Quinonez for and on Behalf of Quinonez v. Andersen

Decision Date27 September 1984
Docket NumberNo. 1,CA-CIV,1
Citation696 P.2d 1342,144 Ariz. 193
PartiesJose Luis Beltran QUINONEZ, for and on Behalf of himself and Norma QUINONEZ, Hilda Quinonez, and Jose Luis Quinonez, Jr., Plaintiffs-Appellants, v. Robert Eugene ANDERSEN, Jane Doe Andersen, his wife; and Roofing Wholesale Company, Inc., a Delaware corporation, authorized to do business in the State of Arizona, Defendants-Appellees. 6421.
CourtArizona Court of Appeals
John P. Otto and Marvin Johnson, P.C., Phoenix, for plaintiffs-appellants
OPINION

JACOBSON, Chief Judge.

This appeal questions whether error was committed in dismissing, in a wrongful death action, a count of the complaint alleging "negligent entrustment" where negligence in causing the death producing injury was admitted.

This action was commenced by appellant, Jose Luis Beltran Quinonez, for and on behalf of himself and his three minor children, Norma, Hilda and Jose Luis, Jr., against appellees, Robert Eugene Andersen and Andersen's employer, Roofing Wholesale Company, Inc., seeking damages for the wrongful death of Guadalupe Quinonez, Jose's wife and the mother of the minor appellants. This case was subsequently consolidated with a similar action brought on behalf of seven other children of Mrs. Quinonez by a previous marriage (the Garcia children).

Prior to trial, the defendants admitted that Mr. Andersen was negligent in operating a semi-truck owned by his employer by running a red light traffic signal and smashing into an automobile in which Mrs. Quinonez was a passenger. It was also admitted that this negligence was the proximate cause of Mrs. Quinonez' death and that Andersen was in the course and scope of his employment at the time of the accident.

Based upon this admission, the defendants moved to dismiss count two of plaintiffs' complaint which alleged that Roofing Wholesale negligently entrusted the semi-truck to Andersen's operation. The alleged facts surrounding the alleged entrustment theory was that Andersen's previous driving record showed that he had been convicted of striking an unprotected vehicle and leaving the scene of an accident; cited for failure to control a vehicle; dismissal of a driving while intoxicated charge under the P.A.C. program; conviction of an additional DWI charge; a citation for failure to stop at a red light; two speeding citations; a citation for failure to yield the right of way to a pedestrian and a citation for failure to yield right of way from a private driveway. It was further alleged that Roofing Wholesale had failed to comply with state and federal regulations requiring that it obtain and review Andersen's driving record. Plaintiffs were also prepared to introduce evidence that although the president of Roofing Wholesale was not aware of Andersen's prior driving record, if he had known about it, Andersen still would have been hired to drive for the company.

The trial court granted the motion to dismiss this count. Following this accident, Andersen killed his mistress and was convicted of murder. The trial court precluded any impeachment of Andersen based upon this felony conviction.

The matter was tried to a jury which awarded a total of $165,000.00 to all of the plaintiffs, including the three minor appellants, in the sum of $35,000 each. A zero award was given to Mr. Quinonez. The seven Garcia children have satisfied the judgment in their favor and are not parties to this appeal.

The issue on appeal are:

1. Did the trial court err in dismissing the negligent entrustment count?

2. Did the trial court err in refusing to allow impeachment for a felony committed after the accident?

3. Was the verdict awarding no damages to Quinonez supported by the evidence? and,

4. Did the trial court properly refuse an instruction on punitive damages?

An additional issue is raised by the appellees, that is, assuming error was committed in the admission of evidence going to damages, can the court grant a new trial on damages where all the beneficial survivors of Mrs. Quinonez are not before the court?

The appellants' basic contention on appeal is that the trial court erred in dismissing as against Roofing Wholesale, individually, the negligent entrustment count of their complaint. To put this issue into proper perspective, this count is only material in allowing the appellants to bring to the jury's attention Andersen's horrendous driving record. In turn, this evidence would only be material to proving "aggravating circumstances" (that is, punitive damages) under A.R.S. § 12-613 1, against Roofing Wholesale, individually, as the negligence of its employee and its respondeat superior liability were admitted. We therefore must determine whether "negligent entrustment", is a tort, separate and apart from proof of respondeat superior liability, and, if so, whether evidence, which would prove that negligence, is admissible as an "aggravating circumstance" under A.R.S. § 12-613.

Before turning to this determination, we dispose of appellees' contention that no new trial for damages can be held since all of the Garcia children have accepted the verdicts and satisfied the judgments awarded them. Appellees urge that under A.R.S. § 12-612(C), it is not only the jury's function to award damages, but also to apportion those damages among the persons who have a statutory right to participate in the award. The argument continues that in absence of all the parties who are entitled to participate in the award (the Garcia children) the jury in a new damage trial cannot exercise the apportionment function and therefore no new trial on damages can occur.

We disagree. A.R.S. § 12-612(C) provides, in part:

The amount recovered in any action for wrongful death shall be distributed to the parties ... in proportion to their damages....

The "proportion" of damages which each of the statutory beneficiaries is entitled to recover is not based upon an equal division among the beneficiaries, but that proportionality must be measured by the individual pecuniary loss suffered by each. Nunez v. Nunez, 25 Ariz.App. 558, 545 P.2d 69 (1976). The Garcia children, by not appealing and by satisfying the judgment establishing their individual pecuniary interest, are now precluded from contending that the amount of their individual pecuniary loss is more than that which they accepted. See Shirley v. Mahoney, 26 Ariz.App. 498, 549 P.2d 593 (1976).

However, since the statutory beneficiaries take on an individual loss basis rather than on a pro rata basis, there is nothing in A.R.S. § 12-612(C) which would prohibit an individual beneficiary from contending and proving that he or she was entitled to a greater portion of the award than other like statutory beneficiaries, and in fact, such a beneficiary is entitled to separate counsel to establish that entitlement. See Nunez v. Nunez, supra. This is true even though there is but "one" plaintiff and "one" judgment. Nunez, Id.

Likewise, because apportionment is based on individual pecuniary loss, there is nothing in A.R.S. § 12-612(C) which prohibits an individual statutory beneficiary from appealing the inadequacy or evidentiary insufficiency of that individual award, regardless of the merits of an award to other statutory beneficiaries. If the appellants can establish that their individual awards were legally defective, they may obtain a new trial on what they, individually, are entitled to recover, there being no statutory basis that other beneficiaries of the same class are entitled to share in that recovery. We, therefore, hold that the absence of any one of the statutory beneficiaries does not preclude initially, or upon a new trial, the jury exercising its statutory function to award individual damages.

We now turn to the issue of whether appellants were entitled to present to the jury Andersen's driving record under a theory of negligent entrustment. Appellees contend that Arizona does not recognize a tort of negligent entrustment separate and apart from the theory of respondeat liability. Authority for this position is found in Lewis v. Southern Pacific Company, 102 Ariz. 108, 425 P.2d 840 (1967) which stated:

If the defendant employees were actually negligent at the time of the accident and proximately caused the accident, this is sufficient to establish the [employer's] liability. But the failure of an employer to hire only competent and experienced employees does not in and of itself constitute an independent ground of actionable negligence.

Lewis can probably be distinguished on the basis that the employees in that case were found by a jury not to have been negligent and therefore the negligence of any employer in hiring such employees was not a proximate cause of the plaintiff's injuries. However, if Lewis stands for anything more, we are of the opinion that it no longer represents the law in Arizona on this subject.

We recently had occasion to discuss Lewis in the context of "negligent hiring" in the case of Pruitt v. Pavelin, 141 Ariz. 195, 685 P.2d 1347 (1984) and concluded that the position taken by Restatement (Second) of Torts, is now the law in Arizona. (See Dissent, Jacobson, C.J.)

Section 307 of Restatement (Second) of Torts (1965) provides:

It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate or defective, that its use involves an unreasonable risk of harm to others.

Comment (d) to the companion section in Restatement (Second) of Agency, § 213 (1952) points out:

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