Mackey v. Dorsey

Decision Date01 September 1994
Docket NumberNo. 969,969
Citation655 A.2d 1333,104 Md.App. 250
PartiesEddie MACKEY, Jr., et al., v. Michael R. DORSEY, et al. ,
CourtCourt of Special Appeals of Maryland

Desiree M. Lange (Barry M. Chasen on the brief), Greenbelt, for appellants.

John B. Kaiser (McCarthy, Bacon & Costello on the brief), Lanham, for appellees.


ALPERT, Judge.

In September 1989, appellants, Eddie Mackey, Jr. and Mildred Mackey, filed suit against appellee, Michael R. Dorsey, in the Circuit Court for Prince George's County seeking damages sustained as a result of a motor vehicle accident that occurred on June 9, 1988. On May 22, 1990, Dorsey filed a motion for summary judgment, which was denied by the Honorable Arthur H. Monty Ahalt on July 2, 1990. On October, 28, 1993, Dorsey filed a renewed motion for summary judgment, which was granted by the Honorable Richard Sothoron on April 22, 1994. This appeal followed.


Mr. Mackey is employed as a bus driver for the Washington Metropolitan Area Transit Authority in the District of Columbia. On the morning of June 9, 1988, he was stopped at a bus terminal at the intersection of Thirteenth Street and Pennsylvania Avenue in downtown D.C. While Mackey was waiting for passengers to board his bus, appellee, Michael R. Dorsey, parked his vehicle across the street in the median behind a police car. Dorsey exited his car in order to ask the officer for assistance with his passenger, Audrey Cooper. Dorsey had picked up Cooper when he found her wandering on the highway on his way to work. She had indicated to him that she was lost and was looking for her mother. 1 According to Dorsey, when he exited his vehicle he took his car keys with him. The officer informed him that he should take Cooper directly to D.C. General Hospital. When Dorsey returned to his vehicle, it did not start. Dorsey alleges that he then exited the car again in order to look under the hood. The police officer assisted him as he checked some wiring and the car's battery. He then reentered the car, successfully started the engine, "and exited again only long enough to shut the hood of the car." "At that time," Cooper slid over to the driver's seat and locked the door. Despite efforts by Dorsey and the police officer to stop her, Cooper pulled away from the median and collided with the bus driven by Mr. Mackey. Cooper was subsequently placed under arrest for unauthorized use of a motor vehicle.

Mr. Mackey's version of what transpired after Dorsey parked in the median is somewhat different. He contends Dorsey exited his vehicle on only one occasion, never left the car with his keys, and never unlatched the hood of the car to check underneath it.

The Mackeys brought suit against Dorsey under theories of negligent entrustment (Count II), vicarious liability (Count III), and gross negligence (Count VIII). 2 In granting Dorsey's motion for summary judgment as to all counts, the lower court stated:

The Court feels there is no genuine dispute of material facts as to the fact that Ms. Cooper was not a permissive driver in this situation. The only time frame that Mr Dorsey could be presumed to be negligent in any way[,] shape or form by allowing his vehicle to be not under the care of himself, possibly accessible to Miss Cooper is when he exited the vehicle after the police officer and himself were able to start the same to simply close the hood.

Based on the affidavits, that appears to be unrefuted.... It is my sense based on the facts before me, that even if this matter went to trial as far as Mr. Dorsey, that a trial judge would direct Mr. Dorsey out at the end of the plaintiff's case.

The Mackeys assert that the lower court erred in finding that there were not issues of material fact with respect to each count of their complaint. Specifically, they contend that there are disputed issues of fact as to whether Cooper was the agent of Dorsey, and whether Dorsey relinquished control of his vehicle to Cooper when he left keys in the ignition and exited the vehicle.

Historically, it was only with great reluctance that summary judgment was granted. State and federal courts often "carelessly proclaimed that summary judgment was to be denied if there was any factual dispute or even any inference adverse to the movant which could be drawn from the facts." Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242, 603 A.2d 1357 (1992). In a now famous trilogy of cases, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Anderson v. Liberty Lobby, Ltd., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Elec. Ins. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Supreme Court articulated the modern standard for summary judgment, which has been cited with approval by this court in Seaboard, 91 Md.App. at 242-45, 603 A.2d 1357. In Seaboard, at 243-44, 603 A.2d 1357, we summarized these three decisions:

The [Supreme] Court expressly stated that summary judgment was not a 'disfavored procedural shortcut.' Thus, the 'mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.' 'Factual disputes that are irrelevant or unnecessary will not be counted,' and when a movant has carried its burden, the party opposing summary judgment 'must do more than simply show there is some metaphysical doubt as to the material facts.' ... The mere existence of a scintilla of evidence in support of plaintiff's claim is insufficient to preclude the grant of summary judgment; rather there must be evidence from which the jury could reasonably find for the plaintiff.

(Emphasis in original; citations omitted.)

Thus, only a "genuine issue" as to a "material fact" will prevent the granting of an otherwise sufficient motion for summary judgment. A "material fact" has been defined as one that will "somehow affect the outcome of the case." King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985). In contrast, a factual dispute "relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute will not prevent the entry of summary judgment." Seaboard Surety Co., 91 Md.App. at 242-43, 603 A.2d 1357 (quoting Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40, 300 A.2d 367 (1973)).

Our task in the present case, then, is to determine if there were any such disputes of "material fact" that would prevent the trial court from finding that appellants were not entitled to judgment, as a matter of law, as to all three counts against Dorsey.

I. Negligent Entrustment

The tort of negligent entrustment was first recognized by the Court of Appeals in Rounds v. Phillips, 166 Md. 151, 160-61, 170 A. 532 (1934). The Court adopted the theory of negligent entrustment as expressed in the Restatement (Second) of Torts, currently § 390, which provides One who supplies directly or through a third person a chattel for 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 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.

We recently clarified the elements of negligent entrustment in Wright v. Neale, 79 Md.App. 20, 28, 555 A.2d 518, cert. denied, 316 Md. 508, 560 A.2d 41 (1989), as:

(1) The making available to another a chattel which the supplier

(2) knows or should have known the user is likely to use in a manner involving risk of physical harm to others

(3) the supplier should expect to be endangered by its use.

The principal feature of this tort is the knowledge of the supplier concerning the likelihood of the person to whom he entrusts the chattel to use it in a dangerous manner. Herbert v. Whittle, 69 Md.App. 273, 279-80, 517 A.2d 358 (1986); Kahlenberg v. Goldstein, 290 Md. 477, 488, 431 A.2d 76 (1981); Morrell v. Williams, 279 Md. 497, 503-04, 366 A.2d 1040 (1976). Appellants alleged in their complaint that Dorsey entrusted his vehicle to Cooper knowing that she was intoxicated and/or under the influence of alcohol or drugs. Given her condition, it was highly foreseeable, according to appellants, that placing a dangerous instrumentality in Cooper's custody would result in physical harm to others.

Whether Dorsey knew of Cooper's propensity to use his car in a dangerous manner or not, we hold that Dorsey did not, as a matter of law, "entrust" his vehicle to Cooper. Under the first element outlined above, Dorsey must be held to have entrusted or "made available" his vehicle to Cooper. The appellate courts in Maryland have never directly addressed the issue of what constitutes "making available." The Court of Appeals has stated generally that a "supplier" for purposes of negligent entrustment may be "anyone who has the right to permit and the power to prohibit the use of the chattel." Kahlenberg, 290 Md. at 489, 431 A.2d 76; see also, Rounds, 166 Md. at 168, 170 A. 532. It is not necessary that the person "furnish the chattel to the entrustee in a direct transfer in order to be found liable." Morris v. Weddington, 74 Md.App. 650, 657, 539 A.2d 1145 (1988). On the one hand, it could be argued that Dorsey had the "power to prohibit" Cooper from using his vehicle. Dorsey had the keys to the car in his possession and could have simply taken them with him when he exited the vehicle. We do not believe, however, that the Court intended for this language to include a person whose chattel is stolen. All car owners arguably have the "power to prohibit" others from taking stealing their vehicle. Whether Dorsey failed to exercise this power and whether he was at fault for leaving...

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