McGinnis v. Hand

• Decision Date: 25 January 1999
• Docket Number: No. 98-306,98-306
• Citation: 293 Mont. 72,972 P.2d 1126
• Parties: Ronald McGINNIS and Rosemary McGinnis, Plaintiffs and Appellants, v. Jennifer Melissa HAND (a minor), Pamela Hand, Sebrina Andria Moore (a minor), Pat Moore, Danielle Eliza Aldridge (a minor), Pamela Aldridge, Robert Henry, Does and Roes One through Ten, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1126

972 P.2d 1126

1999 MT 9

Ronald McGINNIS and Rosemary McGinnis, Plaintiffs and Appellants, v. Jennifer Melissa HAND (a minor), Pamela Hand, Sebrina Andria Moore (a minor), Pat Moore, Danielle Eliza Aldridge (a minor), Pamela Aldridge, Robert Henry, Does and Roes One through Ten, Defendants and Respondents.

No. 98-306.

Supreme Court of Montana.

Submitted on Briefs Nov. 24, 1998.

Decided Jan. 25, 1999.

John C. Doubek; Small, Hatch, Doubek & Pyfer, Helena, for Appellants.

Richard Briski, Attorney at Law, Helena, for Respondents.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶1 Ronald and Rosemary McGinnis appeal from the Decision and Order of the First Judicial District Court, Lewis and ¶2 The issue on appeal is whether the District Court erred in granting summary judgment to Pamela and Danielle.

Clark County, granting summary judgment to Pamela Aldridge (Pamela) and Danielle Eliza Aldridge (Danielle). We affirm.

BACKGROUND

¶3 On the morning of March 10, 1992, Ronald McGinnis (McGinnis), then Chief of Police for the City of East Helena, Montana, initiated a traffic stop of a white 1984 Mercury Lynx being driven by Jennifer Hand (Hand). Sebrina Moore and Danielle were passengers in the vehicle. As McGinnis started to get out of his patrol car, the Mercury drove off at a high rate of speed. McGinnis pursued the vehicle and, after a lengthy high-speed chase, stopped the Mercury and arrested its occupants. Later that day, McGinnis began to feel nauseous and noticed he was passing a large amount of blood. He went to a local hospital emergency room where he was diagnosed with gastrointestinal bleeding resulting from a ruptured ulcer.

¶4 McGinnis subsequently filed this negligence action against, among others, Danielle and her mother, Pamela, alleging that his injuries resulted from the pressure of his body being thrown against his seat belt during the high-speed chase on March 10, 1992, and requesting damages. McGinnis' wife, Rosemary, also brought a claim for loss of consortium. Pamela and Danielle moved for summary judgment, asserting that there were no genuine issues of material fact regarding their negligence and that they were entitled to judgment as a matter of law. Following a hearing on the motion, the District Court granted summary judgment to Pamela and Danielle. McGinnis appeals.

STANDARD OF REVIEW

¶5 We review a district court's summary judgment ruling de novo, using the same Rule 56, M.R.Civ.P., criteria applied by the district court. Herron v. Columbus Hosp. (1997), 284 Mont. 190, 192, 943 P.2d 1272, 1274 (citing Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 282, 927 P.2d 995, 997). Rule 56(c), M.R.Civ.P., provides, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

¶6 The party seeking summary judgment bears the initial burden of establishing the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Herron, 284 Mont. at 193, 943 P.2d at 1274 (citation omitted). If this burden is met, the nonmoving party must come forward with substantial and material evidence showing the existence of a genuine issue of material fact. Herron, 284 Mont. at 193, 943 P.2d at 1274 (citation omitted). Material issues of fact are identified by looking to the substantive law which governs the claim. DeVoe v. State (1997), 281 Mont. 356, 367, 935 P.2d 256, 263.

DISCUSSION

¶7 Did the District Court err in granting summary judgment to Pamela and Danielle?

¶8 The District Court determined that both Pamela and Danielle had established the absence of genuine issues of material fact regarding their negligence and that McGinnis had failed to provide substantial evidence raising a genuine issue of material fact. On that basis, the court concluded that Pamela and Danielle were entitled to judgment as a matter of law and granted their motion for summary judgment. McGinnis asserts that the District Court erred, arguing specifically that he provided evidence raising genuine issues of material fact regarding the negligence of both Pamela and Danielle. We address McGinnis' arguments relating to Pamela and Danielle in turn.

A. Pamela

¶9 McGinnis' complaint alleged that, on the morning of March 10, 1992, Danielle was supposed to be in school but was not, that Pamela knew Danielle was not in school and that Pamela "knowingly and negligently persisted in permitting [Danielle] to run around in unsupervised fashion and be truant from school." He further alleged that Pamela's negligence in this regard was a direct and proximate cause of the high-speed car chase which resulted in his injuries. Although the complaint does not specifically so state, McGinnis contended in the District Court that his claim against Pamela was that she negligently entrusted the use of the Mercury to Danielle.

¶10 We previously have recognized two theories on which a negligent entrustment claim may be based. See Williams v. State Medical Oxygen & Supply (1994), 265 Mont. 111, 114, 874 P.2d 1225, 1227. One theory of negligent entrustment provides that the owner or one in control of a thing and responsible for its use who is negligent in entrusting it to another can be held liable for such negligent entrustment. Williams, 265 Mont. at 114-15, 874 P.2d at 1227 (citing Restatement (Second) of Torts § 308(1965)); see also Bahm v. Dormanen (1975), 168 Mont. 408, 411, 543 P.2d 379, 381. The second theory provides that a person who supplies a chattel to another whom the supplier knows or has reason to know is likely to use it in a manner involving unreasonable risk of physical harm is subject to liability for the resulting physical harm. Williams, 265 Mont. at 114, 874 P.2d at 1227 (citing Restatement (Second) of Torts § 390 (1965)). McGinnis' arguments that the District Court erred in granting summary judgment to Pamela implicate both theories of negligent entrustment.

¶11 McGinnis initially argues that there were genuine issues of material fact that Pamela owned or had control of the Mercury and negligently entrusted its use to Danielle. This argument falls under the first negligent entrustment theory discussed above. In order for a person to be liable under this theory, the person must be the owner, or in control, of the vehicle and negligently entrust that vehicle to another. Williams, 265 Mont. at 114-15, 874 P.2d at 1227; Bahm, 168 Mont. at 411, 543 P.2d at 381. With regard to the extent of control over a vehicle necessary to establish such a negligent entrustment claim,

it is clear that the basis of negligent entrustment is founded on control which is greater than physical power to prevent [use of the vehicle]. A superior if not exclusive legal right to the object is a precondition to the imposition of the legal duty.

Bahm, 168 Mont. at 412, 543 P.2d at 382.

¶12 Pamela moved for summary judgment on the basis that she neither owned nor had control of the Mercury. In support of her motion, Pamela submitted her affidavit stating that the Mercury was owned by Alexander Aldridge, that she had not given Danielle permission to use the vehicle on March 10, 1992, and that she did not have the right to give such permission to use the vehicle. Under Bahm, Pamela's affidavit was sufficient to establish the absence of genuine issues of material fact regarding her lack of ownership or control of the Mercury.

¶13 Pamela having satisfied her initial burden as the party moving for summary judgment, McGinnis was required to come forward with substantial evidence--such as affidavits or other sworn testimony--which raised genuine issues of material fact. See Herron, 284 Mont. at 194, 943 P.2d at 1275(citation omitted). To that end, McGinnis submitted his own affidavit which he contends raised genuine issues of material fact regarding whether Pamela had control over the vehicle and whether she entrusted the vehicle to Danielle. The affidavit states that McGinnis had often observed Danielle and her friends driving the Mercury around East Helena and that no one had ever reported the vehicle as being missing or stolen. McGinnis further stated that, to his knowledge, Pamela had never complained to the East Helena Police Department or the Montana Highway Patrol that she had a problem with Danielle using the vehicle without permission and that "[e]very aspect of my investigation revealed that ... Danielle ... had possession of the vehicle with the full knowledge and permission of her mother, Pamela Aldridge."

¶14 The problem with McGinnis' affidavit, however, is that it contains no evidence that Pamela actually owned or controlled the Mercury. Nor does the affidavit establish that Pamela had "[a] superior if not exclusive legal right" to the vehicle as compared to Danielle. See Bahm, 168 Mont. at 412, 543 P.2d at 382. Although McGinnis argues that Pamela "had the power to withhold the use of the vehicle from her daughter," the power to prevent the use of a vehicle is not sufficient to establish the control necessary for a negligent entrustment claim. See Bahm, 168 Mont. at 412, 543 P.2d at 382. Given the Bahm requirements for a negligent entrustment claim, we conclude that McGinnis' affidavit does not raise a genuine issue of material fact regarding Pamela's ownership or control of the vehicle.

¶15 McGinnis also asserts, however, that his affidavit raises a genuine issue of material fact that Danielle was using the Mercury on March 10, 1992, with Pamela's permission and that this is sufficient to preclude summary judgment on his negligent entrustment claim against Pamela. In essence, this is an argument under the second of the negligent entrustment theories discussed above which provides that a person may be held liable for damages when he o...