Pfund v. Ciesielczyk, 91FU000025

• Decision Date: 04 December 1992
• Docket Number: No. 91FU000025,91FU000025
• Citation: 616 N.E.2d 560,84 Ohio App.3d 159
• Parties: PFUND et al., Appellants, v. CIESIELCZYK et al., Appellees. *
• Court: Ohio Court of Appeals

Page 159

84 Ohio App.3d 159

616 N.E.2d 560

PFUND et al., Appellants, v. CIESIELCZYK et al., Appellees. ^*

No. 91FU000025.

Court of Appeals of Ohio, Sixth District, Fulton County.

Decided Dec. 4, 1992.

William M. Connelly and Michael A. Bonfiglio, Toledo, for appellants.

Van P. Andres, Toledo, for appellees.

HANDWORK, Judge.

This appeal was filed to challenge the decision of the Fulton County Court of Common Pleas to grant summary judgment to three individuals who had been sued by appellants, Lee E. Pfund and Dawn Pfund, following an accident which resulted in serious physical injury to Lee Pfund and alleged loss of consortium for Dawn Pfund. One individual granted summary judgment was appellee William J. Ciesielczyk, the father of a permit-licensed teenage boy who was driving the car that struck Lee Pfund while he was mowing his lawn. The other two individuals granted summary judgment were appellee Jason A. Stubleski and appellee Chad A. Kuney, both licensed drivers, who were also teenagers, and who were riding as passengers in the car which struck Lee Pfund. After summary judgment was granted to appellees, the trial court filed a judgment entry finding no just cause for delay, allowing appellants to properly bring this appeal. The trial court also vacated the scheduled trial date for the temporarily licensed teenage driver and is holding the case in abeyance until this appeal is decided. During the pendency of this appeal, a notice was filed voluntarily dismissing the assignments of error and the appeal as it relates to appellee Chad A. Kuney. Accordingly, we will only consider the assignments of error and supporting arguments which relate to the father and the remaining licensed driver who was present in the car at the time of the accident.

Appellants present two assignments of error:

"A. The trial court erred when it granted summary judgment in favor of defendants Jason Stubleski, and Chad Kuney.

"(1) Pursuant to R.C. 4507.05, Stubleski and Kuney, as licensed passengers, had a duty to assist, instruct or supervise the permittee driver, Michael Ciesielczyk.

"(2) Stubleski and Kuney, as passengers, had a common law duty to warn Michael Ciesielczyk when he was recklessly operating the vehicle.

"(3) Stubleski and Kuney were engaged in a joint enterprise with Michael Ciesielczyk at the time of the accident.

"(4) Michael Ciesielczyk was acting as agent for Stubleski and Kuney at the time of the accident.

"B. The trial court erred when it granted summary judgment in favor of defendant William Ciesielczyk.

"(1) William Ciesielczyk negligently entrusted his vehicle to Michael Ciesielczyk at the time of the accident."

When considering whether a motion for summary judgment should be granted, courts in Ohio are governed by the provisions of Civ.R. 56(C), which states in pertinent part:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to put one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

Keeping this standard in mind, we now review the arguments presented by the parties in this case.

The undisputed facts in this case are as follows. Appellee Ciesielczyk had a teenage son who had a temporary instruction permit for driving on April 22, 1990. A family-owned car was available for the son to drive, but he was instructed to drive only when he was accompanied by a licensed driver. The Ciesielczyk family attended church on the morning of April 22, 1990, and then returned home. The teenage son arranged to go to Wauseon, Ohio, with two of his friends to play in a pickup game of basketball that afternoon. He drove a short distance by himself and picked up appellee Jason Stubleski. Appellee Stubleski was also a teenager, but was a fully licensed driver. He sat on the passenger side of the front seat of the car driven by the temporary permit driver while the two of them drove to the home of a third teenager, Chad Kuney. Chad had some videotapes to return to a rental store in Wauseon, so he brought them along so they could be dropped off after the friends were finished playing basketball. Chad, also a fully licensed driver and a teenager, was seated in the middle of the back seat in the car driven by the permit driver. Both Chad and appellee Stubleski were aware that the driver only had a temporary instruction permit for driving. Both Chad and appellee Stubleski testified in depositions that they had accompanied the permit driver before as licensed drivers and had previously given the permit driver advice about slowing down, watching for traffic, being careful on hills and staying within the proper lane. Neither Chad nor appellee Stubleski could recall whether they gave any advice or recommendations about driving to the permit driver on the day of the accident.

As the teens proceeded toward Wauseon, they crested a hill. A red car was observed by the permit driver in the oncoming lane. He testified he might have been over the centerline, but he was not sure, and he did not know how fast he was driving. In an effort to avoid the oncoming red car, the permit driver turned the steering wheel to the right. He lost control of his car, which left the roadway, entered appellant's yard and struck appellant Lee Pfund while he was mowing his lawn. Lee Pfund suffered several broken bones, including a number of vertebrae, suffered a dislocated jaw, was nearly scalped and nearly had his tongue severed. He has required extensive medical treatment since the accident took place. Appellee Stubleski conceded during his deposition testimony that he had written a statement for the police officers at the scene following the accident in which he estimated that the car he was riding in was traveling seventy to seventy-five miles per hour and was left of center just before it crested the hill and the oncoming red car was seen.

Turning first to appellants' second assignment of error, we consider whether the trial court erred when it ruled that as a matter of law, appellee Ciesielczyk was not liable for negligent entrustment of his vehicle. The Supreme Court of Ohio recognized as early as 1950 that a cause of action can exist against a car owner who negligently entrusts a motor vehicle to an incompetent driver. Gulla v. Straus (1950), 154 Ohio St. 193, 42 O.O. 261, 93 N.E.2d 662. The parameters of the cause of action were explained as follows:

"The owner of a motor vehicle may be held liable for an injury to a third person upon the ground of negligence if the owner knowingly, either through actual knowledge or through knowledge implied from known facts and circumstances entrusts its operation to an inexperienced or incompetent operator whose negligent operation results in the injury." Id. at paragraph three of the syllabus.

Appellants allege that the standard established in Gulla v. Straus is met in this case. Appellants argue that appellee Ciesielczyk knew or should have known from facts and circumstances in this case that his son was an inexperienced or incompetent driver. To support these allegations appellants point to the following facts: (1) appellee Ciesielczyk knew his son was "young and inexperienced"; (2) appellee Ciesielczyk knew his son had only a temporary instruction permit; (3) appellee Ciesielczyk knew the licensed driver accompanying his son was a teenager who had not been licensed for a long period of time; (4) appellee Ciesielczyk did not personally know what level of driving skill or supervisory ability the licensed driver accompanying his son had; and (5) the fact that the accident occurred at all shows the son was an incompetent driver. Appellee Ciesielczyk counters by pointing out that his son had successfully completed a driver's education course, had passed his test and had received a temporary instruction permit, and had successfully driven without incident for over three months prior to the occurrence of the accident. In addition, testimony provided in the record demonstrates that the teenage son had driven farm machinery for several years. Appellee Ciesielczyk states that he did not know, nor did he have reason to know, that his son was an incompetent driver.

After carefully reviewing the record, this court concludes that the trial court did not err when it granted summary judgment to appellee Ciesielczyk. The tender age of a driver alone is not enough to demonstrate that the driver is incompetent. In each of the cases cited by appellants regarding the age of the driver, some evidence existed to demonstrate that not only was the driver young, but also somehow unfamiliar with the vehicle which was being driven when an accident occurred, or was unskilled in driving. See, e.g., Elliott v. Harding (1923), 107 Ohio St. 501, 502, 140 N.E. 338, 338; Buckingham v. Gilbert (1928), 29 Ohio App. 216, 219, 163 N.E. 306, 307; and Fleming v. Hannan (App.1931), 11 Ohio Law Abs. 152, 154. The factor of the driver's possessing only a temporary instruction permit is also insufficient in and of itself to demonstrate that the driver was incompetent. To rule otherwise would be to place every car owner who allows a person possessing a temporary learner's permit to practice driving with the owner's car in risk of automatic liability should the person possessing the temporary learner's permit be involved in an...