brian C. Golsan, a minor, Defendants and Appellees.

No. 990346.

Supreme Court of Utah.

August 21, 2001.

Kendall S. Peterson, Salt Lake City, for plaintiff.

Robert W. Hughes, Salt Lake City, for defendants.

HOWE, Chief Justice:

¶ 1 Plaintiff Cody E. Bearden appeals from a summary judgment denying him recovery from defendant Wayne E. Croft for injuries sustained in an accident caused by a minor operating a Waverunner owned by Croft.¹

¶ 2 Plaintiff's father, Vandee Bearden, performed cement work for Croft in exchange for the use of Croft's two Waverunners. When he went to Croft's home to pick up the Waverunners, Croft began showing him how to operate them. Bearden interjected that he was not going to operate the Waverunners and that "my kids know how to operate them." Croft made no response to that remark, and nothing more was said as to who was allowed to operate them.

¶ 3 At Deer Creek State Park, Vandee Bearden permitted his son, plaintiff Cody Bearden, who was over the age of twenty-one, to operate one of the Waverunners and Brian Golsan, a thirteen-year-old friend, to operate the other Waverunner. Golsan ran his Waverunner into plaintiff, who sustained a broken hip. Plaintiff subsequently brought this action against Golsan and Croft. The liability claim against Croft was based on his status as the owner of the Waverunner. Section 73-18-18 of the Utah Code makes the owner of a watercraft vicariously liable for the negligence of a minor operating it with the express or implied permission of the owner.

¶ 4 Croft moved for summary judgment against plaintiff Cody Bearden and also against third-party defendant Vandee Bearden for indemnification. The trial court denied the motion. However, four days before trial, the judge, sua sponte, reconsidered Croft's motion for summary judgment, vacated his previous order, and granted the motion. In its order of dismissal, the court held that "[a]s a matter of law, Croft did not give Golsan express or implied consent or permission to operate the Waverunners so as to impose liability against Croft under Utah Code Ann. § 73-18-18." The judge explained that section 73-18-18 "does not go far enough to cover a third party such as Mr. Golsan is in this matter."

STANDARD OF REVIEW

¶ 5 Summary judgment is granted only when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). In reviewing a grant of summary judgment, an appellate court views "the facts in a light most favorable to the losing party below" and gives "no deference to the trial court's conclusions of law: those conclusions are reviewed for correctness." Blue Cross & Blue Shield v. State, 779 P.2d 634, 636-37 (Utah 1989). Correctness is also the standard for review of questions of statutory interpretation. See Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 519 (Utah 1997)

.

ANALYSIS

¶ 6 Plaintiff's action against Croft is based on section 73-18-18 of the Utah Code, which provides:

The owner of a vessel shall be liable for any injury or damage occasioned by the negligent operation of such vessel, by a minor under the age of 18 years operating such vessel with the express or implied consent of the owner, whether under the laws of this state or by neglecting to observe such ordinary care and such operation as the rules of common law require.

Utah Code Ann. § 73-18-18-(1989).

¶ 7 We note at the outset that the statute, which imposes liability on the owner of a vessel for its negligent operation by a minor operating it with the express or implied consent of the owner, is identical in purpose and similar in wording to section 53-3-212(1) of the Utah Code. The latter statute imposes liability upon the owner of a motor vehicle for the negligent operation of it by a minor when the owner has caused or knowingly permitted the minor to operate it. We have decided a number of cases under section 53-3-212(1), and reference to that statute and those cases is therefore helpful in our analysis here. At least one other state in interpreting its owner-consent boating statute has looked to its statute imposing vicarious liability on automobile owners for negligent use by minors. See Gunn v. Booker, 259 Ga. 343, 381 S.E.2d 286, 288-89 (1989)

. Although not important to our analysis here, the two Utah statutes do contain some different language. Section 73-18-18 provides only for the vicarious liability of the owner of the vessel, whereas section 53-3-212(1) imposes liability on both the owner of a motor vehicle causing or knowingly permitting a minor to drive it and on any person who gives or furnishes a motor vehicle to the minor. Both persons are jointly and severally liable with the minor for any damage caused by the negligence of the minor operator.

¶ 8 The central question in this appeal is whether Brian Golsan was operating the Waverunner at the time of his accident with the plaintiff with the "express or implied consent" of Croft. In two cases arising under section 53-3-212(1), the automobile statute, we have had occasion to comment on the proof necessary to establish consent of the owner. In Lowder v. Holley, 120 Utah 231, 233 P.2d 350, 353 (1951), we observed that

the obvious intent of the legislature was to protect innocent third parties from the negligence of minors to whom cars are furnished or who are permitted by the owners of the cars to drive them, by holding the owners responsible therefor. In most instances, actual permission by the owner to the minor to drive the car is impossible of direct proof. It is, of course, in the interest of the owner after an accident, to deny such permission. It is not necessary, therefore, in order for a plaintiff to establish a case against an owner of a car to prove that express consent to drive the car was given to the minor. It may be implied from past conduct.

In that case, a father and truck owner testified that he had not at any time given his sixteen-year-old daughter permission to drive the truck. The daughter corroborated that refusal and testified that on the occasions when she had asked for permission, her father had refused because she did not have a driver's license. However, there was evidence that the daughter had learned to drive a car about four years previously and that she had driven the truck involved in the subject collision on a number of occasions. The truck was left at home in the driveway near the street on the day of the accident. No keys were needed to start the truck. All that was needed was to turn on the ignition switch. Two officers who investigated the accident testified that both the father and the daughter told them the father knew she drove the truck and that he allowed her to do it. Under these facts, this court held that the trial court as finder of the facts was fully justified in concluding that the daughter was driving the truck at the time of the accident with the implied consent, permission, and knowledge of her father. We observed that there was evidence that the daughter had driven the truck on a number of occasions, and it was reasonable to conclude that her father could not fail to be aware of such conduct. Because no action was taken to stop this driving, it can be assumed that it was done with the father's consent.

¶ 9 Two years later, we decided Mugleston v. Glaittli, 123 Utah 238, 258 P.2d 438 (1953). In that case, a father owned an automobile and a panel truck. Upon leaving home one evening with his wife, he warned his fifteen-year-old son to leave the vehicles alone except to drive them from the street into the yard and to particularly not get any "bright or funny ideas" about driving them elsewhere. When the father left, the son drove the car into the yard but departed on a joy ride with some friends in the panel truck. An accident occurred in which the plaintiff, one of the son's friends, was injured. At trial, there was testimony to the effect that the father had in the past allowed his son to drive his car around the neighborhood. The trial court awarded judgment against the father upon the theory that anyone who negligently leaves his automobile where it is available to a minor under sixteen is absolutely liable for any injuries caused by the minor while driving.

¶ 10 Upon appeal, this court reversed the judgment, noting that there was no evidence that the owner caused or knowingly permitted the operation of the truck by his son, but, in fact, the owner had expressly forbidden his son to drive the vehicle. We further stated that the authorization to drive the vehicles into the yard cannot be construed to be general permission to use the vehicles in any other manner or for any other purpose.

¶ 11 Trials were held in the aforementioned two cases and the facts were fully developed. The instant case was decided on a motion for summary judgment filed by Croft and supported by his affidavit in which he averred that when he loaned the Waverunners to Vandee Bearden, Bearden did not indicate to him that plaintiff would operate a Waverunner, that Croft was not present when the accident happened, and that at no time had he consented to Golsan's use or operation of a Waverunner. The affidavit is silent as to what was actually said by and between Croft and Vandee Bearden when Bearden took the vessels from Croft's home.

¶ 12 In opposition to Croft's motion for summary judgment, plaintiff presented the affidavit of Vandee Bearden in which he averred that when he picked up the Waverunners from Croft, Croft asked him if he had ever operated a Waverunner. Vandee told him that he had not. The affidavit continues:

Mr. Croft proceeded to explain how to start up the wave runners and was giving me some instruction on how to ride them. I interrupted him and told him that I wasn't going to ride the wave runners and that I did not like that kind of recreation. I

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