Mackey v. Dorsey

ALPERT, Judge. In September 1989, appellants, Eddie Mackey, Jr. and Mildred Mackey, filed suit against appellee, Michael R. Dorsey, in the Circuit Court for Prince George’s County seeking damages sustained as a result of a motor vehicle accident that occurred on June 9, 1988. On May 22, 1990, Dorsey filed a motion for summary judgment, which was denied by the Honorable Arthur H. Monty Ahalt on July 2, 1990. On October, 28,1993, Dorsey filed a renewed motion for summary judgment, which was granted by the Honorable Richard Sothoron on April 22, 1994.

This appeal followed. Facts Mr. Mackey is employed as a bus driver for the Washington Metropolitan Area Transit Authority in the District of Columbia. On the morning of June 9, 1988, he was stopped at a bus terminal at the intersection of Thirteenth Street and Pennsylvania Avenue in downtown D.C. While Mackey was waiting for passengers to board his bus, appellee, Michael R. Dorsey, parked his vehicle across the street in the median behind a police car. Dorsey exited his car in order to ask the officer for assistance with his passenger, Audrey Cooper.

Dorsey had picked up Cooper when he found her wandering on the highway on his way to work. She had indicated to him that ²⁵⁵ she was lost and was looking for her mother. 1 According to Dorsey, when he exited his vehicle he took his car keys with him. The officer informed him that he should take Cooper directly to D.C. General Hospital. When Dorsey returned to his vehicle, it did not start.

Dorsey alleges that he then exited the car again in order to look under the hood. The police officer assisted him as he checked some wiring and the car’s battery. He then reentered the car, successfully started the engine, “and exited again only long enough to shut the hood of the car.” “At that time,” Cooper slid over to the driver’s seat and locked the door. Despite efforts by Dorsey and the police officer to stop her, Cooper pulled away from the median and collided with the bus driven by Mr. Mackey.

Cooper was subsequently placed under arrest for unauthorized use of a motor vehicle. Mr. Mackey’s version of what transpired after Dorsey parked in the median is somewhat different. He contends Dorsey exited his vehicle on only one occasion, never left the car with his keys, and never unlatched the hood of the car to check underneath it. The Mackeys brought suit against Dorsey under theories of negligent entrustment (Count II), vicarious liability (Count III), and gross negligence (Count VIII). 2 In granting Dorsey’s motion for summary judgment as to all counts, the lower court stated: The Court feels there is no genuine dispute of material facts as to the fact that Ms. Cooper was not a permissive driver in this situation.

The only time frame that Mr. ²⁵⁶ Dorsey could be presumed to be negligent in any way[,] shape or form by allowing his vehicle to be not under the care of himself, possibly accessible to Miss Cooper is when he exited the vehicle after the police officer and himself were able to start the same to simply close the hood. Based on the affidavits, that appears to be unrefuted.... It is my sense based on the facts before me, that even if this matter went to trial as far as Mr. Dorsey, that a trial judge would direct Mr. Dorsey out at the end of the plaintiffs case. The Mackeys assert that the lower court erred in finding that there were not issues of material fact with respect to each count of their complaint.

Specifically, they contend that there are disputed issues of fact as to whether Cooper was the agent of Dorsey, and whether Dorsey relinquished control of his vehicle to Cooper when he left keys in the ignition and exited the vehicle. Historically, it was only with great reluctance that summary judgment was granted. State and federal courts often “carelessly proclaimed that summary judgment was to be denied if there was any factual dispute or even any inference adverse to the movant which could be drawn from the facts.” Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242 , 603 A.2d 1357 (1992). In a now famous trilogy of cases, Celotex Corp. v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986), Anderson v. Liberty Lobby, Ltd., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986), and Matsushita Elec.

Ins. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986), the Supreme Court articulated the modern standard for summary judgment, which has been cited with approval by this court in Seaboard, 91 Md.App. at 242-45 , 603 A.2d 1357 . In Seaboard, at 243-44, 603 A.2d 1357 , we summarized these three decisions: The [Supreme] Court expressly stated that summary judgment was not a ‘disfavored procedural shortcut.’ Thus, the ‘mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported ²⁵⁷ motion for summary judgment; the requirement is that there be no genuine issue of material fact.’ ‘Factual disputes that are irrelevant or unnecessary will not be counted,’ and when a movant has carried its burden, the party opposing summary judgment ‘must do more than simply show there is some metaphysical doubt as to the material facts.’ ... The mere existence of a scintilla of evidence in support of plaintiffs claim is insufficient to preclude the grant of summary judgment; rather there must be evidence from which the jury could reasonably find for the plaintiff.

(Emphasis in original; citations omitted.) Thus, only a “genuine issue” as to a “material fact” will prevent the granting of an otherwise sufficient motion for summary judgment. A “material fact” has been defined as one that will “somehow affect the outcome of the case.” King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985). In contrast, a factual dispute “relating to grounds upon which the decision is not rested is not a dispute "with respect to a material fact and such dispute will not prevent the entry of summary judgment.” Seaboard Surety Co., 91 Md.App. at 242-43 , 603 A.2d 1357 (quoting Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367 (1973)). Our task in the present case, then, is to determine if there were any such disputes of “material fact” that would prevent the trial court from finding that appellants were not entitled to judgment, as a matter of law, as to all three counts against Dorsey.

I. Negligent Entrustment The tort of negligent entrustment was first recognized by the Court of Appeals in Rounds v. Phillips, 166 Md. 151, 160-61 , 170 A. 532 (1934). The Court adopted the theory of negligent entrustment as expressed in the Restatement (Second) of Torts, currently § 390, which provides: ²⁵⁸ One who supplies directly or through a third person a chattel for 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 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. We recently clarified the elements of negligent entrustment in Wright v. Neale, 79 Md.App. 20, 28 , 555 A.2d 518 , cert. denied, 316 Md. 508 , 560 A.2d 41 (1989), as: (1) The making available to another a chattel which the supplier (2) knows or should have known the user is likely to use in a manner involving risk of physical harm to others (3) the supplier should expect to be endangered by its use. The principal feature of this tort is the knowledge of the supplier concerning the likelihood of the person to whom he entrusts the chattel to use it in a dangerous manner.

Herbert v. Whittle, 69 Md.App. 273, 279-80 , 517 A.2d 358 (1986); Kahlenberg v. Goldstein, 290 Md. 477, 488 , 431 A.2d 76 (1981); Morrell v. Williams, 279 Md. 497, 503-04 , 366 A.2d 1040 (1976). Appellants alleged in their complaint that Dorsey entrusted his vehicle to Cooper knowing that she was intoxicated and/or under the influence of alcohol or drugs. Given her condition, it was highly foreseeable, according to appellants, that placing a dangerous instrumentality in Cooper’s custody would result in physical harm to others. Whether Dorsey knew of Cooper’s propensity to use his car in a dangerous manner or not, we hold that Dorsey did not, as a matter of law, “entrust” his vehicle to Cooper.

Under the first element outlined above, Dorsey must be held to have entrusted or “made available” his vehicle to Cooper. The appellate courts in Maryland have never directly addressed the issue of what constitutes “making available.” The Court of Appeals has stated generally that a “supplier” for purposes of negligent entrustment may be “anyone who has the right to permit and the power to prohibit the use of the ²⁵⁹ chattel.” Kohlenberg, 290 Md. at 489 , 431 A.2d 76 ; see also, Rounds, 166 Md. at 168 , 170 A. 532 . It is not necessary that the person “furnish the chattel to the entrustee in a direct transfer in order to be found liable.” Morris v. Weddington, 74 Md.App. 650, 657 , 539 A.2d 1145 (1988). On the one hand, it could be argued that Dorsey had the “power to prohibit” Cooper from using his vehicle.

Dorsey had the keys to the car in his possession and could have simply taken them with him when he exited the vehicle. We do not believe, however, that the Court intended for this language to include a person whose chattel is stolen. All car owners arguably have the “power to prohibit” others from taking stealing their vehicle. Whether Dorsey failed to exercise this power and whether he was at fault for leaving his vehicle without his keys are issues that would potentially be germane to a negligence claim, rather than a claim for negligent entrustment.

We find it axiomatic that when a vehicle is stolen, as it was here, the owner cannot be said to have supplied, entrusted, or “made available” his or her vehicle. The “making available” of the chattel requires that the supplier do so knowingly or with the intent to supply the chattel to that person. 3 In the case at bar, appellants do not dispute the fact that Cooper took Dorsey’s vehicle without his permission. In the affidavit attached to his motion for summary judgment, Dorsey stated: “I did not know this woman personally and allowed her to enter my vehicle only for the purpose of transporting her to a safe location. In no way did I give this woman permission to drive my car, nor was she my agent.” There was no evidence contradicting this statement.

Indeed, we note that after the accident Ms. Cooper was placed under arrest for unauthorized use of a vehicle. We hold, therefore, that the lower court properly concluded, as a matter of law, ²⁶⁰ that Dorsey was not liable for negligent entrustment. 4 Respondeat Superior Appellants’ second cause of action against Dorsey is based upon a theory of respondeat superior or vicarious liability. In their complaint, appellants alleged that Cooper was acting as Dorsey’s agent when the accident occurred because she was “operating the vehicle with the permission and consent of the defendant Dorsey and within the scope of that permission.” Appellants correctly point out that under Maryland law there is a presumption that “the negligent operator of a vehicle is the agent, servant, or employee of the owner acting within the scope of his employment.” Williams v. Wheeler, 252 Md. 75, 82, 249 A.2d 104 (1969). This presumption is a rebuttable one, however, and where the evidence is uncontradicted that the operator is not the agent, servant, or employee of the owner, the court may properly decide liability as a matter of law.

Id. at 82-83 , 249 A.2d 104 ; Slutter v. Homer, 244 Md. 131, 139-40 , 223 A.2d 141 (1966); Miller v. Shegogue, 221 Md. 292, 294 , 157 A.2d 272 (1960); Salowitch v. Kres, 147 Md. 23, 29 , 127 A. 643 (1925). In the present case, aside from bald allegations in appellants’ complaint, there is no evidence whatsoever that Cooper was acting under any type of authority when she took Dorsey’s car and drove it into Mr. Mackey’s bus. There is ²⁶¹ certainly no evidence that Dorsey gave Cooper express authorization to drive the car. There is also no factual support for appellants’ contention that Dorsey “gave implicit permission to Cooper to operate his vehicle.” Any inference to this effect was directly rebutted by the uncontradicted evidence in Dorsey’s affidavit that he “did not know [Cooper] personally and allowed her to enter [his] vehicle only for the purpose of transporting her to a safe location.” Dorsey had never met Cooper before, and had never allowed her to use his car in the past. 5 We find particularly telling appellants’ response to the following interrogatory: 7.

If it is your contention that the Defendant, Audrey Cooper, was acting as the agent of the Defendant, Michael R. Dorsey, at the time of the occurrence, or was acting within the scope of her employment and in furtherance of the interest if this Defendant, Michael Dorsey, please give a concise statement of facts upon which you rely to support your contention. ANSWER: I contend that Mr. Dorsey was negligent in leaving Ms. Cooper alone in his vehicle with the keys to that vehicle still in its ignition, while Ms. Cooper was in an intoxicated state. This contention amounts to a claim of negligence and provides no support for appellants’ assertion that Cooper was an agent, servant, or employee of Dorsey. The presumption that the driver of an automobile is the agent of the owner has been rebutted in cases where the relationship between the driver and owner is far less attenuated than it is in the case at bar.

In Wheeler, the defendant and his stepson, Brady, had been drinking at a bar for most of the afternoon. Id., Id., 252 Md. at 78 , 249 A.2d 104 . The defendant left the bar without Brady and fell asleep in the back seat of his car. Id.

When Brady later left the bar, he was unable to wake the defendant. Brady took the car keys that the defen ²⁶² dant had left under the sun visor and was in the process of driving the vehicle home when the accident occurred. Id. We held that it was error for the trial judge to refuse to grant the defendant’s motion for a directed verdict as there was no evidence from which a jury could have found that the defendant expressly or tacitly authorized Brady to drive the car.

Id. at 83 , 249 A.2d 104 . It was undisputed that the defendant was sleeping in the back seat of the car when Brady took the keys and drove away. Id. at 82 , 249 A.2d 104 . Moreover, the defendant had never given Brady permission to drive the car in the past.

Id. We stated: [A]s the defendants’ testimony was uncontradicted, the presumption was rebutted, and that in the absence of any other evidence, the question was one for the court to decide as a matter of law. As there was no evidence on which a finding of agency could be based, the jury cannot be allowed to speculate. Id. at 83 , 249 A.2d 104 .

In Miller v. Shegogue, 221 Md. 292 , 157 A.2d 272 (1960), the defendant left his car with an auto repair shop and gave the mechanic permission to “drive it to test it.” Id. at 293 , 157 A2d 272 . Approximately three weeks later, an employee of the shop took the car to drive another employee home. After stopping for a beer and sandwich, the employee became involved in a car accident. The trial court granted the defendant’s motion for directed verdict on the ground that there was no evidence that the driver was the agent, servant, or employee of the defendant.

Id. The Court of Appeals affirmed and agreed with the trial court that “the evidence adduced clearly destroyed the presumption of agency as a matter of law.” Id. at 294 , 157 A.2d 272 . See also, Salowitch v. Kres, 147 Md. 23, 33-34 , 127 A. 643 (1925) (holding presumption rebutted where employee, whose job was not to drive truck, drove it to pick up groceries for another employee). Imputed Negligence Appellants also rely on the theory, not entirely different from their agency theory, that Cooper’s negligence may be ²⁶³ imputed to Dorsey.

In a leading case on imputed negligence, Smith v. Branscome, 251 Md. 582, 595 , 248 A.2d 455 (1968), the Court of Appeals summarized this theory as follows: [U]nder Maryland tort law, an owner because of his presumed control over his car when present though not physically handling the wheel, may be held liable in the event of a collision, to the same extent as if he were manually controlling or operating the vehicle. In such a case the negligence of the driver is said to be imputed to the owner. However, an agency relationship is not necessary to be shown, for the failure of the owner, who is present, to exercise his presumed control makes him liable. (quoting Gray v. Citizens Casualty Co., 286 F.2d 625, 627 (4th Cir.1960)) (citations omitted). 6 The driver’s negligence is imputed to the owner on the basis that “the owner-passenger retains his right to control the movements of the vehicle.” Nationwide Mutual Ins.

Co. v. Stroh, 314 Md. 176, 181 , 550 A.2d 373 (1988). In Powers v. State, 178 Md. 23, 28 , 11 A.2d 909 (1940), the Court stated: It is well established that the owner of an automobile, who is riding in it while driven by another, is not relieved of responsibility because he is not personally at the wheel, when he tacitly assents to the manner in which it is driven.... If the car is negligently operated, it is presumed that the owner consented to the negligence. ²⁶⁴ The above comments recognize that the theory of imputed negligence applies only where the owner is physically present in the automobile when the driver’s negligence occurs. While the appellate courts have never definitively held that the owner’s presence is required, the Court of Appeals has stated that “[o]rdinarily the negligence of an operator of a motor vehicle may not be imputed to the owner who is not present in the vehicle.” Atlantic Mutual Ins.

Co. v. Kenney, 323 Md. 116, 134 , 591 A.2d 507 (1991), Unless there are other facts that support the existence of a right to control on' the part of the owner, no such presumption arises if the owner is absent from the vehicle when the negligence occurs. In the case at bar, Dorsey was not present in the car when Cooper pulled away from the median and collided with Mr. Mackey’s bus. There are simply no facts in the record that support appellants’ contention that Dorsey had the “right to control” the vehicle. We hold, therefore, that the lower court properly granted Dorsey’s motion for summary judgment with respect to Count III of appellants’ complaint.

Even assuming that Dorsey’s absence from the vehicle does not completely preclude the presumption from arising, we believe that the presumption was sufficiently rebutted by the uncontradicted evidence that Cooper took Dorsey’s vehicle without his permission. In Williams, the Court stated that the presumption may be rebutted by a showing “that the owner-passenger relinquished his right to control or was unable to exercise that right.” 252 Md. at 85 . Based on the undisputed facts in the record, Dorsey was unable to exercise his right to control his vehicle. In sum, we agree with the lower court that there were no genuine issues of “material” fact that would preclude it from granting summary judgment as to Counts II and III of appellants’ complaint.

In an affidavit attached to appellants' opposition to motion for summary judgment, Mr. Mackey disputed Dorsey’s claim that he exited his vehicle on two occasions, the second time to close the hood of the car. Mr. Mackey averred that Dorsey exited his vehicle only once, and had never unlatched the hood of his vehicle. "While these are ²⁶⁵ clearly disputes of fact between the parties, the resolution of these disputes will not affect the