Johnson v. Owens

• Decision Date: 04 August 1994
• Docket Number: No. 49A02-9306-CV-270,49A02-9306-CV-270
• Citation: 639 N.E.2d 1016
• Parties: October S. JOHNSON, Nicholas N. Bobo, Michael L. King, and Christine King, Appellants-Plaintiffs, v. Ronald OWENS and Jupe's Coupes, Incorporated, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1016

639 N.E.2d 1016

October S. JOHNSON, Nicholas N. Bobo, Michael L. King, and Christine King, Appellants-Plaintiffs, v. Ronald OWENS and Jupe's Coupes, Incorporated, Appellees-Defendants.

No. 49A02-9306-CV-270.

Court of Appeals of Indiana,

Second District.

Aug. 4, 1994.

Rehearing Denied Sept. 8, 1994.

Transfer Denied Dec. 16, 1994.

C. Warren Holland, Michael W. Holland, Holland & Holland, Indianapolis, for appellants.

John B. Drummy, Eric D. Johnson, Kightlinger & Gray, Indianapolis, for appellee, Jupe's Coupes, Inc.

FRIEDLANDER, Judge.

October Johnson, Nicholas Bobo, Michael King, and Christine King (collectively referred to as "Appellants") appeal a grant of summary judgment in favor of Jupe's Coupes in the Appellants' personal injury action against Jupe's Coupes and Ronald Owens. The general issue presented for review, i.e., whether the court erred in granting summary judgment in favor of Jupe's Coupes, may be divided into the following restated issues:

I. Did Jupe's Coupes voluntarily assume a duty to verify that Owens had a valid driver's license?

II. Did Jupe's Coupes violate a statutory duty by failing to verify that Owens had a valid driver's license?

III. Did Jupe's Coupes negligently entrust the vehicle to Owens in allowing him to drive the car off of the lot without verifying that he had a valid driver's license?

IV. Did the Appellants designate materials adequate to place at issue the question of proximate cause?

We affirm.

Following are the facts viewed in a light favorable to the Appellants, the nonmoving parties. On August 24, 1990, Jupe's Coupes, Inc., through its president Michael Indiano, sold an automobile to Owens and Dorothy Stennis. As a matter of routine, Jupe's Coupes obtained information regarding the status of a prospective purchaser's driver's license before completing a sale. Sherry Walker, a Jupe's Coupes employee, stated at a deposition that she had checked Owens's license prior to completing the sale and it appeared to be valid. Owens, however, submitted an affidavit asserting that he had not been asked by Jupe's Coupes to show his driver's license, nor had he done so. Owens claims that he had, instead, been asked for and shown them his social security card. It was later discovered that at the time he bought the car from Jupe's Coupes, Owens's license was suspended for driving while intoxicated. On the day of sale, Owens drove the car off the lot after he had tendered a down payment and signed a contract for payment of the remainder of the purchase price. Eight days after the sale, Owens was involved in a traffic accident while operating the car he had purchased from Jupe's Coupes. Owens's car left the road and struck a post. The appellants were passengers in the car and suffered injuries. At the time of the accident, Owens was legally intoxicated.

The Appellants sued Owens and Jupe's Coupes. The theories of liability alleged against Jupe's Coupes were set out in the following paragraph of the complaint:

"Such negligence includes but is not limited to negligent entrustment, negligence in the provision of the vehicle to Ronald Owens, and negligence with regard to the policies, procedures, and practices regarding the provision of vehicles to Defendant's customers." Record at 9.

I.

In order to recover in a negligence action, a plaintiff must establish a duty on the part of the defendant, the breach of which was a proximate cause of an injury suffered by the plaintiff. Lucas v. Dorsey Corp. (1993), Ind.App., 609 N.E.2d 1191, trans. denied. In the instant case, Appellants alleged that Jupe's Coupes breached the duty to verify that Owens had a valid driver's license before allowing him to drive the vehicle he had purchased. A car seller is under no statutory duty to verify that a prospective car buyer has a valid driver's license before completing a sale. Appellants offer no case which imposes such a duty, nor are we aware of one. Appellants contend, rather, that Jupe's Coupes's duty to verify that Owens had a driver's license arose by application of the doctrine of gratuitous assumption of duty.

A duty of care can arise when one assumes or undertakes a duty to act through affirmative conduct or agreement. Harper v. Guarantee Auto Stores (1989), Ind.App., 533 N.E.2d 1258, trans. denied. According to this doctrine, a party may gratuitously place himself in such a position that the law will impose upon him a duty to perform an undertaking in a manner which will not jeopardize the safety of others, including third parties. Id. The question of whether a party has undertaken a duty, and, if so, the scope of that duty, generally are jury questions. Id.

When deciding whether a party has gratuitously assumed a duty, we must first examine the nature of a defendant's allegedly negligent conduct to determine whether it constitutes misfeasance or nonfeasance. "Misfeasance is negligent conduct or active misconduct and will support liability for a breach in the performance of a gratuitously assumed duty." Ember v. B.F.D., Inc. (1986), Ind.App., 490 N.E.2d 764, 771, reh'g denied, (1988), 521 N.E.2d 981, trans. denied. "On the other hand, nonfeasance is a complete omission or failure to perform." Id. [emphasis in original]. Liability for nonfeasance is confined to situations in which the beneficiary detrimentally relied on performance, or when the defendant increased the risk of harm. Id. The distinction between nonfeasance and misfeasance is often subtle. It would be overly simplistic to characterize the difference as merely between action and inaction. Our courts have identified the determinative inquiry in such cases: "If one has engaged in affirmative conduct evidencing an undertaking to provide a [service], the failure to [provide the service], otherwise an 'omission,' will nonetheless support liability for the breach of a gratuitously assumed duty." Ember, supra, 490 N.E.2d at 771.

Appellants designated a portion of Indiano's deposition in support of their contention that Jupe's Coupes gratuitously assumed a duty to members of the public to verify that purchasers of their cars had valid driver's licenses. The Appellants contend that the purpose of Jupe's Coupes policy of checking driver's licenses was "to make sure that the prospective purchaser is a licensed driver, that the operator's license is current and to find out if the person has a legal right to drive the car...." Appellants' Brief at 5. Indiano's deposition, included the following:

"Q [Appellants' attorney] Do you obtain any information from the purchaser or prospective purchaser with regard to history of auto accidents or anything of that nature?

A [Indiano] No.

Q How about any information concerning their current status as to their operator's license?

A Oh, yeah. Yeah, they must have a current driver's license. We want to see them, yeah.

Q What kind of information do you obtain in that regard, with regard to the operator's license?

A Well, they show us their driver's license and so forth, and they also, we ask them, along with their license, to bring in like a bill from a utility company which also verifies address and so forth. So it does many things for us, verifies the address, verifies they have a current license and so forth.

Q Do you recall what the practice was at the time of the purchase of this vehicle, the one purchased by Ron Owens and Dorothy Tucker Stennis, with respect to checking out information about operator's license [sic]?

A Yes. Sherry [Walker] would have done that and would have asked them for like a telephone bill, so forth, to verify address and so forth. And if the operator's license differs from Social Security, then we'll ask them for their Social Security card.

Q What is the purpose in obtaining information about the operator's license?

A The thing is, I want to make sure they're a licensed driver, make sure it's current, you know. Same way with the Social Security number, people can put a wrong Social Security, skip town, you try and track them down. Same way with the date of birth, that's very important with the Social Security, we ask for that. Anything that they ties [sic] into it, do they have a legal right to drive the car, and anything that ties in that we can get access to information if they try to take off." Indiano Deposition at 53-54.

Viewed as a whole, Indiano's explanation of Jupe's Coupes's policy with respect to checking driver's licenses indicates that the policy was enacted to assist Jupe's Coupes in collection efforts should such become necessary. It is true that Indiano stated that Jupe's Coupes would check for a "current driver's license" in part to verify that the prospective buyer has "a legal right to drive the car". Indiano's full explanation, however, indicates that such was done to verify the party's address. Jupe's Coupes also asked prospective buyers to bring, along with their license, bills which "also" (i.e., along with the driver's license) would verify the purchasing party's address. He noted that if the driver's license reflected an irregularity with regard to the party's social security number, Jupe's Coupes would ask to see the social security card as well. Indiano summed up the purpose of Jupe's Coupes's pre-sale procedure, including checking the prospective purchaser's driver's license: "anything that ties in that we can get access to information if they try to take off." Record at 54.

We therefore cannot agree with Appellants' contention that Jupe's Coupes's policy of checking driver's licenses "is motivated, at least in part, by its recognition of the importance of protecting the motoring public from the consequences of operation of the vehicle by an unlicensed driver." Appellants' Brief at 15. We conclude that the Appellants have failed to designate materials which present a question of fact as to whether Jupe's Coupes's policy was intended to benefit the public. The policy of checking driver's licenses was enacted for...