Reeves v. King

• Decision Date: 30 September 1988
• Citation: 534 So.2d 1107
• Parties: Michael REEVES, as administrator of the estate of Dwight Reeves, deceased v. William Doyle KING. 87-787.
• Court: Alabama Supreme Court

Page 1107

534 So.2d 1107

Michael REEVES, as administrator of the estate of Dwight Reeves, deceased v. William Doyle KING.

87-787.

Supreme Court of Alabama.

Sept. 30, 1988.

Robert T. Wilson, Sr., and Garve Ivey, Jr., of Wilson & King, Jasper, for appellant.

Edgar M. Elliott III and LaBella S. Alvis of Rives & Peterson, Birmingham, for appellee.

HOUSTON, Justice.

Michael Reeves appeals from a summary judgment in favor of William King in an action for negligent entrustment. We affirm.

This is the second case appealed to this Court involving a negligent entrustment action against Mr. King. In the first appeal (involving another plaintiff), we affirmed summary judgment in favor of Mr. King, finding an absence of admissible evidence indicating that Mr. King's son, Christopher King ("Chris"), as the entrustee, was incompetent and that Mr. King knew, or by the exercise of reasonable care, should have known that Chris was incompetent and therefore should not have been entrusted with a dangerous instrument such as a handgun. Dunaway v. King, 510 So.2d 543 (Ala.1987). The facts recited in Dunaway are equally applicable to the instant case, and for this reason we quote them in toto:

"On Thanksgiving night of 1984 at approximately 11:00 p.m., Chris, after having been at a nightclub with a friend for several hours, went to his home and obtained his father's truck. Mr. King was asleep at the time. Chris and his friend drove to another nightclub, where an altercation occurred between Chris and Dwight Reeves. Reeves and ... Dunaway left the nightclub and were followed by Chris and his friend, who were in Mr. King's truck. Chris, using a handgun that had been placed in the truck for a hunting trip earlier that day, fired several shots into Dunaway's vehicle. One bullet struck and killed Reeves.... Chris was convicted of murder and sentenced to 20 years in prison."

510 So.2d at 544.

On October 17, 1986, Michael Reeves, administrator of the estate of Dwight Reeves, instituted a suit for negligent entrustment against Mr. King and others. The trial court granted summary judgment in favor of Mr. King and made the judgment final pursuant to Rule 54(b), Ala.R.Civ.P. Reeves appeals as to Mr. King. We affirm.

"The essential ingredients of a cause of action for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) [negligent or wanton use of the entrusted vehicle which proximately caused the plaintiff's damages]; and (5) damages. Mason v. New, 475 So.2d 854, 856 (Ala.1985); Cooter v. State Farm Fire & Casualty Co., 344 So.2d 496, 498 (Ala.1977). This Court has recognized that a cause of action for negligent entrustment is not restricted to automobiles, but may include the entrustment of vehicles, boats, firearms, or explosives. Wilbanks v. Brazil, 425 So.2d 1123, 1125 (Ala.1983); Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 277 So.2d 893 (1973). The elements of a cause of action for negligent entrustment of an automobile and negligent entrustment of a firearm, therefore, are the same.

"It is the primary negligence of the entrustor in providing a motor vehicle or other dangerous instrumentality to an incompetent person which forms the basis of this cause of action. It is therefore essential that the plaintiff prove that the entrustee was incompetent; i.e., that he is 'likely because of his youth, inexperience, or otherwise to use [a chattel] in a manner involving unreasonable risk of physical harm to himself and others.' Mason, supra. Not only must the plaintiff prove that the entrustee was incompetent, but the plaintiff must also establish that the defendant knew, or by the exercise of reasonable care, would have known that the entrustee was incompetent. Cooter, supra."

Dunaway, 510 So.2d at 545-46.

Mr. King supported his motion for summary judgment with affidavits and depositions and, by doing so, made a prima facie showing that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law. The burden then shifted to Reeves to show, through admissible evidence, that a genuine issue of material fact existed.

"Evidence offered in response to a motion for summary judgment, in the form of affidavits or otherwise, must present facts which would be admissible at trial. Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980).

" 'To prevent summary judgment, after the movant has prima facie shown himself to be entitled to judgment as a matter of law, the opposing party must show by admissible evidence that a genuine issue of material fact exists which requires resolution by a factfinder. Alabama Rules of Civil Procedure, Rule 56(e). It is not enough that the opposing party merely disputes or refutes an immaterial fact, nor is it enough that evidence which is inadmissible under the normal rules of evidence is advanced to contravene that of the movant. Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980); Morris v. Morris, 366 So.2d 676 (Ala.1978); Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So.2d 314 (Ala.1979).'

Horner v. First National Bank of Mobile, 473 So.2d 1025, 1027 (Ala.1985)."

Dunaway, 510 So.2d at 544-45. (Emphasis added in Horner.)

Reeves presented two pieces of evidence, a pre-sentence report prepared by the Alabama Board of Pardons and Paroles and the affidavit of Thomas Steele, as tending to show Mr. King's knowledge of his son's violent propensities. Mr. Steele stated that, on July 30, 1983, he had an altercation with Chris during which Chris struck him in the face, causing him to suffer injuries. Mr. Steele further stated that he had told Mr. King of the altercation. The affidavit does not indicate whether Chris used or displayed a gun during the altercation. In view of our decision in Dunaway, this affidavit does not constitute sufficient evidence to establish negligent entrustment. Again, we quote from Dunaway:

"Dunaway attempts to imply that William King knew or should have known of his son's alleged 'violent propensities.' However, Mr. King's deposition reveals that he was aware of only one altercation in which Chris was involved prior to his present offense. Mr. King testified that a gun was not involved in that incident and that Chris was not driving a vehicle at the time. It was his understanding from discussing this incident with other people present that 'the other man jumped on Chris first.' His knowledge of this one incident which did not involve a gun or a vehicle surely does not constitute knowledge of 'violent propensities' exhibited by Chris so as to impose liability upon him for negligent entrustment of a handgun or a vehicle to his 20-year-old son."

510 So.2d at 546. (Emphasis added.)

Reeves also introduced the pre-sentence report as evidence indicating Chris's violent temperament, his proclivity toward starting fights, and Mr. King's knowledge of prior altercations. Reeves authenticated the report and properly laid the foundation for its admissibility, showing that the maker of the report, a state probation and parole officer, prepared it in the regular course of business and that it was the regular course of business to make such a report at the time of the event noted or within a reasonable time thereafter. Rule 44(h), Ala.R.Civ.P.

The parole officer did not base the report upon information she had obtained through personal observation. Instead, she relied on various sources to supply her with the necessary information concerning Chris's criminal record. Consequently, the pre-sentence record contains "double" and "triple hearsay" statements. For instance, the record refers to police reports that incorporate statements of witnesses who had been in prior fights with Chris. The record also contains statements by third parties who relate incidents about Chris's past altercations. Clearly, the presentence report is not based entirely upon the personal knowledge of the maker, the parole officer. Reeves argues that the pre-sentence report should have been admitted into evidence as proof of Chris's incompetence. In support of his position he cites Ex parte Frith, 526 So.2d 880 (Ala.1988), for the proposition that "once the requisite foundation is laid it is believed that the information contained in the record is sufficiently reliable to warrant the court or jury's consideration as to the truth of the recorded information." But, this cannot be interpreted to mean that the business records exception operates like an umbrella, shielding all statements embodied in the record from the hearsay rule. Annot., 77 A.L.R.3d 115 § 8 (1977). A proper foundation must be laid for all statements contained in the business record, not just the maker's, for the truth of the matter asserted therein to be considered. A declarant's statement must have been made pursuant to a routine business duty in order for it to be excluded from the hearsay rule.

However, Rule 44(h), which is based upon the Federal Business Records Act, after providing that the record must be made in the regular course of business, states: "The circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker ... may be shown to affect its weight but they shall not affect its admissibility." (Emphasis added.) This language does not mean that the maker's lack of personal knowledge concerning third-party statements made without first-hand knowledge and not pursuant to a routine business duty has no affect on the record's admissibility. Rather, it means that the maker's lack of personal knowledge of facts that a third party observed pursuant to a routine business duty and then furnished to the maker pursuant to a routine business duty and which the maker records in the record pursuant to a routine business duty, goes to the weight of the record only. While Rule 44(h) does not require the maker to have personal knowledge, statements contained in a...