Ferry v. Fisher

• Decision Date: 15 May 1998
• Parties: Joseph M. and Eugenia M. FERRY, H/W, v. Clarence M. FISHER and Martin F. Ditommaso and All Star Motors, Inc. Appeal of Martin F. DiTOMMASO and All Star Motors, Inc.
• Court: Pennsylvania Superior Court

Page 399

709 A.2d 399

Joseph M. and Eugenia M. FERRY, H/W, v. Clarence M. FISHER and Martin F. Ditommaso and All Star Motors, Inc Appeal of Martin F. DiTOMMASO and All Star Motors, Inc.

Superior Court of Pennsylvania.

Argued Jan. 13, 1998.

Filed March 4, 1998.

Reargument Denied May 15, 1998.

David Karamessinis, Philadelphia, for appellants.

Larry R. McDowell, Philadelphia, for Joseph M. and Eugenia M. Ferry, appellees.

Before KELLY and MONTEMURO, ^* JJ., and CIRILLO, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

Martin F. DiTommaso and All Star Motors, Inc., appeal the order entered in the Court of Common Pleas of Bucks County denying Appellants' post-trial motion, granting Appellees' motion for delay damages, and molding the jury verdict to impose joint and several liability among the Defendants. We reverse.

On February 13, 1992, Clarence Fisher, a New York resident, was involved in an automobile accident in Langhorne, Pennsylvania, when he was test-driving a used 1981 '98 Oldsmobile Regency owned by appellant All Star Motors ("ASM"). At the time of the accident, appellant Martin F. DiTommaso ("DiTommaso"), a salesman employed by ASM, was in the passenger seat of the car driven by Fisher. Fisher's cousin and uncle were also in the backseat of the car during the test drive and at the time of the accident.

At the time of the test drive a light rain was falling. ¹ In an attempt to swerve and avoid hitting a car emerging from a hidden driveway, Fisher applied his brakes; he, however, skidded on the wet roadway, swerved into the oncoming lane of traffic, and ultimately impacted with an approaching car driven by plaintiff/appellee Eugenia M. Ferry ("Ferry").

Ferry ² brought a personal injury action alleging various theories of negligence against Fisher, DiTommaso, ASM, and U.S. 1 Auto Sales. ³ After a jury trial, a verdict was rendered in favor of the Ferrys ($225,000.00 for Mrs. Ferry's injuries and $5,000.00 for Mr. Ferry's loss of consortium). The jury apportioned Appellants' causal negligence in the following amounts--Fisher 42%, DiTommaso 30%, and ASM 28%. The trial court also amended the Ferrys' complaint to reflect joint and several liability among the defendants. The verdict was eventually molded to assess delay damages and post-verdict interest, bringing Mrs. Ferry's total award to $264,397.50 and Mr. Ferry's final recovery to $5,875.50. After the trial court denied Appellants' post-trial motions, the instant appeal was filed. On appeal, Appellants present the following issues for our review:

(1) Did the Plaintiffs fail to produce sufficient evidence that the dealership and its salesman negligently entrusted their vehicle to a customer to testdrive?

(2) Did the Plaintiffs fail to produce sufficient evidence that an agency relationship existed between the dealership/salesman and the customer during the test drive?

(3) Did the trial court err in allowing the Plaintiffs to introduce evidence that the Defendant gave a statement to an insurance company?

(4) Did the trial court err in precluding the defense from introducing evidence that the customer had never had his driver's license revoked or suspended before the accident?

(5) Did the trial court err by failing to instruct the jury that the Defendants' failure to ask for a driver's license was not negligence?

(6) Did the trial court err in failing to give a cautionary instruction to the jury after prejudicial statements were made during Plaintiffs' summation?

(7) Did the trial court err in granting the Plaintiffs' motion to amend their complaint to plead joint and several liability against all Defendants after the jury verdict was rendered?

Our standard of review of an order denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: j.n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske Olds-Cadillac-GMC Inc., 413 Pa.Super. 308, 605 A.2d 373 (1992). An appellate court will reverse a trial court ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892 (1984).

ASM and DiTommaso assert that the Ferrys failed to present sufficient evidence to prove that ASM and DiTommaso negligently entrusted their automobile to Fisher or that Fisher had an agency relationship with ASM and DiTommaso at the time of the accident.

In reviewing the sufficiency of the evidence we are required to view the evidence in the light most favorable to the verdict winners. Simonetti v. School District of Philadelphia, 308 Pa.Super. 555, 562, 454 A.2d 1038, 1041 (1982), citing Rubinstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 480, 368 A.2d 819, 822 (1976). Viewing the evidence in light most favorable to the Ferrys, as verdict winners, we cannot find that either ASM or DiTommaso were negligent in the underlying case.

To establish a viable cause of action in negligence, the pleader must aver in his complaint the following elements:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure on the person's part to conform to the standard required: a breach of the duty.

3. A reasonably close causal connection between the conduct and the resulting injury.

4. Actual loss or damage resulting to the interest of another.

Prosser & Keeton on Torts, § 30 (5th ed.1984). See also J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc., 692 A.2d 582 (Pa.Super.1997) (the elements for a cause of action based on negligence are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and an actual loss). Moreover, "the mere happening of an accident does not entitle the injured person to a verdict; plaintiff must show that defendant owed him a duty and that duty was breached." Engel v. Parkway Co., 439 Pa. 559, 562, 266 A.2d 685, 687 (1970).

Presently, the trial court, in its opinion, responds to the Ferrys' first two issues on appeal by stating that

Plaintiffs alleged multiple theories of liability, only [two] of which w[ere] negligent entrustment [and agency]. They also alleged simple negligence. There was sufficient evidence at trial for the jury to have concluded that defendants should have not allowed Fisher to drive the car at the time and place of the accident. As there was sufficient evidence of defendants' negligence in this regard, a new trial is not warranted.

While the trial court is correct in acknowledging that the Ferrys' complaint did allege multiple theories of liability, the court seems to be overlooking the fact that a duty on the part of ASM and DiTommaso must first be found before these parties can be held liable under a theory of simple negligence. Engel, supra.

As a car dealership, it could be argued that ASM should have had a dealership policy whereby all persons, prior to taking a dealership car on a test drive, must produce evidence of a valid driver's license to a salesman. However, after viewing the facts in the instant case, we do not find that this is the appropriate time to create such a blanket duty on dealerships. Additionally, such a duty is inconsistent with the following well-settled principles of law established in this Commonwealth.

Section 308 of The Restatement (Second) of Torts defines the tort of negligent entrustment, which has been adopted in this Commonwealth, as follows:

§ 308. Permitting Improper Persons to Use Things or Engage in Activities

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Restatement (Second) of Torts § 308 (emphasis added); Christiansen v. Silfies, 446 Pa.Super. 464, 667 A.2d 396 (1995). Under a theory of negligent entrustment, liability is imposed upon a defendant because of his or her own actions in relation to the instrumentality or activity under his or her control. Silfies, 446 Pa.Super. at 472, 667 A.2d at 400. The entrustor's liability is not dependent on, derivative of, or imputed from the entrustee's actual liability for damages. Id.; see also Restatement (Second) of Torts § 308.

Similar to the tort of negligent entrustment, our legislature has also imposed a statutory duty on automobile owners who entrust their cars to persons who are not licensed to drive. Specifically, our Commonwealth prohibits an automobile owner from "authorizing or permitting an automobile owned by him or under his control to be operated by any person without a valid driver's license." 75 Pa.C.S.A. § 1574. In order to violate the statute, however, it must be shown that the owner knew or had reason to know that the individual to whom he or she authorized to operate his or her vehicle did not have a valid driver's license. See 75 Pa.C.S.A. § 1574; Burkholder v. Genway Corp., 432 Pa.Super. 36, 637 A.2d 650 (1994). See also In re Moyer, 359 Pa. 536, 59 A.2d 927 (1948) (a case where the supreme court imputed a "knowledge/reason to believe" requirement into section 1574; where owner did not have any knowledge or reason to believe that the license of the operator of his automobile had been revoked, owner did not violate any provision of the Motor Vehicle Code).

At trial DiTommaso testified that he did not ask Fisher for his driver's license before embarking on the test drive. It is undisputed, however, that at the time of the test...