LeCave v. Hardy

• Decision Date: 29 January 2002
• Docket Number: No. ED 79242.,ED 79242.
• Parties: Susan LeCAVE, et al., Appellant, v. James HARDY, Respondent.
• Court: Missouri Court of Appeals

73 S.W.3d 637

Susan LeCAVE, et al., Appellant, v. James HARDY, Respondent.

No. ED 79242.

Missouri Court of Appeals, Eastern District, Division Five.

January 29, 2002.

Application for Transfer to Supreme Court Denied April 17, 2002.

Application for Transfer Denied May 28, 2002.

V. Scott Williams, Hazelwood & Weber, LLC, St. Charles, MO, for appellant.

Debbie S. Champion, Rynearson, Suess, Schnurbusch & Champion, L.L.C., St. Louis, MO, for respondent.

JAMES R. DOWD, Chief Judge.

John LeCave was killed on October 16, 1997, when a Camaro driven by James Hardy, II struck the bicycle he was riding.¹ LeCave's widow, Susan LeCave, and their four children, Sean, Dawn, Aaron, and Dustin, brought wrongful death suits against both Junior and his father, James Hardy, alleging that Junior drove negligently and that Senior had negligently entrusted Junior with the car. The trial court granted summary judgment in favor of Senior on the claim that he negligently entrusted his automobile to Junior. After Junior filed a Suggestion of Bankruptcy, the LeCaves voluntarily dismissed their claim against him, without prejudice, and now appeal the grant of summary judgment in favor of Senior. We reverse and remand.

When considering an appeal from a grant of summary judgment we view all evidence and draw all inferences in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.1993). That evidence and those inferences are as follows:

Junior was 21 years old at the time of the accident. Between the ages of 16 and 21 Junior incurred convictions for seven speeding violations, one "following too close" violation, and one "careless and imprudent" violation. Two weeks before the accident he was again ticketed, resulting in a conviction for speeding. His license had previously been suspended and he had a mandatory insurance suspension. He lived at Senior's house in Chesterfield and was attending St. Louis Community College at Meramec, approximately 18 miles away. He worked at Tan USA in Ellisville, approximately 8 miles from home. Junior's car had thrown a rod earlier in the year and was not running.

On October 16, 1997, at approximately 6:30 p.m., Junior took Senior's Camaro and was driving northbound on Highway 109 on his way to school. It was still light outside. LeCave was ahead of him on his bike, also riding northbound on Highway 109. On a straight section of that road, with no cars approaching in the southbound lane, Junior came up from behind LeCave and struck his bicycle. LeCave was thrown into the passenger side of the car and his head shattered the front windshield and the passenger-side sunroof. Junior pulled over and attempted to assist, but Mr. LeCave was dead. The police responded to investigate. At that time Junior told St. Louis County Police Officer Nick Wild that he "customarily drove" the Camaro "back and forth from school."

LeCave's widow and four children sued both Junior and Senior for the wrongful death of their husband and father, alleging that Junior drove negligently and that Senior had negligently entrusted his son with the Camaro. Senior filed a motion for summary judgment with supporting affidavits and depositions. The LeCaves filed a response controverting some of Senior's factual assertions and arguing that the uncontroverted evidence combined with their proof on the disputed issues created material questions of fact for a jury. The trial court granted Senior's motion. The LeCaves appeal.

To prevail in their negligent entrustment claim the LeCaves must prove each of the following: (1) Junior was incompetent to drive the Camaro by reason of age, inexperience, habitual recklessness, or otherwise, (2) Senior knew or had reason to know of Junior's incompetence, (3) Senior entrusted the Camaro to Junior and (4) Senior's negligence concurred with Junior's negligence as a proximate cause of LeCave's death. Evans v. Allen Auto Rental & Truck Leasing, 555 S.W.2d 325, 326 (Mo. banc 1977); RESTATEMENT (SECOND) OF TORTS § 390 (1965). Where a "defending party," as in this case, will not bear the burden of persuasion at trial, that party may establish a right to judgment by showing facts that negate any one of the claimant's elements. ITT Commercial Finance Corp., 854 S.W.2d at 381.

To defeat Senior's motion for summary judgment the LeCaves must set forth facts, through affidavits, depositions, answers to interrogatories or admissions that demonstrate they have affirmative proof or the benefit of a reasonable inference drawn from available evidence to support each element they must prove at trial. Id. at 381-82. We determine the propriety of summary judgment by examining the record on each element to determine if there are genuine disputes of material fact that if decided favorable by a jury would enable the LeCaves to prevail at trial.

Senior does not dispute that the Le-Caves presented evidence that, if believed, proves their claim that Junior was negligent. Senior argues, however, that the LeCaves cannot prove that (1) Junior was incompetent to drive; (2) Senior knew or had reason to know that Junior was incompetent; or (3) Senior gave Junior permission to drive the Camaro. We address each of these claims.

I. Was Junior Incompetent?

This case requires us to determine if the LeCaves' evidence is sufficient to serve as the foundation for a finding that Junior was incompetent to drive. The LeCaves maintain Junior's numerous traffic violations and that he was driving uninsured, in violation of Missouri's Motor Vehicle Financial Responsibility Law, § 303.025 RSMo.1994,² are sufficient to prove incompetence. Senior first argues that prior traffic violations alone are not enough to establish incompetence to operate a motor vehicle. He then argues that Junior's traffic violations are too old and not of a nature to prove that he was incompetent at the time of the accident. Finally, Senior argues that violating Missouri's Motor Vehicle Financial Responsibility Law is irrelevant in determining Junior's competence to drive.

We first address the argument that prior moving violations cannot show incompetence to drive. Senior argues that because Junior was licensed to drive by the State of Missouri, was not intoxicated, and was not otherwise in an emotional or physical state that rendered him incapable of operating a motor vehicle, he is conclusively presumed to be competent to drive. We disagree. The possession of a valid driver's license is not proof that one is competent to drive. The driving habits of an individual will come to the attention of state licensing officials only upon being charged or convicted of an offense. As every driver knows, people are not convicted of moving violations every time they commit one. So, in the extreme case, it is possible to be habitually reckless without being convicted of a single moving violation. For this reason, and because family members and friends are generally in a better position to assess driving habits than the state, possession of a valid driver's license is not conclusive on the question of a person's competence to drive. Simply because Junior had a valid driver's license and was not intoxicated does not prove that he was competent to drive. See Moore v. McMillian, 1980 Pa. D. & C. LEXIS 733 at 4, 1980 WL 839 (1980). Missouri, with other states, recognizes that a history of traffic violations is powerful evidence that a driver is incompetent and that a jury can find incompetence solely on the basis of numerous traffic convictions. See, e.g., Peters v. Henshaw, 640 S.W.2d 197, 200 (Mo.App. W.D.1982); Tortora v. General Motors Corp., 373 Mich. 563, 130 N.W.2d 21 (1964); Thompson v. Havard, 285 Ala. 718, 235 So.2d 853 (1970); Broesche v. Bullock, 427 S.W.2d 89 (Tex Civ.App.1968); Swicegood v. Cooper, 341 N.C. 178, 459 S.E.2d 206 (N.C.1995).

In the alternative, Senior argues that the age and nature of Junior's traffic violations are insufficient to support a finding that he was incompetent at the time of the accident. He points to the dates of Junior's convictions and claims those dates show that most of Junior's offenses occurred in Junior's first year of driving. From this Senior reasons that the relative infrequency of offenses over the last few years is proof that the reckless habits Junior demonstrated in his first year of driving have abated. He stresses that Junior's convictions are all for "ordinary" moving violations; that there were no alcohol-related offenses, no violations for leaving the scene of an accident, no violations relating to injury to a person, and no evidence that the speeding violations endangered anyone.

This is an appeal from the grant of summary judgment. We view all evidence and draw all inferences in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp., 854 S.W.2d at 376. Junior was convicted of speeding on January 7, 1993, of careless and imprudent driving on March 11, 1993, of speeding on June 1, 1993, of speeding on July 28, 1993, of speeding on October 27, 1993 and of "following too close" on November 18, 1993. As a result of these convictions, his license was suspended on January 20, 1994. He received a mandatory insurance suspension on August 24, 1994. His driver's license was not reinstated until November 8, 1994. He was then convicted for speeding violations that occurred on June 16, 1995, June 18, 1996, April 23, 1997, and again on October 3, 1997. This last violation was only two weeks before the fatal accident. In roughly four years of driving, Junior was convicted of ten separate traffic violations. Here, the evidence and inferences favorable to the plaintiff show that after the mandatory insurance suspension Junior never obtained auto insurance, had fewer opportunities to drive, and so fewer opportunities to be ticketed for violations. We also note that Junior had two...