Osborn v. Hertz Corp.

• Decision Date: 28 October 1988
• Docket Number: No. C000242,C000242
• Citation: 252 Cal.Rptr. 613,205 Cal.App.3d 703
• Court: California Court of Appeals Court of Appeals
• Parties: Joan Elaine OSBORN, an Incompetent Person, etc., Plaintiff and Appellant, v. The HERTZ CORPORATION, Defendant and Respondent.

Page 613

252 Cal.Rptr. 613

205 Cal.App.3d 703

Joan Elaine OSBORN, an Incompetent Person, etc., Plaintiff and Appellant, v. The HERTZ CORPORATION, Defendant and Respondent.

No. C000242.

Court of Appeal, Third District, California.

Oct. 28, 1988.

Review Denied Jan. 19, 1989.

Farella, Braun & Martel, Gary S. Anderson, Stephen E. Cone and Mary E. McCutcheon, San Francisco, for plaintiff and appellant.

Matheny, Poidmore & Sears, Douglas A. Sears, Laura L. Taylor and Michael Bishop, Sacramento, for defendant and respondent.

SIMS, Associate Justice.

In this case, we hold that a car rental company is not liable for injuries caused by a drunk driver who had rented a car while sober by presenting a valid driver's license.

The drunk driver is Dennis Ege. In the early morning hours of July 18, 1981, plaintiff Joan Elaine Osborn ¹ was on a date with Ege when he drove the car in which they were riding into a tree, causing plaintiff serious injuries. Defendant The Hertz Corporation (Hertz) had earlier rented the car to Ege.

Before the accident Ege would drink alcohol about once a month, but on those occasions he would get "pretty inebriated." He wondered if he was an alcoholic. After the accident he concluded he was.

Plaintiff contends defendant Hertz negligently entrusted the car to Ege even though Ege was sober and presented a valid California driver's license when he rented the car from defendant. Plaintiff asserts defendant was negligent for failing to investigate further Ege's qualification to drive. Plaintiff argues, among other things, that had defendant conducted such an investigation, it would have discovered that Ege had been twice convicted of drunk driving (the most recent conviction having occurred some seven years earlier) and that Ege's driver's license had been suspended for six months as a consequence.

We conclude defendant was not negligent as a matter of law. We therefore affirm the trial court's entry of summary judgment in favor of defendant.

PROCEDURAL HISTORY

Plaintiff's original complaint alleged in pertinent part that Ege "was incompetent, reckless, and unfit to safely operate an automobile on the public streets and highways. [p ] ... At the time [defendant] supplied and entrusted the automobile to [Ege, it] knew, or in the exercise of reasonable care should have known, that [Ege] was an incompetent, reckless and unfit driver and would create an unreasonable risk of danger to persons and property riding with him or on the public streets and highways."

Defendant answered.

Following discovery, plaintiff moved to amend her complaint. Plaintiff's proposed complaint stated four causes of action. The first was against Ege for negligence. The second was against defendant for negligent entrustment and stated essentially the same claim as the original complaint. The third alleged defendant was negligent for failing to ascertain that Ege was a responsible driver and for failing to warn Ege of the dangers of driving its automobile while under the influence. The fourth alleged defendant intentionally inflicted bodily injury by deliberately failing to screen out potential customers who are likely to drink while driving.

The trial court denied plaintiff's motion for leave to amend, concluding: "a. There is no duty on an automobile rental agency to warn a customer of the obvious dangers of driving while under the influence of alcohol or other drugs; and [p ] b. Plaintiff fails to allege sufficient facts to state a cause of action for willful misconduct."

Defendant then moved for summary judgment on the negligent entrustment claim of plaintiff's original complaint relying on uncontradicted excerpts from Ege's deposition establishing he had not been drinking on the day he rented the car and had presented defendant with a valid driver's license. Defendant reasoned it did not know, nor should it have known, that Ege was incompetent or unfit to drive.

In her opposition plaintiff claimed the question whether defendant knew or should have known of Ege's unfitness was a question for the trier of fact.

The trial court granted the motion, finding defendant had shown the complaint had no merit with respect to the negligent entrustment claim. Judgment was entered for defendant and plaintiff appeals, contending the trial court erred in denying her motion to amend her complaint and in entering summary judgment. ²

DISCUSSION

I

The Trial Court Properly Entered Summary Judgment For Defendant On Plaintiff's Negligent Entrustment Claim.

We first consider plaintiff's claim the trial court erroneously granted summary judgment on her claim for negligent entrustment.

The standard of review of summary judgments is well established. "The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. [Citation.] Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.] [p ] 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' [Citation.] 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' [Citation.]. ' ... [I]ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.' [Citation.]" (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36, 210 Cal.Rptr. 762, 694 P.2d 1134.)

Plaintiff's complaint alleged a claim of negligent entrustment. " 'It is generally recognized that one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness.... [p ] 'Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known to the owner.' [Citations.] [p ] Under the theory of 'negligent entrustment,' liability is imposed on vehicle owner or permitter because of his [or her] own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was proximately caused by the driver's incompetency." (Syah v. Johnson (1966) 247 Cal.App.2d 534, 539, 55 Cal.Rptr. 741; see Talbott v. Csakany (1988) 199 Cal.App.3d 700, 245 Cal.Rptr. 136; Mettelka v. Superior Court (1985) 173 Cal.App.3d 1245, 219 Cal.Rptr. 697; Allen v. Toledo (1980) 109 Cal.App.3d 415, 167 Cal.Rptr. 270; Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81, 156 Cal.Rptr. 254; Jones v. Ayers (1963) 212 Cal.App.2d 646, 28 Cal.Rptr. 223; Hughes v. Wardwell (1953) 117 Cal.App.2d 406, 255 P.2d 881; Owens v. Carmichael's U-Drive Autos, Inc. (1931) 116 Cal.App. 348, 2 P.2d 580; Rocca v. Steinmetz (1923) 61 Cal.App. 102, 214 P. 257; Annot., Liability Based on Entrusting Automobile to One Who Is Intoxicated or Known to Be Excessive User of Intoxicants (1968) 19 A.L.R.3d 1175.)

A rental car company may be held liable for negligently entrusting one of its cars to a customer. (Owens v. Carmichael's U-Drive Autos, Inc., supra, 116 Cal.App. at p. 350, 2 P. 580; see Annot., Rental Agency's Liability For Negligent Entrustment of Vehicle (1977) 78 A.L.R.3d 1170.) In determining whether defendant was negligent in entrusting its car to Ege, defendant's conduct is to be measured by what an ordinarily prudent person would do in similar circumstances. (Owens, supra, at p. 350, 2 P. 580.)

Vehicle Code section 14608 prohibits a rental car agency from renting to unlicensed drivers. ³ (Further statutory references are to the Vehicle Code unless otherwise noted.) A rental car agency may therefore be liable for negligently entrusting a car to an unlicensed driver. (Owens, supra, at p. 352, 2 P. 580.) Other jurisdictions have sensibly recognized a rental car agency may be liable for negligently entrusting a car to a customer known to the agency to be intoxicated at the time of the rental. (See, e.g., Pugmire Lincoln Mercury, Inc. v. Sorrells (1977) 142 Ga.App. 444, 236 S.E.2d 113; Dixie Drive It Yourself Sys. Jackson Co. v. Matthews (1951) 212 Miss. 190, 54 So.2d 263; Tolbert v. Jackson (5th Cir.1938) 99 F.2d 513; Owensboro Undertaking & Livery Ass'n v. Henderson (1938) 273 Ky. 112, 115 S.W.2d 563.)

However, these authorities do not aid plaintiff here. Excerpts from Ege's deposition, which were properly before the court on the motion for summary judgment, established without contradiction that he showed defendant a valid driver's license and had not been drinking before renting the car. Thus, it is undisputed Ege gave defendant no clue that he was then unfit to drive. There is no triable issue whether defendant knew of Ege's unfitness. (See Code Civ.Proc., § 437c, subd. (c).)

Plaintiff claims defendant should have known of Ege's unfitness. (Ibid.) Because Ege did not appear to be unfit, plaintiff argues defendant should have asked him: (1) whether he had a record of driving under the influence; (2) whether he had ever had his license suspended or revoked for drunk driving (see Veh.Code, §§ 13101, 13102); ⁴ (3) whether he had ever been refused automobile insurance; and (4) whether he intended to drive under the influence. Plaintiff claims defendant's entrusting the car to Ege without asking these questions was...