Guay v. Winner

• Decision Date: 31 March 1992
• Citation: 584 N.Y.S.2d 400,154 Misc.2d 71
• Parties: Clara A. GUAY and Erwin Guay, Plaintiffs, v. Thomas D. WINNER and the Golub Corporation, d/b/a Mini Chopper Store, and Sportline Power Products, Inc., Defendants.
• Court: New York Supreme Court

Page 400

584 N.Y.S.2d 400

154 Misc.2d 71

Clara A. GUAY and Erwin Guay, Plaintiffs, v. Thomas D. WINNER and the Golub Corporation, d/b/a Mini Chopper Store, and Sportline Power Products, Inc. Defendants.

Supreme Court, Saratoga County.

March 31, 1992.

Gary C. Hobbs, Bartlett, Pontiff, Stewart, Rhodes & Judge, P.C., Glens Falls, for plaintiffs.

Paul J. Campito, Friedman, Hirschen, Miller & Coughlin, P.C., Schenectady, for Thomas D. Winner.

John W. Vanderburgh, Carter, Conboy, Bardwell, Case, Blackmore & Napierski, Albany, for Golub Corp.

Thomas J. Johnson, Bouck, Holloway, Kiernan and Casey, Albany, for Sportline Power Products.

JAN H. PLUMADORE, Justice.

Vehicle and Traffic Law § 509(4) imposes liability for unlicensed operation on the operator and on any "person (who) shall knowingly authorize or permit a motor vehicle owned by him or in his charge to be operated in violation of subdivisions one, two or three of this section." (It is undisputed that title to this motorcycle had passed from the dealer, Sportline, to Defendant Winner at or before he took delivery of it, i.e. before he operated it on the public highway.)

Sportline was under no duty to make inquiry of Defendant Winner's companion, the girlfriend who accompanied him when he arrived to pick up the motorcycle but did not exit the automobile, whether she in fact possessed a motorcycle license as represented by Mr. Winner, nor is there any legislative presumption permitted by the failure to inquire (People v. Crean, 206 Misc. 311, 312, 136 N.Y.S.2d 688).

Sportline thus cannot be liable under this section. The fact that it violated its own policy of not selling to unlicensed persons does not change this result inasmuch as there is no statutory prohibition on such persons owning motorcycles (or cars) and it has not bound itself to a higher standard of care than any other former owner is required to exercise. In these statutory regards see 7 NYJur2d Automobiles § 105.

Dillon v. Suburban Motors, Inc., 166 Cal.App.3d 233, 212 Cal.Rptr. 360, upon which Plaintiffs seek to rely is distinguishable. The dealer there knew or should have known that the infant driver and his mother had no valid California licenses. They exhibited Missouri licenses which would under California law no longer be valid there (California). The dealership also retained title at time of delivery, the very point on which the Court distinguished Dillon. Though not determinative, our Mr. Winner had an Oklahoma motorcycle license which was not valid in New York during the time frame at issue and also, like the infant tortfeasor in Dillon, had not attempted to obtain a valid New York license and had had no formal instruction.

The matter of common law negligent entrustment is more difficult. There is no allegation that Mr. Winner was legally blind, intoxicated or possessed of an extensive vehicle violation record of which Sportline was or should have been aware. However, Sportline knew he did not have a license and was aware of his youth (age 20 at the time of purchase, which was shortly before the accident).

The question is complicated somewhat by the fact that a motorcycle may more readily be found to be a dangerous instrumentality in the hands of one not competent in its use than an automobile, and if it is a provider's duty is (apparently) increased beyond that attributable to mere negligent entrustment of a motor vehicle (79 NYJur2d Negligence §§ 71, 74, 75). Much depends on its nature, the circumstances of its use, the knowledge of the provider (79 NYJur2d supra, § 70; Costa v. Hicks, 98 A.D.2d 137, 145, 470 N.Y.S.2d 627). Sportline would be hard-pressed to argue that its duty is not heightened in this case over that of an automobile dealer in light of Mr. Cardinale's September 26, 1991 E.B.T. testimony (p. 5; Mr. Vandenburgh's Affidavit in Opposition, Exhibit B) that test drive screening is done very carefully and that it is "very, very reluctant to let any motorcycle go out on a test drive [because t]he degree of exposure to mishap is much, much greater than say in the automotive business. You can't fall off a car." While the quoted language was obviously directed towards a dealership's liability to a driver and arguably a passenger, it applies to uninvolved third parties as well (Costa, supra).

Costa, as did its ancestor (Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268) involved the negligent entrustment of motorcycles (dangerous instrumentalities) by parents to their minor children. The ultimate inquiry in such a case is whether the negligent entrustment, if it is such, was itself a proximate cause of a plaintiff's injuries (Costa, supra; 55 ALR4th 1100, 1126, Negligent Entrustment of Motor Vehicle to Unlicensed Driver § 11[a]. A case which particularly illuminated the role of negligent entrustment in a proximate cause determination was Kahlenberg v. Goldstein, 290 Md. 477, 431 A.2d 76, 22 ALR4th 719. The Court of Appeals of Maryland stated, when a father gave his minor son an automobile:

"Liability is not based upon continued ownership, but upon the negligent entrustment when it operates as a concurrent cause with the negligence of the entrustee" (290 Md. at 488, 431 A.2d at 83, 22 ALR4th, supra at 729).

"The negligence of the supplier consists of furnishing the chattel with the requisite knowledge. This sets in motion one chain of causation which may or may not in fact result in injury. The other chain of causation involves the conduct of the immediate tortfeasor. If physical harm results to one within the class of foreseeable plaintiffs, as a result of the use of the chattel by the entrustee in a manner, which, because of the youth, inexperience or otherwise of the entrustee, the supplier knew or had reason to know was a likely use and which would involve an unreasonable risk of physical harm, the two chains of causation converge and liability is on the supplier, for his own negligence" (id., 290 Md. at 488, 490, 431 A.2d at 83, 84, 22 ALR4th at 730, 731).

In the instant case, the accident--Mr. Winner driving through Co-Defendant Golub's front door after revving his engine in a standing position--occurred shortly after he picked up the motorcycle.

New York courts have addressed the question of negligent entrustment by donors. In Golembe v. Blumberg, 262 App.Div. 759, 27 N.Y.S.2d 692, the Second Department, citing Restatement, Torts § 390 (as does Kahlenberg, supra 290 Md. at 488, 431 A.2d at 83, 22 ALR4th at 729) held that there is a valid cause of action when a father purchases an automobile for his adult epileptic son and that even an automobile may qualify as a dangerous instrument "in the hands of a person physically incompetent to handle it" (emphasis supplied).

The other old New York case frequently cited in this area (e.g. 8 NYJur2d Automobiles § 694; Kahlenberg, supra 290 Md. at 488, 431 A.2d at 83, 22 ALR4th at 729), Bugle v. McMahon, 265 App.Div. 830, 37 N.Y.S.2d 540, is hardly dispositive. The Second Department upheld the dismissal of a cause of action, with leave to replead, which alleged no causal connection between the father's furnishing the automobile to a known reckless son and the accident. It also held that furnishing the automobile or funds therefor "is consistent with liability and non-liability" (citations omitted; at 831, 37 N.Y.S.2d 540).

More recent cases (Nolechek, Costa, supr...