Was Owner Liable to Estate for Negligent Entrustment?
Samuel Shepard, who was 18 years old and had a driver’s license at the time, and his brother, Frank Shepard, saw the 2010 Lamborghini of Michael Power in the parking lot of a bar in Suffolk County. Upon exiting the bar, Power saw Samuel and Frank, both of whom he knew previously, admiring the Lamborghini. Thereafter, Power permitted Frank and then Samuel to drive the Lamborghini while Power was a passenger. While Samuel was driving, he lost control of the Lamborghini, which hit a guardrail, causing him to be ejected from the Lamborghini and to sustain injuries from which he ultimately died.
Maria Shepard, Samuel’s mother, filed a lawsuit against Power asserting causes of action alleging negligence, negligent entrustment, vicarious liability predicated on Vehicle and Traffic Law § 388, and wrongful death. Power moved to dismiss the third cause of action alleging vicarious liability predicated on VTL§ 388. Supreme Court denied the motion and, in a prior appeal, the Court reversed so much of Supreme Court’s order as denied Power’s motion, holding that VTL § 388 did not permit a negligent driver, or the driver’s estate, to recover damages against the owner of a vehicle who permitted another to drive the vehicle for injuries resulting from the driver’s own negligence.
While the prior appeal was pending, Power moved for summary judgment dismissing the complaint. In support of his motion, Power submitted a report prepared by Shepard’s expert, Neil Hannemann. In his report, Hannemann, an automotive engineer with experience in the design, development, testing, and operation of motor vehicles, opined that the Lamborghini was in a class of high-performance vehicles referred to as “supercars,” and that such high-performance vehicles posed risks and dangers beyond those of other vehicles because they could accelerate more quickly and achieve higher rates of speed. He further opined that, prior to entrusting such a vehicle to another, a reasonable owner would confirm that the individual had experience driving similar vehicles, would provide instruction and discuss limitations on the operation of the vehicle and would require that the individual driving the vehicle obey speed limits and traffic laws.
Power also submitted a copy of the transcript from his deposition, at which he testified that he had consumed approximately three alcoholic beverages while at the bar, did not know Samuel’s driving experience, and did not ask him if he had experience driving a car similar to the Lamborghini. According to his deposition testimony, when Samuel started to drive the Lamborghini, Power told him, “[i]t’s just a car, and it only does what you make it do.” Power further testified during his deposition that, while he was driving, Samuel switched the car to manual mode and used the paddle shifts on the steering wheel. Power testified that he raised his hand, intending to communicate to Samuel to slow down but he did not actually tell him to slow down. The Lamborghini’s speed may have reached up to 180 miles per hour right before Samuel lost control.
Shepard opposed the motion contending that Power’s submissions raised triable issues of fact precluding summary judgment and submitted an affidavit from Hannemann. Supreme Court granted Power’s motion for summary judgment dismissing the complaint. Shepard appealed from so much of the order dismissing the first cause of action alleging negligence, the second cause of action alleging negligent entrustment, and so much of the fourth cause of action alleging wrongful death as was premised on negligence and negligent entrustment.
In order to prevail in a negligence action, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards. A negligence action requires an individual to use that degree of care that a reasonably prudent person would have used under the same circumstances. Thus, in order to determine whether liability exists, a jury must compare the defendant’s conduct to that of a reasonable person under like circumstances.
The appellate court found that Power failed to establish his prima facie entitlement to summary judgment dismissing the cause of action alleging negligence. His submissions failed to eliminate triable issues of fact as to whether, under the circumstances presented, Power was negligent in permitting an 18-year-old to drive the Lamborghini at a dangerously high rate of speed, thereby creating an unreasonable risk of harm that caused or contributed to Samuel’s death.
The tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee’s propensity to use the chattel in an improper or dangerous fashion. To establish a cause of action under a theory of negligent entrustment, the defendant must either have some special knowledge concerning a characteristic or condition peculiar to the person to whom a particular chattel was given which rendered that person’s use of the chattel unreasonably dangerous, or some special knowledge as to a characteristic or defect peculiar to the chattel which rendered it unreasonably dangerous. An owner of a motor vehicle may be liable for negligent entrustment if he was negligent in entrusting it to a person he knew, or in exercise of ordinary care should have known, was not competent to operate the car.
The appellate court found that Power failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent entrustment. Samuel’s possession of a driver license was a factor to be considered, but Power nevertheless failed to eliminate triable issues of fact as to whether he had special knowledge concerning a characteristic or condition peculiar to Samuel which rendered his use of the Lamborghini unreasonably dangerous.