Good v. MacDonell

• Citation: 564 N.Y.S.2d 949,149 Misc.2d 315
• Parties: Kenneth T. GOOD v. Cameron A. MacDONELL and Donald Garris.
• Decision Date: 08 January 1990
• Court: New York Supreme Court

Page 949

564 N.Y.S.2d 949

149 Misc.2d 315

Kenneth T. GOOD v. Cameron A. MacDONELL and Donald Garris.

Supreme Court, Chemung County Motion Term.

Jan. 8, 1990.

DeFilippo Bros., Frederick J. DeFilippo, of counsel, Elmira, for plaintiff.

Davidson & O'Mara, P.C., Ransom P. Reynolds, Jr., of counsel, Elmira, for defendant Cameron A. MacDonell.

CHARLES B. SWARTWOOD, Justice.

The defendant MacDonell made a cross-motion for summary judgment dismissing the plaintiff's complaint against him. This motion was returnable on September 12, 1989 and originally heard on October 10, 1989 but this court, sua sponte, asked for clarification of the plaintiff's claim as to negligent entrustment of his car by defendant MacDonell. The confusion as to this issue was caused because the amended complaint which contained a cause of action based on negligent entrustment had not been submitted with the original motion papers. The motion was adjourned by the court to November 14, 1989 for further argument and adjourned again to December 5, 1989 to allow the parties to submit additional briefs and affidavits which they have now done.

We should note that default judgment had previously been granted on September 12, 1989 in favor of the plaintiff against the defendant Donald Garris.

The plaintiff Kenneth T. Good seeks to recover for injuries he sustained while operating the car owned by the defendant MacDonell southerly on the Lake Road in the Town of Horseheads, New York on June 13, 1987. As the plaintiff was driving the car southerly he pulled slightly to his left to pass pedestrians near the right edge of the highway when, without warning, the defendant Donald Garris, who was seated in the right front seat, reached across the passenger in the middle of the front seat and yanked the steering wheel to the right causing the car to strike one or more of the pedestrians and killing one of them. The plaintiff Good immediately pulled the steering wheel back to the left directing the car over the center line of the road and then back again to the right losing control of the car so that it hit a telephone pole and a house causing injuries to the plaintiff.

The defendant Donald Garris was subsequently charged with and convicted of criminally negligent homicide by reason of his yanking the steering wheel and directing the car into the pedestrians.

The plaintiff's amended complaint has two causes of action. The first is based on a claim that the defendant's vehicle was being operated by plaintiff with the permission and consent of the defendant MacDonell and that the use and operation of the vehicle by defendant Donald Garris was also with the express or implied permission of the defendant MacDonell. The second is based on a claim that the defendant MacDonell negligently entrusted his motor vehicle to persons known by him to be incompetent to occupy and operate the automobile.

The defendant MacDonell, driving his car, picked up the plaintiff's brother, Steve Good, at his house, then picked up the plaintiff Kenneth Good and his friend, the defendant Donald Garris, at the plaintiff's home, drove to Weis' Market where Donald Garris purchased beer with funds donated by the occupants of the car and continued on to the Chemung County Fairgrounds where a "Battle of the Bands" was scheduled. They arrived about 1:00 P.M., stayed by the car for a while and then went their different ways, returning on occasion to the car. They all drank some of the beer as well as sharing it with others.

There is a variance between the depositions of defendant MacDonell and the plaintiff as to how many trips were taken in MacDonell's car to get more beer. Concededly, the defendant MacDonell did not drive or go on these trips and did not wish to because he had been drinking. The defendant MacDonell recalled two such trips while the plaintiff testified that he used the car three times including the last one. In any event on each occasion the keys were given to the plaintiff Kenneth Good so that he could drive the defendant's car. No one else drove the car after it arrived at the Fairgrounds. Each time the plaintiff took the car the defendant Garris went with him because he was old enough to purchase beer but the plaintiff was not. On the last occasion, about 7:00 P.M., the plaintiff obtained the keys to the car and permission to use it directly from the defendant MacDonell in the grandstand.

Obviously at the time of the accident the plaintiff was using the car with the express permission of the owner, defendant MacDonell, so that the defendant MacDonell would be liable to third persons injured by plaintiff's negligence, if any, in the operation of the car under section 388 of the Vehicle and Traffic Law. That is not our problem. It is plaintiff's claim in his first cause of action that defendant Garris was using and operating the car with defendant's permission when he yanked on the steering wheel.

There was no specific limitation by the defendant MacDonell when he gave the keys to the plaintiff as to who should be allowed to operate or be present in his car. Under these circumstances the owner has been held liable under Section 388 of the Vehicle and Traffic Law where his vehicle is being operated by the permittee's permittee. (Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389; Williams v. Monk, 33 A.D.2d 699, 306 N.Y.S.2d 188). Though the ownership of a motor vehicle creates a presumption that its operation is with the consent of the owner under Vehicle and Traffic Law § 388, the presumption may be rebutted by substantial evidence to the contrary (Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d 304, 171 N.E.2d 454; Aetna Casualty and Surety Co. v. Brice, 72 A.D.2d 927, 422 N.Y.S.2d 203; aff'd. 50 N.Y.2d 958, 431 N.Y.S.2d 528, 409 N.E.2d 1000 for reasons stated at App.Div.).

Here the only evidence is that the plaintiff had been given express permission to operate the MacDonell car, was operating it at the time and that neither MacDonell nor the plaintiff had given any permission to defendant Garris to interfere with that operation or assume control of the vehicle as he did and certainly none can be implied under these facts. The only evidence is that, when defendant Garris reached over and yanked the steering wheel, the plaintiff immediately pulled it back with both hands negating any possible inference that the plaintiff assented to or acquiesced in the defendant Garris' act in grabbing the wheel. The defendant Garris had no permission or consent to interfere in the operation of defendant MacDonell's car as he did within the meaning of Section 388 of the Vehicle and Traffic Law (Electric Insurance Co. v. Boutelle, 122 A.D.2d 332, 504 N.Y.S.2d 577). In the Electric Insurance Co. case the act of the passenger in unexpectedly depressing the accelerator of the car was held not to be operation, or use, of the car with permission. Based on this uncontroverted evidence the plaintiff's first cause of action must be dismissed (cf. Bruno v. Privilegi, 148 A.D.2d 652, 539 N.Y.S.2d 403).

The second cause of action is based on a claim that defendant MacDonell entrusted his automobile to persons known to him to be incompetent to operate it and that was a proximate cause of the accident and the plaintiff's injuries. Intoxication is the basis of the claim of incompetence here.

A person who has control over a motor vehicle may be held liable for injuries to third persons for entrusting it to a person who he knew or in the exercise of reasonable care should have known was not competent to operate it safely. (Bennett v. Geblein, 71 A.D.2d 96, 421 N.Y.S.2d 487; Golembe v. Blumberg, 262 App.Div. 759, 27 N.Y.S.2d 692; Rice v. Spencer, 43 Misc.2d 331, 250 N.Y.S.2d 620; see generally: Young v. Dalidowicz, 92 A.D.2d 242, 460 N.Y.S.2d 82, app. dsm'd. 59 N.Y.2d 967). This doctrine has been applied where the person injured is the person to whom the chattel has been negligently entrusted. (Splawnik v. DiCaprio, 146 A.D.2d 333, 540 N.Y.S.2d 615 [leaving a loaded hand gun with a person with a suicidal tendency].

A prerequisite to liability for negligent entrustment is the requirement that the supplier knew or in the exercise of reasonable care should have known that the...