Hallquist v. Smith

• Decision Date: 07 March 2006
• Docket Number: No. ED 86372.,ED 86372.
• Citation: 189 S.W.3d 173
• Parties: John HALLQUIST, Appellant, v. Robert SMITH and Susan Smith, Respondents.
• Court: Missouri Court of Appeals

189 S.W.3d 173

John HALLQUIST, Appellant, v. Robert SMITH and Susan Smith, Respondents.

No. ED 86372.

Missouri Court of Appeals, Eastern District, Division One.

March 7, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 25, 2006.

James M. Dowd, St. Louis, MO, for appellant.

Lawrence F. Hartstein, Clayton, MO, for respondents.

PATRICIA L. COHEN, Judge.

Introduction

John Hallquist appeals from a judgment of the Circuit Court of St. Louis County which granted summary judgment in favor of Robert and Susan Smith in a personal injury action stemming from a vehicle collision involving Hallquist and Nathan Smith, the Smiths' son. In his appeal, Hallquist asserts that the trial court erred when it entered summary judgment in favor of the Smiths with regard to Hallquist's claims for negligent entrustment and negligent supervision. We affirm in part and reverse and remand in part.

Background

On the evening of March 14, 2003, 18 year-old Nathan Smith attended a party with his friends where he drank alcohol and used drugs. The Smiths were aware that when Nathan used drugs or alcohol he was typically out of the house and with friends. The Smiths also knew that Nathan had a history of driving after using alcohol and/or marijuana. After the party, Nathan's friend drove Nathan to his home which he shared with his parents. Nathan's parents did not hear him come into the house, because after attending a party themselves, they were asleep.

Once at home, Nathan took the keys to his mother's Toyota 4Runner which were laying on the kitchen counter and drove away from his home. At approximately 1:30 a.m., on March 15, 2003, Nathan drove the 4Runner into a stopped patrol car occupied by Hallquist, a St. Louis County police officer. The collision knocked Hallquist unconscious, caused a closed-head injury, post-concussive syndrome, hearing loss, tinnitus, severe headaches and tooth loss.

At the time of his collision with Hallquist's patrol car, Nathan had a BAC of.22 and was in possession and under the influence of marijuana. Although Nathan did not recall anything about the crash, he did recall drinking alcohol, riding as a passenger in the backseat of his friend's car after the party, being dropped off at the Smiths' home and awaking in the hospital after the collision. The officer who transported Nathan from the hospital to the police station informed Nathan that he had crashed his car into the back of a police car.

Although the Smiths previously purchased cars for Nathan, at the time of the accident, Nathan was no longer in possession of an automobile. Instead, the Smiths occasionally granted Nathan permission to drive their 4Runner to complete errands for his mother. Both Nathan and the Smiths claim that, on the night of his collision with Hallquist, Nathan did not have permission to drive the 4Runner.

Following the accident, Hallquist brought suit against Nathan for negligence and against the Smiths for negligent entrustment and negligent supervision. The Smiths filed a Motion for Summary Judgment and Statement of Facts in support thereof. In their motion, the Smiths alleged that they did not negligently entrust the 4Runner to Nathan because he: (1) did not have unfettered permission to operate the 4Runner; (2) drove the 4Runner infrequently and never without express permission; (3) drove the 4Runner only to complete errands for his mother and never for his own pleasure; and (4) did not have permission to operate the 4Runner on March 14 or 15, 2003. In response to the negligent supervision claim, the Smiths alleged that they no longer had a legal duty to supervise Nathan because, at the time of the accident, he was 18 years-old and no longer a minor.¹

Plaintiff filed a Memorandum in Opposition to Defendants' Motion for Summary Judgment and alleged that there remained a genuine issue of material fact as to whether the Smiths entrusted the 4Runner to Nathan and whether the parents of an unemancipated 18 year-old can be liable for negligent supervision.

The court called and heard the Smiths' Motion for Summary Judgment. On April 18, 2005, the court entered its Order granting the Smiths' Motion for Summary Judgment. This appeal followed.

Standard of Review

Our review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. "[A] `genuine issue' exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 382. We view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. We accept as true facts contained in affidavits or otherwise in support of a party's motion unless contradicted by the non-moving party's response to the summary judgment motion. Id.

Discussion

I. Negligent Entrustment

In his first point on appeal, Hallquist asserts that the trial court erred when it granted the Smiths' Motion for Summary Judgment because he adduced evidence that: (1) Nathan had permission to drive the Smiths' vehicles from time to time; (2) despite their knowledge of Nathan's history of driving while intoxicated, the Smiths left the keys to the 4Runner accessible; and (3) the Smiths failed to enforce a curfew which would have prevented this accident. In response, the Smiths assert that because Nathan did not have express permission to drive the 4Runner on the night of the accident, they negated the essential element of "entrustment."

The requisite elements of a claim for negligent entrustment are: (1) the entrustee was incompetent by reason of age, inexperience, habitual recklessness or otherwise; (2) the entrustor knew or had reason to know of the entrustee's incompetence; (3) there was entrustment of the chattel; and (4) the negligence of the entrustor concurred with the conduct of the entrustee to cause the plaintiff's injuries. See Evans v. Allen Auto Rental & Truck Leasing Co., 555 S.W.2d 325, 326 (Mo. 1977). To establish their right to summary judgment, the Smiths were required to negate at least one of the requisite elements of a claim for negligent entrustment. ITT, 854 S.W.2d at 381. To that end, the Smiths attacked the third element of Hallquist's negligent entrustment claim, i.e., proof that the Smiths entrusted their 4Runner to Nathan.

The Smiths assert that although they gave Nathan permission to drive the 4Runner from time to time, he did not have express permission to drive the 4Runner on the night of the accident. Hallquist responds that there remains a genuine issue of material fact as to whether the Smiths entrusted Nathan with the 4Runner on the night of the accident.

The recent case of LeCave v. Hardy, 73 S.W.3d 637 (Mo.App. E.D.2002) provides us with guidance here. In LeCave, a 21 year-old with a history of automobile related convictions took a car from his father's house, where he still lived. Although the father knew that his son had a tumultuous driving record and did not have a car or car insurance, the father customarily allowed his son to borrow a car and, on the night of the accident, left the keys to one of his cars in its ignition. The son took his father's car, without express permission, and caused a fatal accident. Following the accident, the victim's family sued the son for negligence and the father for negligent entrustment. In response, the father moved for summary judgment based, in part, on the fact that the father expressly denied the son permission to take his car on the night of the accident. The trial court granted summary judgment in favor of the father and the victim's family appealed. Id. at 640.

On appeal we addressed whether the father entrusted his car to his son. In resolving the issue, we held that "entrustment may be proven by either express or implied permission."² LeCave, 73 S.W.3d at 645. In LeCave, the father and his son both testified that father expressly denied his son permission to take the car on the night of the accident. In light of his allegation that he expressly denied his son permission, the father in LeCave argued that it was impossible for the victim's family to prove entrustment. We held that despite father and son's assertions regarding an express denial of permission to drive the car and the fact that the victim failed to offer direct evidence to rebut this testimony, the indirect evidence and reasonable inferences therefrom were sufficient for a jury to disbelieve that the father expressly denied the son permission to use the car on the night of the accident. Id. at 645.

In essence, we rejected the notion that the Smiths appear to be advancing here, that simply because a parent asserts that he expressly denied his son permission to use his car on the night of the accident, summary judgment is thereby mandated. To the contrary, LeCave teaches that despite an assertion of express denial, a court should consider evidence of the parent and child's past history with respect to the vehicle in question, including previous authorization to drive the parent's vehicle.

In LeCave, we also analyzed whether the evidence could support a finding that the parent gave implied permission to his son to drive the parent's car. We held that a finding of implied permission may be based on a pattern of conduct, the relationship of the parties or a lack of objection that indicates consent. Id. at 646. Moreover, where "the relationship is one of blood, weaker evidence will support a finding of" implied permission. Id.

In LeCave, the plaintiff adduced evidence that the father allowed his son to use the father's cars despite knowledge of his son's poor driving record and consequent uninsured status. As in LeCave,...