Boomer v. Frank

• Decision Date: 18 March 1999
• Docket Number: No. 1 CA-CV 98-0294.,1 CA-CV 98-0294.
• Citation: 196 Ariz. 55,993 P.2d 456
• Parties: Warren BOOMER and Julie Boomer, husband and wife; Michael Boomer, Christina Boomer and Amanda Boomer, minor children by Warren Boomer and Julie Boomer, their parents and natural guardians, Plaintiffs-Appellants, v. Curtis Mario FRANK, a minor, Defendant-Appellee.
• Court: Arizona Court of Appeals

993 P.2d 456

196 Ariz. 55

Warren BOOMER and Julie Boomer, husband and wife; Michael Boomer, Christina Boomer and Amanda Boomer, minor children by Warren Boomer and Julie Boomer, their parents and natural guardians, Plaintiffs-Appellants, v. Curtis Mario FRANK, a minor, Defendant-Appellee.

No. -0294.

Court of Appeals of Arizona, Division 1, Department A.

March 18, 1999.

Review Dismissed August 25, 1999.

Office of Robert H. Allen, P.C. by Robert H. Allen, Phoenix, Attorneys for Plaintiffs-Appellants.

Burch & Cracchiolo, P.A. by Daniel R. Malinski, Phoenix, Attorneys for Defendant-Appellee.

OPINION

LANKFORD, Judge.

¶ 1 The principal issue presented by this appeal is whether a licensed driver accompanying a driver with only a learner's permit has a duty to exercise reasonable care. The trial court decided that he does not, and entered summary judgment for the licensed driver, defendant Curtis Frank. We hold that as a matter of law, the licensed driver has a duty. See generally Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985) (whether a duty exists is a question of law).

¶ 2 The plaintiffs are the Boomer family. They were injured when their Toyota sport utility vehicle was struck by a Porsche driven by Frank's friend, Renee Rapisarda. She was driving with a learner's permit at the time, while Frank rode in the front seat. The presence of a licensed passenger is required by statute.¹ The Boomers claim that Frank may be held liable in tort for their injuries under either an imputed negligence theory or for his negligent supervision of Rapisarda.

¶ 3 The details of the accident are as follows. The collision occurred on the evening of February 17, 1996, at the intersection of Shea Boulevard and 85th Place in Scottsdale, Arizona. The Boomer family was traveling eastbound in the innermost lane of Shea Boulevard. Rapisarda was driving south on 85th Place. She turned left to proceed east on Shea Boulevard, colliding with the Boomers' vehicle, apparently in the eastbound lane of Shea Boulevard closest to the median. The turn required crossing three lanes of westbound traffic in addition to a center median. Rapisarda's progress was controlled by a stop sign for southbound traffic on 85th Place at its intersection with Shea Boulevard.

¶ 4 Rapisarda was fifteen years old at the time, operating the vehicle with a learner's permit. Frank, who was riding in the front seat, was sixteen years old and had a driver's license. Three other passengers rode in the back seat of the Porsche.

¶ 5 There is some dispute about Rapisarda's speed and about whether she stopped at a stop sign prior to entering the intersection. Both Rapisarda and Frank deny that Rapisarda was speeding or failed to stop.² However, several witnesses to the accident stated that they had observed Rapisarda speeding through the intersection prior to the accident. Although some witnesses said that, given her speed, Rapisarda must not have stopped, none actually observed whether she had stopped.

¶ 6 Frank moved for summary judgment. The Boomers submitted several witness statements in response to Frank's motion for summary judgment. Frank contested the admissibility of the witness statements in his reply. The record does not reveal whether the trial judge considered the contested documents.³ The trial court granted Frank's motion for summary judgment, determining that there was "no duty and no evidence of violation of duty." The court certified its judgment as final under Arizona Rules of Civil Procedure 54(b). We have jurisdiction pursuant to A.R.S. section 12-2101(B) (1994). ¶ 7 The issues presented on appeal are: (1) Can Frank be held liable in tort under either an imputed negligence theory or a negligent supervision theory? (2) If so, was the evidence sufficient to create a genuine issue of material fact? We conclude that Frank, as the licensed passenger, had a duty to supervise Rapisarda, the permittee driver, and that there is sufficient evidence from which a jury could find that Frank violated that duty.

¶ 8 Our review of summary judgment is de novo. We decide anew whether genuine issues of material fact exist and whether a party is entitled to judgment as a matter of law. See Floyd v. Donahue, 186 Ariz. 409, 411, 923 P.2d 875, 877 (App.1996)

. The evidence and all reasonable inferences are drawn in the non-movant's favor. See Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990). "Mere speculation or insubstantial doubt as to the facts will not suffice, but where the evidence or inferences would permit a jury to resolve a material issue in favor of either party, summary judgment is improper." United Bank of Arizona v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990).

¶ 9 The trial court incorrectly decided that Frank could not be held liable for the Boomers' injuries as a matter of law. While Frank is not liable for the imputed negligence of Rapisarda, he may be held liable for the violation of his duty to supervise her.

¶ 10 Frank is not liable for Rapisarda's negligence. A driver's negligence generally is not imputed to a passenger absent special circumstances, such as when the passenger is the employer of the driver. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 74, at 530 & n.16 (5th ed.1984). Arizona has not addressed imputed negligence under the particular circumstances of this case. However, imputed negligence has been rejected outright in the contributory context. See Reed v. Hinderland, 135 Ariz. 213, 219, 660 P.2d 464, 470 (1983)

("[D]octrine of imputed contributory negligence should be abandoned in the context of personal injury automobile negligence actions." (emphasis added)). Moreover, many other courts have rejected the imputation of negligence in similar cases. See Forker v. Pomponio, 60 N.J.Super. 278, 158 A.2d 849, 852 (1960) (negligence of permittee driver not imputable to supervisor); Nowak v. Nowak, 175 Conn. 112, 394 A.2d 716, 722 (1978) (learner driver's negligence could not be imputed to instructor); Roberts v. Craig, 124 Cal.App.2d 202, 268 P.2d 500, 503-04 (1954) (rejecting argument that negligence of permittee driver should be imputable to licensee where statute required supervision of permittee).

¶ 11 We are further persuaded not to recognize imputed negligence for the reasons stated in Stanfield v. Tilghman, 342 N.C. 389, 464 S.E.2d 294, 295-97 (1995), overruling 117 N.C.App. 292, 450 S.E.2d 751 (1994). The court noted that one purpose of a learner's permit is to allow minors to practice driving "under the guidance and supervision of a licensed ... statutorily approved person." Id. at 297. The court said that this public policy would be undermined by imputed negligence:

This period of practice driving is important so that permittees gain the driving experience necessary for them to safely operate a vehicle without supervision when they are awarded their driver's license. If the permittee's negligent operation of a vehicle was imputed, in all instances as a matter of law to the supervising adult [or in Arizona, the supervising passenger], such adults. . . would be less inclined to serve as supervisors over a permittee's practice driving, thus militating against our public policy and practice regarding drivers' education.

Id.

¶ 12 Although we reject the idea of imputing Rapisarda's negligence to Frank, Frank's liability in negligence for failing to supervise is another matter. His liability depends on whether "there [was] a duty or obligation, recognized by law, which require[d him] to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Markowitz, 146 Ariz. at 354, 706 P.2d at 366. The existence or non-existence of a duty is a question of law. Id. at 356, 706 P.2d at 368.

¶ 13 A duty exists where "the relationship of the parties [is] such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Id. The Boomers argue that A.R.S. section 28-415 (1996)⁴ reveals that Frank owed a duty to supervise Rapisarda. We agree.

¶ 14 We interpret the statute in a manner consistent with the Legislature's apparent purpose. See Arizona Life & Disability Ins. Guar. Fund v. Honeywell, Inc., 190 Ariz. 84, 87, 945 P.2d 805, 808 (1997)

. The purpose of the statute is to require supervision of the licensed passenger.

The clear objective of the statute is to ensure that a permit driver is accompanied by a more experienced, licensed driver who can advise, assist and supervise the permit driver, therefore increasing public safety. . . . To construe the statute otherwise would be to render the requirement for a licensed driver meaningless, and would obviate the just and reasonable result intended by the legislature when it enacted [the statute].

Pfund v. Ciesielczyk, 84 Ohio App.3d 159, 616 N.E.2d 560, 565 (1992). The statutory purpose implies the existence of a duty to supervise.

¶ 15 Frank argues that the statute places a duty on the permittee driver rather than on the licensed passenger. While we agree that the statute imposes a duty on the permittee to ensure that a licensee is present, that does not address whether the licensee too has a duty. By placing a licensed passenger in the front seat with a permittee driver, the statute anticipates some supervision. This duty is distinct from any duty of the permittee to ensure that there is a licensed passenger present when she drives.

¶ 16 Our conclusion is supported by other states that have recognized the duty of a licensed driver to supervise a permittee. At least two states have concluded that the duty is derived from statute. In Pfund, the Ohio Court of Appeals interpreted a statute similar to ours.⁵ It held that the statute imposed a duty on the licensed passenger to assist, instruct, or supervise the permittee driver. Pfund, 616 N.E.2d at 564-65. The New Jersey Superior Court likewise recognized a...