Herbert v. Whittle

• Decision Date: 12 November 1986
• Docket Number: No. 566,566
• Citation: 69 Md.App. 273,517 A.2d 358
• Parties: Cheryl Marie HERBERT v. Forrest L. WHITTLE, et al. Sept. Term 1986.
• Court: Court of Special Appeals of Maryland

Page 273

69 Md.App. 273

517 A.2d 358

Cheryl Marie HERBERT v. Forrest L. WHITTLE, et al.

No. 566 Sept. Term 1986.

Court of Special Appeals of Maryland.

Nov. 12, 1986.

Edward C. Mackie, James P. O'Meara and Rollins, Smalkin, Richards & Mackie, Baltimore, for appellant.

James M. Gabler, Phillips P. O'Shaughnessy, Paul W. Spence, Sandbower, Gabler & O'Shaughnessy, P.A., Baltimore, and J. Michael Lawlor, Towson, for appellees.

Before WILNER, GARRITY and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

Cheryl Marie Herbert, appellant, appeals from a jury verdict in the Circuit Court for Baltimore County awarding $100,000 to Rebecca Lynn Whittle and $112,984 to Forrest L. Whittle, appellees. Ms. Herbert raises the following issues on appeal:

"1. Under Maryland law, with certain exceptions not relevant here, does the entrustee of a motor vehicle have a cause of action against the entrustor for negligent entrustment?

"2. Was there evidence of negligent entrustment in this case?" ¹

On May 31, 1980, Rebecca Whittle and Cheryl Herbert were seriously injured when the 1971 Mustang in which they were riding collided with a pickup truck driven by Mark Diehl.

At the time of the accident, Ms. Whittle had completed eleventh grade and was sixteen years eight months old. She was driving the standard transmission Mustang, although she possessed neither a learner's permit nor a driver's license. Ms. Herbert was nineteen years of age at the time and was only casually acquainted with Ms. Whittle.

On the date of the accident, Ms. Herbert and Ms. Whittle were among several other spectators at a band rehearsal in a church hall located in northern Baltimore County. The two women did not plan to meet at the practice. Ms. Herbert attended because her husband set up equipment for the band. Shortly after Ms. Herbert arrived at approximately 6:30 p.m., there was a discussion between Ms. Herbert and Ms. Whittle and both women decided to leave the hall and drive to a location to purchase cigarettes. Ms. Herbert asked her husband, the owner of the Mustang, for the keys, and she and Ms. Whittle departed.

Ms. Whittle and Ms. Herbert disagree about precisely what happened next. According to Ms. Whittle, as the two were walking out to the car, she asked Ms. Herbert if she could drive the Mustang. Ms. Herbert agreed and allowed Ms. Whittle to drive from the church parking lot. According to Ms. Herbert, it was not until after she drove out of the parking lot that Ms. Whittle asked if she could drive the automobile. The two women switched positions and Ms. Whittle continued driving.

There was no discussion about Ms. Whittle's driving experience or whether she had a permit to drive prior to Ms. Whittle's taking over operation of the Mustang. In reality, two days prior to the accident Ms. Whittle had completed a driver education course with a grade of B. She also was familiar with the Maryland driver's handbook. As for practical driving experience, on four to five occasions Ms. Whittle had driven her mother's automobile to the end of their one-half mile driveway and back to pick up mail, and had driven her father's tractor around the yard. In addition, she had driven motor vehicles on approximately 50-70 occasions, including on public highways, although she stated she had never before operated a standard transmission vehicle.

Ms. Whittle drove the Mustang for several miles without incident or difficulty. She acknowledged she was very familiar with the area. The exact events that transpired in the intersection at Bee Tree Road and York Road are sketchy ² and in dispute. Ms. Whittle asserted that she stopped at the stop sign at the top of the hill on Bee Tree Road and did not observe any cross traffic. She then pulled out into the intersection. She recalls the car stalled in the intersection and was hit by the oncoming Diehl vehicle. She alleged Diehl was traveling at an excessive rate of speed.

Ms. Herbert remembered nothing about the accident. Diehl remembered that the Mustang was, in fact, moving when the two vehicles collided and he stated that he never saw the Mustang in front of him until he hit it.

Two eyewitnesses, aged fifteen and eleven at the time of the accident, both stated that the Mustang stopped at the stop sign at the intersection and stalled. It then rolled back approximately ten feet and stopped. The driver started the automobile again and proceeded through the intersection without stopping at the traffic sign. The Mustang was halfway through the intersection where Diehl's vehicle struck it.

Ms. Whittle was hospitalized for a lengthy period of time as a result of the accident. She has recovered substantially, although there remains some permanent injury. The record does not reveal the extent of Ms. Herbert's injuries except that she sustained a "severe concussion," and was under the care of a neurologist or neurosurgeon for a year after the accident.

Forrest Whittle brought suit individually and as parent and guardian of Ms. Whittle against Ms. Herbert, her husband as owner of the Mustang, Mark Diehl, and his father as owner of the truck. The action against the Herberts was based on the allegation that Ms. Herbert was the agent of Mr. Herbert and that she negligently entrusted the Mustang to Ms. Whittle with knowledge that Ms. Whittle was an unlicensed and inexperienced driver. The action against the Diehls alleged negligence on the part of Mark Diehl, an agency relationship between Diehl and his father, and negligent entrustment on the part of his father. ³ The Diehls filed a cross-claim against the Herberts.

Before the matter came on for trial, Ms. Whittle reached the age of majority and was directed to file suit on her own behalf. That suit was consolidated for trial with Mr. Whittle's suit. Prior to trial, summary judgment was entered in favor of Mr. Herbert. Summary judgment based on limitations was also entered in favor of Diehl's father with respect to the claim of negligent entrustment against him. During the trial, judgment was also entered in favor of Diehl's father as to the agency count.

The jury awarded verdicts against Ms. Herbert and exonerated Mark Diehl. Ms. Herbert submitted a Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial. The court took the matter under advisement and over a year later denied the motion. Ms. Herbert appealed to this Court. We dismissed that appeal for lack of a final judgment on the Diehls' cross-claim and on Mr. Whittle's suit filed on behalf of Ms. Whittle as her parent and guardian. The record was perfected and Ms. Herbert again appealed.

I. RIGHT OF ENTRUSTEE TO RECOVER AGAINST ENTRUSTOR The Tort of Negligent Entrustment

In Rounds v. Phillips, 166 Md. 151, 166-67, 170 A. 532 (1934), the Court of Appeals recognized the tort of negligent entrustment in Maryland. This tort, as embodied in the Restatement (Second) of Torts § 390 (1965), has been applied in cases subsequent to Rounds. See Kahlenberg v. Goldstein, 290 Md. 477, 431 A.2d 76 (1981); Morrell v. Williams, 279 Md. 497, 366 A.2d 1040 (1976); Curley v. General Valet Serv., 270 Md. 248, 311 A.2d 231 (1973); Snowhite v. State, ex rel. Tennant, 243 Md. 291, 221 A.2d 342 (1966); U-Haul Co. v. Rutherford, 10 Md.App. 373, 270 A.2d 490 (1970).

Section 390 provides:

"One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."

The cause of action for negligent entrustment is based on the requisite knowledge of the supplier of the chattel. If the supplier knows or should know of the entrustee's propensities to use the chattel in an improper or dangerous manner, the entrustor owes a duty to foreseeable parties to withhold the chattel from the entrustee. "[T]he principal features of the tort lie in the knowledge of the supplier concerning the dangerous propensities of the entrustee and in the foreseeability of harm." Kahlenberg, 290 Md. at 488, 431 A.2d 76.

In the context of supplying an automobile to an incompetent driver, the Court of Appeals in Morrell, 279 Md. at 503-04, 366 A.2d 1040, stated "[T]he doctrine requires scienter and has been applied in cases involving automobiles where the owner knew or should have known that the use of the entrusted car by the entrustee would likely involve unreasonable risk.

* * *

* * *

[T]he doctrine of negligent entrustment may be invoked only against the vehicle owner who knows or should have known that the use would involve an inordinate risk of physical harm."

Under the tort, the entrustee's conduct in causing the injury is not imputed to the entrustor. See Kahlenberg, 290 Md. at 490, 431 A.2d 76; Rounds, 166 Md. at 160, 165-66, 170 A. 532. Instead, the entrustor's negligence consists of supplying the chattel. Kahlenberg, 290 Md. at 489, 431 A.2d 76. Thus, if the entrustor neither knew nor ought to have known of the inordinate risk of harm, then, even if an injury occurs, those injured are unable to recover on a theory of negligent entrustment.

Entrustee as Plaintiff

Maryland Courts have never before decided whether a cause of action for negligent entrustment will lie between an entrustee and an entrustor. The cases in Maryland which have discussed the tort involved claims by a third party against the entrustor and the entrustee or the entrustor alone, rather than claims by the entrustee against the entrustor.

Ms. Herbert asserts that Ms. Whittle, as entrustee, is barred as a matter of law from bringing a cause of action for negligent entrustment against her entrustor. She posits that the action for negligent entrustment in the case sub judice required two acts of negligence--that of Ms....