Herbert v. Whittle

ROSALYN B. BELL, Judge. Cheryl Marie Herbert, appellant, appeals from a jury verdict in the Circuit Court for Baltimore County awarding $100,000 to Rebecca Lynn Whittle and $112,984 to Forrest L. Whittle, appellees. Ms. Herbert raises the following issues on appeal: “1. Under Maryland law, with certain exceptions not relevant here, does the entrustee of a motor vehicle have a cause of action against the entrustor for negligent entrustment? “2.

Was there evidence of negligent entrustment in this case?” 1 On May 31, 1980, Rebecca Whittle and Cheryl Herbert were seriously injured when the 1971 Mustang in which they were riding collided with a pickup truck driven by Mark Diehl. At the time of the accident, Ms. Whittle had completed eleventh grade and was sixteen years eight months old. She was driving the standard transmission Mustang, although she possessed neither a learner’s permit nor a ²⁷⁶ driver’s license. Ms. Herbert was nineteen years of age at the time and was only casually acquainted with Ms. Whittle.

On the date of the accident, Ms. Herbert and Ms. Whittle were among several other spectators at a band rehearsal in a church hall located in northern Baltimore County. The two women did not plan to meet at the practice. Ms. Herbert attended because her husband set up equipment for the band. Shortly after Ms. Herbert arrived at approximately 6:30 p.m., there was a discussion between Ms. Herbert and Ms. Whittle and both women decided to leave the hall and drive to a location to purchase cigarettes.

Ms. Herbert asked her husband, the owner of the Mustang, for the keys, and she and Ms. Whittle departed. Ms. Whittle and Ms. Herbert disagree about precisely what happened next. According to Ms. Whittle, as the two were walking out to the car, she asked Ms. Herbert if she could drive the Mustang. Ms. Herbert agreed and allowed Ms. Whittle to drive from the church parking lot.

According to Ms. Herbert, it was not until after she drove out of the parking lot that Ms. Whittle asked if she could drive the automobile. The two women switched positions and Ms. Whittle continued driving. There was no discussion about Ms. Whittle’s driving experience or whether she had a permit to drive prior to Ms. Whittle’s taking over operation of the Mustang. In reality, two days prior to the accident Ms. Whittle had completed a driver education course with a grade of B. She also was familiar with the Maryland driver’s handbook.

As for practical driving experience, on four to five occasions Ms. Whittle had driven her mother’s automobile to the end of their one-half mile driveway and back to pick up mail, and had driven her father’s tractor around the yard. In addition, she had driven motor vehicles on approximately 50-70 occasions, including on public highways, although she stated she had never before operated a standard transmission vehicle. Ms. Whittle drove the Mustang for several miles without incident or difficulty. She acknowledged she was very ²⁷⁷ familiar with the area.

The exact events that transpired in the intersection at Bee Tree Road and York Road are sketchy 2 and in dispute. Ms. Whittle asserted that she stopped at the stop sign at the top of the hill on Bee Tree Road and did not observe any cross traffic. She then pulled out into the intersection. She recalls the car stalled in the intersection and was hit by the oncoming Diehl vehicle.

She alleged Diehl was traveling at an excessive rate of speed. Ms. Herbert remembered nothing about the accident. Diehl remembered that the Mustang was, in fact, moving when the two vehicles collided and he stated that he never saw the Mustang in front of him until he hit it. Two eyewitnesses, aged fifteen and eleven at the time of the accident, both stated that the Mustang stopped at the stop sign at the intersection and stalled.

It then rolled back approximately ten feet and stopped. The driver started the automobile again and proceeded through the intersection without stopping at the traffic sign. The Mustang was halfway through the intersection where Diehl’s vehicle struck it. Ms. Whittle was hospitalized for a lengthy period of time as a result of the accident.

She has recovered substantially, although there remains some permanent injury. The record does not reveal the extent of Ms. Herbert’s injuries except that she sustained a “severe concussion,” and was under the care of a neurologist or neurosurgeon for a year after the accident. Forrest Whittle brought suit individually and as parent and guardian of Ms. Whittle against Ms. Herbert, her ²⁷⁸ husband as owner of the Mustang, Mark Diehl, and his father as owner of the truck. The action against the Herberts was based on the allegation that Ms. Herbert was the agent of Mr. Herbert and that she negligently entrusted the Mustang to Ms. Whittle with knowledge that Ms. Whittle was an unlicensed and inexperienced driver.

The action against the Diehls alleged negligence on the part of Mark Diehl, an agency relationship between Diehl and his father, and negligent entrustment on the part of his father. 3 The Diehls filed a cross-claim against the Herberts. Before the matter came on for trial, Ms. Whittle reached the age of majority and was directed to file suit on her own behalf. That suit was consolidated for trial with Mr. Whittle’s suit. Prior to trial, summary judgment was entered in favor of Mr. Herbert.

Summary judgment based on limitations was also entered in favor of Diehl’s father with respect to the claim of negligent entrustment against him. During the trial, judgment was also entered in favor of Diehl’s father as to the agency count. The jury awarded verdicts against Ms. Herbert and exonerated Mark Diehl. Ms. Herbert submitted a Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial.

The court took the matter under advisement and over a year later denied the motion. Ms. Herbert appealed to this Court. We dismissed that appeal for lack of a final judgment on the Diehls’ cross-claim and on Mr. Whittle’s suit filed on behalf of Ms. Whittle as her parent and guardian. The record was perfected and Ms. Herbert again appealed. ²⁷⁹ L RIGHT OF ENTRUSTEE TO RECOVER AGAINST ENTRUSTOR The Tort of Negligent Entrustment In Rounds v. Phillips, 166 Md. 151, 166-67 , 170 A. 532 (1934), the Court of Appeals recognized the tort of negligent entrustment in Maryland.

This tort, as embodied in the Restatement (Second) of Torts § 390 (1965), has been applied in cases subsequent to Rounds. See Kahlenberg v. Goldstein, 290 Md. 477 , 431 A.2d 76 (1981); Morrell v. Williams, 279 Md. 497 , 366 A.2d 1040 (1976); Curley v. General Valet Serv., 270 Md. 248 , 311 A.2d 231 (1973); Snowhite v. State, ex rel. Tennant, 243 Md. 291 , 221 A.2d 342 (1966); U-Haul Co. v. Rutherford, 10 Md.App. 373 , 270 A.2d 490 (1970). Section 390 provides: “One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” The cause of action for negligent entrustment is based on the requisite knowledge of the supplier of the chattel.

If the supplier knows or should know of the entrustee’s propensities to use the chattel in an improper or dangerous manner, the entrustor owes a duty to foreseeable parties to withhold the chattel from the entrustee. “[T]he principal features of the tort lie in the knowledge of the supplier concerning the dangerous propensities of the entrustee and in the foreseeability of harm.” Kahlenberg, 290 Md. at 488 , 431 A.2d 76 . In the context of supplying an automobile to an incompetent driver, the Court of Appeals in Morrell, 279 Md. at 503-04 , 366 A.2d 1040 , stated: ²⁸⁰ “[T]he doctrine requires scienter and has been applied in cases involving automobiles where the owner knew or should have known that the use of the entrusted car by the entrustee would likely involve unreasonable risk. * * * * * * [T]he doctrine of negligent entrustment may be invoked only against the vehicle owner who knows or should have known that the use would involve an inordinate risk of physical harm.” Under the tort, the entrustee’s conduct in causing the injury is not imputed to the entrustor. See Kahlenberg, 290 Md. at 490 , 431 A.2d 76 ; Rounds, 166 Md. at 160, 165-66 , 170 A. 532 . Instead, the entrustor’s negligence consists of supplying the chattel.

Kahlenberg, 290 Md. at 489 , 431 A.2d 76 . Thus, if the entrustor neither knew nor ought to have known of the inordinate risk of harm, then, even if an injury occurs, those injured are unable to recover on a theory of negligent entrustment. Entrustee as Plaintiff Maryland Courts have never before decided whether a cause of action for negligent entrustment will lie between an entrustee and an entrustor. The cases in Maryland which have discussed the tort involved claims by a third party against the entrustor and the entrustee or the entrustor alone, rather than claims by the entrustee against the entrustor.

Ms. Herbert asserts that Ms. Whittle, as entrustee, is barred as a matter of law from bringing a cause of action for negligent entrustment against her entrustor. She posits that the action for negligent entrustment in the case sub judice required two acts of negligence—that of Ms. Herbert in supplying the chattel and that of Ms. Whittle in actually causing the injury. Ms. Herbert argues that under Comment c to the Restatement, 4 only an entrustee who is “ ‘of a ²⁸¹ class which is legally recognized as so incompetent as to prevent them from being responsible for their actions/ ” or an entrustee who is in a “ ‘condition ... such as to make [her] incapable of exercising the care which it is reasonable to expect of a normal sober adult’ ” may recover against the entrustor. (Brackets in original.) Since, she continues, Ms. Whittle does not meet either criterion, there can be no cause of action by her because her negligence amounted to contributory negligence which, by operation of law, bars her recovery.

Ms. Herbert relies on Curley v. General Valet Service, 270 Md. 248 , 311 A.2d 231 (1973), and Kahlenberg, 290 Md. at 488 , 431 A.2d 76 , to support her position. In Curley, the Court of Appeals did recognize “that the entrustor is only responsible for the subsequent negligent acts of the en-trustee if a reasonable man could have foreseen the negligent acts____” 270 Md. at 267 , 311 A.2d 231 (emphasis added). Similarly, in Kahlenberg , the Court again asserted that the liability of the entrustor is based “upon the negligent entrustment when it operates as a concurrent cause with the negligence of the entrustee.” 290 Md. at 488 , 431 A.2d 76 (emphasis added). The language in these two cases suggests that the entrustee, of legal necessity, must be negligent for the cause of action of negligent entrustment to arise.

Whether the exceptions stated in Comment c to the Restatement or any other exception will be applied in Maryland will have to be decided in another case on another day. We do not need to reach this issue because the ²⁸² entrustee failed to establish the requisite knowledge of the entrustor. 5 We turn then to the evidence in this case.

II

EVIDENCE OF NEGLIGENT ENTRUSTMENT As we stated, proof of the entrustor’s knowledge is an essential element of this cause of action. The entrustor may be charged not only with what he or she actually knew, but with what he or she should have known. Morrell, 279 Md. at 503 , 366 A.2d 1040 . Additionally, if the circumstances suggested that further inquiry was appropriate and, despite such circumstances, the entrustor failed to make a reasonable investigation, the entrustor may be liable.

Tri-State Truck & Equip. Co. v. Stauffer, 24 Md.App. 221, 241 , 330 A.2d 680 , cert. denied, 275 Md. 757 (1975). Finally, an entrustment not negligent in its origin may become so if allowed to persist after the entrustor has learned or has had reason to learn that the entrustee was not qualified to use the chattel. General Valet Serv. v. Curley, 16 Md.App. 453 , 298 A.2d 190 , rev’d on other grounds, 270 Md. 248 , 311 A.2d 231 (1973).

Comment b to the Restatement rule states in pertinent part: “[0]ne who supplies a chattel for the use of another who knows its exact character and condition is not entitled to assume that the other will use it safely if the supplier knows or has reason to know that such other is likely to use it dangerously, as where the other belongs to a class which is notoriously incompetent to use the chattel safely, or lacks the training and experience necessary for such me, or the supplier knows that the other has on other occasions so acted that the supplier should realize that the chattel is likely to be dangerously used, or that the other, though otherwise capable of using the chattel ²⁸³ safely, has a propensity of fixed purpose to misuse it.” (Emphasis added.) Restatement (Second) of Torts § 390 Comment b (1965). Ms. Whittle alleges only that she lacked training and experience. Hence, evidence relevant to the question of negligent entrustment must show that Ms. Herbert knew, or from facts known to her should have known, that Ms. Whittle was likely to use the Mustang in a manner involving an unreasonable risk of bodily harm. To be successful, Ms. Whittle must establish that the accident occurred due to her inexperience and incompetence in operating a standard transmission.

If the stalling occurred because of momentary mechanical malfunction unknown to Ms. Herbert, then even if we were to hold that Ms. Herbert entrusted the vehicle with the requisite knowledge about Ms. Whittle, the entrustment of the vehicle would not be the legal cause of the harm sustained. The mechanical malfunction would amount to an efficient, intervening cause breaking the chain of causation. See Segerman v. Jones, 256 Md. 109, 127-28 , 259 A.2d 794 (1969), quoting Holler v. Lowery, 175 Md. 149, 161 , 200 A. 353 (1938). 6 In addition, we note at the outset that the mere fact that Ms. Whittle did not possess either a learner’s permit or a driver’s license at the time of the accident is important only as it relates to her inexperience with a standard transmission automobile. Since Ms. Whittle admitted that she knew how to drive an automobile, the gravamen of the tort in this case is Ms. Herbert’s knowledge, either subjective or objective, that Ms. Whittle could not operate this particular type of vehicle. ²⁸⁴ Ms. Herbert moved for a Judgment Notwithstanding the Verdict or in the Alternative for a New Trial asserting that there was a dearth of legally sufficient evidence from which the jury could have concluded that she supplied the automobile to Ms. Whittle knowing affirmatively, or at least suspecting, that Ms. Whittle was inexperienced and incompetent in operating a standard transmission.

Appellees, naturally, suggested otherwise and the court agreed. In determining the propriety of this assertion, we are mindful of the posture with which this Court must consider the evidence. We are required to view the evidence and all inferences therefrom in a light most favorable to Ms. Whittle; “[w]e must resolve all conflicts in the evidence in [Ms. Whittle’s] favor and assume the truth of all the evidence and such inferences as may be naturally and reasonably deducible therefrom, in the light most favorable to [Ms. Whittle].” Menish v. Polinger Co., 277 Md. 553, 567 , 356 A.2d 233 (1976). Where all of a party’s evidence taken together does not rise above speculation, hypothesis and conjecture, it is error for a trial judge to deny a motion for judgment notwithstanding the verdict.

Montgomery Ward & Co. v. McFarland, 21 Md.App. 501, 513-14, 515-16 , 319 A.2d 824 (1974). Although it is time consuming to do so, we must examine all the relevant evidence presented since the issue is whether the evidence was sufficient to support the verdicts. The following pertinent evidence relative to Ms. Herbert’s knowledge was adduced at trial. Ms. Whittle’s testimony was sparse at best.

On direct examination, she stated that on the evening in question, she was picked up by a young man to go to the band rehearsal. She averred that she “met” Ms. Herbert at the practice that night, although she did not remember if Ms. Herbert were there when she arrived. Ms. Whittle described the individuals in attendance at the practice as “teenagers” ranging in age from 17 to 23. She testified that after she asked Ms. Herbert if she could drive, Ms. Herbert stated: “If you ²⁸⁵ think you are ready, I will let you drive.” Since this statement was hypnotically induced, 7 it was struck from the evidence and the court issued a cautionary instruction to the jury to ignore this evidence.

On cross-examination, Ms. Whittle related that she met Ms. Herbert one to two years prior to the accident through Mr. Herbert and his cousin, Susan. She related that she saw Ms. Herbert “a few times a week,” since they lived in the same general area, even though Ms. Herbert would not be in her company. When questioned whether her relationship was closer or more frequent with Mr. Herbert rather than with Ms. Herbert, she responded: “Well, I had known him longer---- [H]e was very good friends with my brother.” She also recounted that when the Whittle family members saw Mr. Herbert’s mother or father, they would exchange greetings. A portion of Ms. Whittle’s deposition was also admitted into evidence in defendant Diehl’s case.

This portion was read to the jury by Diehl’s counsel as follows: “Question: Do you recall any discussions with [Ms. Herbert] before the accident, talking about not the date of the accident, but prior to that, about you attending driver’s ed. or your desire to become a licensed driver? “Answer: Nothing more than the fact she knew I was in driver’s ed., knew I was taking it. “Question: How do you recall that she knew that from conversation? “Answer: Casual talk. “Question: Something that you had mentioned to her? “Answer: Uh-huh.” Ms. Herbert’s counsel then requested and received permission to read to the jury the next few lines in the sequence: “[Question:] That was the extent of any discussions prior to the day of the accident with respect to your driving or operating automobiles? ²⁸⁶ “[Answer:] Yes, it was.” Mr. Whittle took the stand and stated in pertinent part that he had never met Ms. Herbert prior to the accident, although he may have known who she was. He acknowledged that Ms. Herbert had never been to the Whittle home and surmised that Ms. Whittle had never been in Ms. Herbert’s home. In her defense, Ms. Herbert testified that she moved to the area in 1978 and had no contact with Ms. Whittle or her family during that year. She also corroborated Mr. Whittle’s account that she had never been to the Whittle house, and asserted that she had never had any contact with the Whittle family, except Ms. Whittle, prior to the accident.

She denied that her husband and his family were friendly with the Whittles. In describing her relationship with Ms. Whittle, Ms. Herbert noted that when she lived with Susan’s family for a period of two months in 1979, she “came to know” Ms. Whittle when Ms. Whittle visited Susan on three or four occasions. Ms. Herbert affirmatively stated that other than band practice, she had no social contact with Ms. Whittle and for the couple of months she had been attending rehearsal, the two were both in attendance on only five or six occasions. Her testimony also revealed that she had no plans to meet Ms. Whittle at band practice on the evening in question and did not know at what time Ms. Whittle arrived.

With respect to Ms. Whittle’s driving experience, Ms. Herbert averred, contrary to Ms. Whittle’s deposition, that they had never discussed whether Ms. Whittle was taking a driver education course. On cross-exahiination, her testimony disclosed that on the few occasions when Ms. Whittle visited Susan, she did not know how Ms. Whittle arrived or departed or how long she would stay. When asked if she spoke to Ms. Whittle during those visits, Ms. Herbert