Piskorski v. Ron Tonkin Toyota, Inc.

• Decision Date: 27 February 2002
• Parties: Michelle PISKORSKI, Appellant, v. RON TONKIN TOYOTA, INC., an Oregon corporation, Respondent, and Nicholas A. Hayes, Defendant.
• Court: Oregon Court of Appeals

41 P.3d 1088

179 Or. App. 713

Michelle PISKORSKI, Appellant, v. RON TONKIN TOYOTA, INC., an Oregon corporation, Respondent, and Nicholas A. Hayes, Defendant.

9811-08218; A 109526

Court of Appeals of Oregon.

Argued and Submitted August 15, 2001.

Decided February 27, 2002.

Maureen Leonard, Portland, argued the cause for appellant. With her on the brief was Peggy S. Foraker, Gresham.

Stephen P. Rickles argued the cause for respondent. With him on the brief were William D. Okrent and Holmes & Rickles, Portland.

Before ARMSTRONG, Presiding Judge, and DEITS, Chief Judge,¹ and KISTLER, Judge.

KISTLER, J.

Plaintiff was injured in a car accident. She sued the other driver, Nicholas Hayes, and his employer, Ron Tonkin Toyota, Inc. The trial court entered judgment in Tonkin's favor after ruling on summary judgment that Tonkin was neither directly nor vicariously liable for Hayes' acts. We affirm.

Because this case arises on Tonkin's summary judgment motion, we state the facts in the light most favorable to plaintiff. Brownstein, Rask, Arenz v. Pearson, 166 Or.App. 120, 122, 997 P.2d 300 (2000). Hayes was a sales manager for Tonkin. He was responsible for negotiating sales, appraising used cars, training salespeople, and assisting with advertising. Tonkin provided Hayes with a company car, or "demonstrator vehicle," and Hayes signed a "Company Car (Demo) Agreement," which required him, among other things, to maintain the car in accordance with the manufacturer's recommended maintenance schedule, keep it clean, and refrain from loaning the car to others.

On November 4, 1997, Hayes left work at Tonkin at approximately 5:00 p.m. He went first to the grocery store and then to a tavern. At approximately 7:30 p.m., Hayes ran a red light and hit plaintiff's car. Plaintiff sued both Hayes and Tonkin. Plaintiff's second amended complaint alleged that Tonkin negligently entrusted Hayes with a demonstrator vehicle when it knew or should have known that he was a dangerous driver. It also alleged that Tonkin was vicariously liable for Hayes' negligence because Hayes was acting within the course and scope of his employment when the accident occurred.

Tonkin moved for summary judgment. It submitted evidence that, in 1994, Hayes had applied for a job at a Tonkin dealership. On checking his driving record, Tonkin learned that he had no moving violations but that he had been involved in an accident in California in 1991. The record did not say who had been at fault. In 1996, Hayes applied to work at another Tonkin dealership. Tonkin checked his driving records again. The check showed no evidence of any license suspensions in the past. It also showed that Hayes had been cited on November 4, 1993, for careless driving. He had been convicted of that offense on December 8, 1993, and had entered into a diversion agreement for driving under the influence of intoxicants.

Tonkin initially denied Hayes the use of a company car because three years had not passed since the 1993 citation. On November 6, 1996, Tonkin gave Hayes a company car to drive because, at that point, three years had passed without incident. Hayes left Tonkin to take another job but soon returned to Tonkin's Honda dealership, where he was given a company car. On October 8, 1997, Tonkin transferred him to its Toyota dealership to work as a sales manager and again provided him with a company car. He was driving a company car when he hit plaintiff's car on November 4, 1997.

Regarding plaintiff's vicarious liability claim, Tonkin submitted an affidavit from its general manager, which stated that Hayes was not working when the accident occurred and that "[n]one of his duties involved driving his vehicle as part of his job." Tonkin's Human Resources Director submitted an affidavit explaining that Hayes' duties were to serve as the desk manager and the used-car manager for the dealership. She also stated that Hayes "had no duties on the job which required him to drive the vehicle he was provided as an employee benefit." She submitted a copy of the company car agreement and repeated that "Hayes had no duties or obligations which were work-related after he left work each day at the dealership. He did not perform any services for the dealership from his home, or at any other premises than the dealership after his normal working hours." Based on that evidence, Tonkin argued that the court should grant its summary judgment motion.

Plaintiff's response was limited. She did not argue that a reasonable juror could infer from Tonkin's evidence that it had been negligent in providing Hayes with a car. Similarly, she did not argue that, in light of the affidavits from Tonkin's general manager and its human resources director, a reasonable juror could infer that Hayes had been acting within the course and scope of his employment when the accident occurred. Plaintiff instead relied solely on an affidavit from her attorney to create a genuine issue of material fact. That affidavit stated:

"I have retained a qualified expert. This expert is available and willing to testify to admissible facts or opinions. I have a good faith belief that the expert's testimony would create questions of fact, which, if revealed by affidavit, would be a sufficient basis for denying Tonkin's motion for summary judgment in its entirety on both claims. The testimony covers both the issue of whether an employee driving a demo is ever off duty and whether any responsible dealer would have allowed this driver to drive one of its vehicles."

Tonkin moved to strike plaintiff's affidavit because it "relate[d] to conclusions of law and not to matters that may be proved by expert evidence." The trial court granted Tonkin's motion to strike, ruling that the issues on which plaintiff's expert sought to testify were not appropriate matters for expert testimony and would not be admissible at trial. Having struck the affidavit, the court ruled that there was no genuine issue of material fact, granted Tonkin's summary judgment motion, and entered judgment in Tonkin's favor. See ORCP 67 B.

On appeal, plaintiff argues that the trial court erred in striking her affidavit because the proffered evidence would have been helpful to the jury in resolving her claims. Tonkin responds that the court's evidentiary ruling was correct. It argues alternatively that, even if the expert's testimony were admissible, the affidavit was still insufficient to create a genuine issue of material fact.

We need not decide whether the expert testimony was admissible. Even if it were, we hold that the affidavit did not create a genuine issue of material fact. On that point, we note that this case arises in an unusual posture. At the summary judgment hearing plaintiff did not argue that, without the affidavit, a genuine issue of material fact existed. Rather, she relied exclusively on the affidavit to create a genuine issue of material fact. It follows that if, as Tonkin argues, the expert's testimony would have added nothing material to plaintiff's claims, the trial court did not err in granting Tonkin's summary judgment motion. See Miller v. Salem Merchant Patrol, Inc., 165 Or.App. 266, 271-72, 995 P.2d 1206 (2000)

(holding that an appellant who challenges a summary judgment ruling is limited to the issues that he or she raised before the trial court).

If a party "is required to provide the opinion of an expert to establish a genuine issue of material fact," an attorney's affidavit asserting that a retained expert will provide admissible evidence is sufficient, without more, to create a factual dispute on that issue. ORCP 47 E; Brownstein, 166 Or.App. at 125, 997 P.2d 300; Stotler v. MTD Products, Inc., 149 Or.App. 405, 408, 943 P.2d 220 (1997).² Unless the affidavit specifies the issues on which the expert will testify, the trial court must presume that the expert will testify "on every issue on which summary judgment is sought." Metropolitan Property & Casualty v. Harper, 168 Or.App. 358, 364, 7 P.3d 541 (2000). When, however, an affidavit specifies the issues on which an expert will testify, the court will presume that those are the only issues on which the expert's testimony will create genuine issues of material fact. Stotler, 149 Or.App. at 409 n. 3, 943 P.2d 220; Moore v. Kaiser Permanente, 91 Or.App. 262, 265, 754 P.2d 615, rev. den. 306 Or. 661, 763 P.2d 152 (1988).

In this case, the affidavit specified that plaintiff's expert would testify: (1) "whether any responsible dealer would have allowed [Hayes] to drive one of its vehicles" and (2) "whether an employee driving a demo is ever off duty." Under Stotler and Moore, the question is whether that testimony would be sufficient to create material issues of fact on plaintiff's negligent entrustment and vicarious liability claims.

We begin with negligent entrustment. "A plaintiff in a negligent entrustment case must prove that there was an entrustment and that the entrustment was negligent." Mathews v. Federated Service Ins. Co., 122 Or.App. 124, 133, 857 P.2d 852, rev. den. 318 Or. 25, 862 P.2d 1305 (1993). There is no question that there was an entrustment in this case. The only question is whether the entrustment was negligent. We note that, because plaintiff does not claim that a special relationship existed between Tonkin and Hayes, Tonkin's actions are measured by a reasonable person standard. Id. at 133-34, 857 P.2d 852; Page v. Sparling, 87 Or.App. 118, 123, 741 P.2d 535, rev. den. 304 Or. 547, 747 P.2d 998 (1987). We also note that, when plaintiff opposed Tonkin's summary judgment motion, she did not argue that the evidence before the court on summary judgment was sufficient, without her expert's affidavit, to avoid summary judgment; that is, plaintiff did not dispute below that Tonkin's evidence—standing alone—showed that a reasonable person would not have been negligent in entrusting Hayes with a car.

The issue thus reduces to the question whether expert testimony that a...