Morgan v. Scott, No. 2006-SC-000693-DG.
| Decision Date | 21 May 2009 |
| Docket Number | No. 2006-SC-000701-DG.,No. 2006-SC-000693-DG.,No. 2007-SC-000282-DG. |
| Citation | 291 S.W.3d 622 |
| Parties | Timothy MORGAN, Appellant, v. Candria SCOTT and James E. Scott, Jr., Appellees. and Candria Scott and James E. Scott, Jr., Appellants, v. Moore Pontiac, Buick, GMC, Inc., Appellee. and Moore Pontiac, Buick, GMC, Inc., Cross-Appellant, v. Candria Scott and James E. Scott, Jr., Cross-Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Among other issues, these appeals ask us to examine the extent of a car dealer's liability for injuries arising out of accidents that occur during a test drive. We hold that, at least under the facts presented, the dealer should not have been held liable.
We also consider the question of whether a tortfeasor to whom the jury apportioned only a portion of the liability for the plaintiffs' injuries becomes liable for all of the plaintiff's damages when, on appeal, it is determined that the remaining co-defendant, against whom fault was also apportioned, was not a proximate cause of the injury and should not have been found liable. We conclude that he does.
II. FACTUAL AND PROCEDURAL HISTORY.
The legal questions presented in these appeals are complex, but the essential underlying facts of the appeals are common and simple. Timothy Morgan stopped at Moore Pontiac, Buick, GMC, Inc., to test drive a Chevrolet Silverado pickup truck. After talking about the truck with Morgan for awhile, the salesperson allegedly copied Morgan's driver's license1 and set off with Morgan on a test drive.2 Soon, however, the salesperson realized the truck was low on gas, which necessitated a return to the dealership. The salesperson testified that after refueling, he asked Morgan to wait while the salesperson talked to his manager; but Morgan drove off the lot in the Silverado with his family before the salesperson returned. In contrast, Morgan testified that a salesperson did not accompany him on the first test drive and that, believing he had permission to do so, he drove the Silverado off the lot with his girlfriend and child as passengers. What is undisputed is that Moore Pontiac's company policy required one of its employees to accompany a customer on a test drive.
During the test drive, Morgan lost control of the Silverado, crossed into another lane of traffic, and struck a vehicle driven by Candria Scott. A light misty rain was falling, and Morgan surmised that the Silverado hydroplaned. Candria Scott injured her knees and fractured her left femur.
Candria Scott and her husband, James, sued Morgan and Moore Pontiac to recover for Candria's injuries and James's loss of consortium. The Scotts claimed that Morgan had driven negligently and that Moore Pontiac had failed in its duties to ensure the safe operation of its vehicle. The case eventually went to trial, where Morgan admitted causing the accident. The trial court directed a verdict on Candria's past medical bills ($274,339.28). The jury apportioned fault equally between Moore Pontiac and Morgan.3 In addition to the past medical bills, the jury awarded Candria $1,160,200.00 in future medical bills; $500,000.00 in past mental or physical pain and suffering; $2,000,000.00 in future mental or physical suffering; and awarded James $100,000.00 for loss of consortium. The trial court entered judgment accordingly.4
Moore Pontiac and Morgan each filed an appeal. The Court of Appeals affirmed as to Morgan, but reversed as to Moore Pontiac, finding that "Moore Pontiac's adoption of the internal policy [requiring a Moore Pontiac employee to be present for test drives] does not expose it to liability to Scott...." A divided panel of the Court of Appeals, however, granted the Scotts' petition for extension of its original opinion and issued a new opinion in which it added language remanding the case "with directions that Morgan be designated as liable for 100% of the assessed damages." Morgan, the Scotts, and Moore Pontiac all filed petitions for discretionary review. We granted discretionary review in all three cases, and we resolve all three in this combined opinion.
III. ANALYSIS.
The Scotts contend that the Court of Appeals erred in ruling that Moore Pontiac had no legal liability for the accident and the resulting injuries. We disagree.
It has long been the law in this Commonwealth that a vehicle's owner, such as a dealership, is not liable for injuries sustained by a third party during a test drive if the vehicle's owner or a representative of the owner, such as a salesperson, is not present in the vehicle during the test drive. On the other hand, a vehicle's owner may potentially be liable for injuries sustained by a third party if the owner or his or her representative is present during the test drive.5 Our holdings on those issues appear to be in accord with the general rule in these types of cases.6
The Scotts do not contest this settled rule of law. They actually concede the established Kentucky precedent regarding a dealer's liability for an accident occurring during a test drive.7 But the Scotts contend that precedent is not pertinent because they argue that Moore Pontiac's liability arises from its own independent acts of negligence rather than being held vicariously liable for Morgan's negligence. Toward that end, the Scotts present two theories under which they contend Moore Pontiac should be liable for their injuries. First, they contend that Moore Pontiac's actions (or inaction) cause it to be liable under our oft quoted statement in Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell that "every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury."8 Certainly we agree with the principle espoused in that statement, but we disagree with the Scotts that its application leads to liability for Moore Pontiac.
First, Claywell is factually dissimilar to the case at hand because Claywell involved dram shop liability. And we later noted that much of our holding in Claywell might have been superseded by statute.9 Second, and more importantly, our language in Claywell did not speak of creating new causes of action. Rather, our statement was an expression of the general principle that each member of the public owes the remainder of the public a duty to exercise reasonable care in his or her everyday affairs.
As the Court of Appeals has noted, Claywell is often invoked 10 Indeed, we remain committed to the longstanding tort principle that liability based upon negligence is premised upon the traditional prerequisites, such as proximate cause and foreseeability.11 Simply put, the concept of a universal duty of care is not so broad as to lead to a conclusion that a vehicle's owner has automatically breached a legal duty of care simply by permitting an apparently competent driver to take the owner's vehicle for a test drive. Or, in other words, a vehicle owner generally satisfies his or her duty of care in test-drive situations simply by determining before the test drive that the prospective purchaser and test driver is duly licensed and is otherwise not obviously impaired.12 Since Moore Pontiac met its relatively low burden to ascertain that Morgan was not an incompetent driver we reject the Scotts' claim that the unfortunate circumstances of this case are so extraordinary as to hold Moore Pontiac liable for a purported breach of ordinary care to the Scotts.13
The Scotts' second and closely related theory of recovery is that Moore Pontiac assumed a duty of ordinary care to the Scotts. The gist of the Scotts' argument is that Moore assumed a duty of care toward the Scotts, and the rest of the public, by adopting and then failing to follow its own in-house rule requiring a Moore Pontiac employee to accompany Morgan on his test drive. We disagree.
We have previously adopted Restatement (Second) of Torts § 324A regarding the elements necessary for liability for the breach of a voluntarily assumed duty.14 Under § 324A, "[o]ne who undertakes ... to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if the person's "failure to exercise reasonable care increases the risk of such harm," or if "the harm is suffered because of reliance of the other or the third person upon the undertaking."15 The Scotts cannot meet these criteria.
We agree with the Court of Appeals that the Scotts could not have reasonably relied upon Moore Pontiac's policy regarding having a salesperson accompany a test driver because the evidence showed that the Scotts were unaware of the policy's existence. After all, one cannot logically rely upon an unknown. And even if the Scotts had somehow divined the existence of Moore Pontiac's in-house policy before the accident, they have pointed to no evidence tending to prove that Candria Scott drove differently in reasonable reliance upon Moore Pontiac's internal policy.
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