Morris v. Weddington

KARWACKI, Judge. On March 5, 1983, an automobile driven by appellee William H. Weddington, Jr., and owned by appellees Donald and Dorothy Ault struck four year old Keith T. Morris, severely fracturing his right leg. In a suit for damages brought in the Circuit Court for Prince George’s County, Brenda S. Morris, individually and as mother and next friend of Keith Morris, appellant, alleged that Weddington’s negligence in operating the vehicle caused the accident and that Mr. and Mrs. Ault had negligently entrusted their automobile to Weddington. Prior to trial, the court granted summary judgment in favor of the Aults.

The jury returned a verdict in the amount of $7,033.45 in favor of Ms. Morris individually, and a verdict in the amount of $1,000.00 in favor of Ms. Morris as mother and next friend of her son, Keith. In this appeal from the summary judgments in favor of the Aults and the judgments entered against appellee Weddington on the jury’s verdicts, appellant presents four questions. I. Did the trial court err in granting summary judgment in favor of appellees Donald and Dorothy Ault?

II

Did the trial court err in refusing to grant a mistrial after the jury had been informed that appellee Weddington lacked automobile insurance? ⁶⁵⁴ III. Did the trial court abuse its discretion in not granting a new trial? IY. Did the trial court err in refusing to propound appellant’s requested voir dire?

I. Negligent Entrustment Our review of the summary judgments appealed from is limited to a determination of whether undisputed material facts set forth in the “pleadings, depositions, answers to interrogatories, admissions and affidavits” filed in the proceedings established that the appellees were not liable to the appellant. Rule 2-501; Berkey v. Delia, 287 Md. 302, 304-05 , 413 A.2d 170 (1980); Marcus v. Bathon, 72 Md.App. 475, 479 , 531 A.2d 690 (1987). Therefore, viewing the record before the hearing judge in a light most favorable to the party against whom the motion was made, we set forth the facts material to the issue of negligent entrustment in the instant case. DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 445 , 418 A.2d 1191 (1980); Schlossberg v. Epstein, 73 Md.App. 415, 423 , 534 A.2d 1003 (1988); DeGroft v. Lancaster Silo Co., 72 Md.App. 154, 160 , 527 A.2d 1316 (1987).

On the morning of March 5, 1983, Weddington drove the Aults’ van to the Morris residence, where he met with Anthony Schaefer, Ms. Morris’s fiance at that time. The two men left in the van to transport a boat trailer from the Weddington residence to another location, accompanied by Ms. Morris’s three children, including Keith. When they returned to the Morris residence later that morning, the three children exited the van through a side panel door. While Mr. Schaefer spoke briefly with Weddington through the side panel door, the children played in the immediate vicinity.

Schaefer then closed the door and proceeded in the direction of the house. When Weddington started to pull away from the curb, he negligently ran over Keith, who was riding a toy cycle. The van that Weddington drove on the day of the accident belonged to Donald and Dorothy Ault, the parents of Wed ⁶⁵⁵ dington’s wife, Donna. In deposition testimony, the Aults admitted that they knew of two instances in which Weddington had been cited for motor vehicle violations prior to the accident involving Keith Morris.

Weddington told the Aults that the first violation was for “spinning the wheels” of his car after he left a bar where he had been shooting pool. In fact, Weddington had been arrested for, and later convicted of, driving while impaired by alcohol and exceeding the speed limit by 30 miles per hour. Donald Ault maintained that he did not know that Weddington had been convicted of driving while impaired by alcohol until the date of his deposition on January 15, 1986. Dorothy Ault testified that Weddington told her that he had, in fact, been arrested for driving under the influence of alcohol and that he was required to attend a remedial driving school, but she could not recall whether she learned this information before or after the accident on March 5, 1983.

The second of Weddington’s motor vehicle violations of which the Aults admitted knowledge prior to March 1983 was for an illegal U-turn. In the two and one-half year period prior to the accident in March 1983, however, Weddington had in fact been convicted of speeding on three separate occasions in addition to the incident which led to his arrest for driving while impaired by alcohol and speeding. As a result of these convictions, Weddington received a restricted license which permitted him to drive only for employment purposes, and his automobile liability insurance policy was cancelled. The restrictions on his license were removed prior to the accident on March 5, 1983.

Donna Weddington was covered by her parents’ automobile liability insurance policy prior to her marriage to William Weddington on July 18, 1981. Shortly after Donna married William Weddington, the Aults offered to include Mr. Weddington in the coverage of that policy. The Aults subsequently declined to include Mr. Weddington on their policy, however, after they learned that his coverage would make their premiums prohibitively expensive. Moreover, when the Aults renewed their insurance policy in January ⁶⁵⁶ of 1982, Mr. Ault executed a rider to their policy which provided: LIMITATION OF COVERAGE EXCLUSION IT IS HEREBY UNDERSTOOD AND AGREED THAT SUCH INSURANCE AS IS AFFORDED BY THIS POLICY DOES NOT APPLY TO ANY AUTOMOBILE WHILE OPERATED BY WILLIAM H. WEDDINGTON.

Donna Weddington drove a 1979 Plymouth Horizon that was titled in her name and that of her father. The Aults knew that William Weddington occasionally used this vehicle and other vehicles owned by the Aults, including their van. The Aults loaned their van to the Weddingtons for the week preceding the March 5, 1983 accident because the Horizon needed repairs. The van was kept at the Wedding-ton residence for that week.

The Aults never told William Weddington that he could not use the van and never required that he ask permission to use it. Nevertheless, on March 4, 1983, Weddington telephoned Mr. Ault and asked him if he could use the van to transport some parts for a car that he was repairing. Mr. Ault gave him permission at that time. Appellant contends that a genuine dispute as to the facts which were material to her negligent entrustment claim existed between the parties on the issue of whether the Aults knew or should have known that William Weddington was an unsafe driver at the time that the Aults loaned their van to the Weddingtons.

Mrs. Ault asserts that summary judgment on appellant’s negligent entrustment claim in her favor was appropriate because only Mr. Ault gave Wedding-ton permission to use the van on March 5, 1983, and he was therefore the sole entrustor of the van. Mr. Ault maintains that he was entitled to summary judgment because his knowledge of Weddington’s driving propensities was insufficient as a matter of law to establish his liability. Maryland has adopted the concept of the tort of negligent entrustment as expressed by the American Law Institute in ⁶⁵⁷ Restatement (Second) of Torts, § 390 (1965). Kahlenberg v. Goldstein, 290 Md. 477, 485 , 431 A.2d 76 (1981); Herbert v. Whittle, 69 Md.App. 273, 279 , 517 A.2d 358 (1986), cert. denied, 309 Md. 49 , 522 A.2d 393 (1987).

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 basis of this tort liability is the knowledge of the supplier concerning the dangerous propensities of the entrustee and the foreseeability of harm. Kahlenberg v. Goldstein, supra, 290 Md. at 488 , 431 A.2d 76 . “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.” Herbert v. Whittle, supra, 69 Md.App. at 279 , 517 A.2d 358 . In assessing liability predicated on what the supplier should have known, if, under the circumstances of the case, further inquiry as to the entrustee’s competence was appropriate and, despite such circumstances, the supplier failed to make a reasonable investigation, the supplier may be liable.

Rounds v. Phillips, 168 Md. 120, 126 , 177 A. 174 (1935); Herbert v. Whittle, supra, 69 Md.App. at 282 , 517 A.2d 358 . A supplier for purposes of the tort of negligent entrustment need not furnish the chattel to the entrustee in a direct transfer in order to be found liable. Kahlenberg v. Goldstein, supra, 290 Md. at 491 , 431 A.2d 76 . Instead, a supplier may be “anyone who has the right to permit and the power to prohibit the use of” the entrusted chattel.

Kahlenberg v. Goldstein, supra, 290 Md. at 491 , 431 A.2d 76 ; Rounds v. Phillips, 166 Md. 151, 168 , 170 A. 532 (1934). ⁶⁵⁸ There is no litmus test to determine whether a supplier had the requisite knowledge of an entrustee’s propensity to use the entrusted chattel in an