Carter v. U-Haul Internatl.Carter v. U-Haul Internatl.
Rendered on October 8, 2009
Blumenstiel, Evans & Falvo, LLC, and James B. Blumenstiel, for appellants.
Eastman & Smith Ltd., Jeffrey M. Stopar, and Stuart J. Goldberg, for appellee U-Haul Co. of Massachusetts and Ohio, Inc.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, P.J.
{¶1} Plaintiff-appellant, Paris Carter (“appellant“), appeals the Franklin County Court of Common Pleas’ entry of summary judgment in favor of defendant-appellee, U-Haul Co. of Massachusetts and Ohio, Inc. (“UHMO“). For the following reasons, we affirm.
{¶3} UHMO is one of 48 separate and distinct U-Haul rental companies that rent equipment to the public, each of which is a wholly owned subsidiary of a single parent company. Each rental company is in charge of all aspects of the vehicle rental business within the geographic confines of a given state or states. For example, UHMO, a corporation organized and existing under the laws of Massachusetts, is in charge of all aspects of the vehicle rental business in Massachusetts and Ohio, including the establishment of moving centers and the appointment of independent dealers who rent U-Haul equipment to the public. Many U-Haul vehicles leased to the public are owned by independent leasing corporations that have no U-Haul affiliation.
{¶4} Appellant‘s complaint sets forth claims against UHMO and U-Haul International based on theories of agency and negligent entrustment, as well as a negligence claim against the unidentified driver and loss of consortium claims on behalf of appellant‘s minor children. Appellant voluntarily dismissed his claims against U-Haul International on October 31, 2007, and we, therefore, address the claims and procedural chronology only as it relates to UHMO. In his agency claim, appellant alleged that the unidentified driver was acting as UHMO‘s agent at the time of the collision, thus rendering UHMO vicariously liable for the driver‘s negligence. Appellant alternatively alleged that UHMO negligently entrusted the U-Haul truck to the driver, in violation of company policies, and that the negligent entrustment was a direct and proximate cause of the collision and his injuries.
{¶5} On December 15, 2006, UHMO filed a motion to dismiss appellant‘s complaint, pursuant to
{¶6} On October 24, 2008, UHMO filed a motion to strike certain evidence, including portions of appellant‘s affidavit. UHMO argued that certain statements in
{¶7} On February 6, 2009, the trial court granted UHMO‘s motion to strike the contested portions of appellant‘s affidavit and granted UHMO‘s motion for summary judgment. The trial court entered final judgment in favor of UHMO on February 13, 2009, and appellant filed a timely notice of appeal.
{¶8} Appellant asserts the following assignments of error for our review:
- The Trial Court erred in striking portions of [appellant‘s] affidavit dealing with his observations, purpose of the truck use and post-accident actions of the driver.
- The Trial Court erred in granting summary judgment on the issue of agency.
- The Trial Court erred in granting summary judgment on the issue of negligent entrustment.
- The Trial Court erred in failing to apply Res Ipsa Loquitur.
{¶9} By his first assignment of error, appellant argues that the trial court erred by striking portions of his affidavit. The decision to admit or exclude evidence, including affidavit testimony, is subject to review under an abuse of discretion standard, and absent a clear showing that the court abused its discretion in a manner that materially prejudices a party, we will not disturb the trial court‘s ruling. Boggs v. The Scotts Co., 10th Dist. No. 04AP-425, 2005-Ohio-1264,
{¶10}
{¶11} The trial court granted UHMO‘s motion to strike with respect to the following portions of appellant‘s affidavit:
6. There were two women passengers in the truck, and the driver was a male Somalian. All three of them appeared to be Somalians, both by their skin color and the wearing apparel on the women‘s heads. * * *
7. After running over me, the truck apparently left the scene at a high rate of speed, ran two or more red lights, was chased by one of the witnesses, but was successful in eluding arrest.
8. I believe these were Somalians, not just because of their looks and wearing apparel, but the area where the accident happened is also a very large contingent of Somalians living in the area. Just across the street and up a little bit was a large apartment complex where a lot of Somalians lived, and then further on up the street, there is a shopping center that is either run by or frequented by many Somalians, and there is a coffee shop run by a Somalian in the area, as well.
9. Nobody I talked to after the accident mentioned that it was an out-of-state license plate. It appeared to be assumed by everybody it was probably just a local move from one Somalian‘s apartment to perhaps another. It was not a large truck that you would expect to see if someone was moving a whole household from out of town. It was a smaller van, rented for $19.95, and from its appearance, it was probably just a local move from one house to another house or one apartment to another apartment in the Somalian community.
{¶12} The trial court concluded that appellant‘s statements regarding the occupants’ national origin and their alleged purpose for using the U-Haul truck were pure speculation, not based upon personal knowledge, and immaterial because they did
{¶13} Even had the trial court erred in striking those portions of appellant‘s affidavit, we would be compelled to conclude that the error was harmless because the stricken portions were irrelevant to the trial court‘s analysis and/or otherwise remained part of the record. The trial court based its decision granting summary judgment primarily on the absence of evidence to identify the U-Haul truck or its driver and the resultant absence of evidence creating a genuine issue of material fact as to whether the driver was an agent of UHMO or whether UHMO negligently entrusted the U-Haul
{¶14} Appellant‘s remaining assignments of error stem from the trial court‘s entry of summary judgment in favor of UHMO. We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. When an appellate court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Brown at 711. We must affirm the trial court‘s judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶15} Pursuant to
{¶16} “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party meets its initial burden, the non-movant must set forth specific facts demonstrating a genuine issue for trial. Id. at 293. Because summary judgment is a procedural device to terminate litigation, courts should award it cautiously after resolving all doubts in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95, quoting Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2.
{¶17} By his second assignment of error, appellant argues that the trial court erred by entering summary judgment in favor of UHMO on his agency claim. Based on the absence of evidence that UHMO owned the U-Haul truck or of any agency relationship between UHMO and the unidentified driver, the trial court found that no genuine issue of material fact existed as to UHMO‘s vicarious liability. We agree.
The owner of an automobile cannot be held liable under the doctrine of respondeat superior in an action for damages for injuries to a third person caused by the negligence of an employee of such owner in the operation of the automobile, unless it is proven that the employee, at the time, was engaged in his employer‘s business and acting within the scope of his employment.
See also Jackson v. Frederick (1949), 152 Ohio St. 423, paragraph one of the syllabus. “Ohio is firmly committed to the rule that mere proof of the ownership of an instrumentality is not enough to permit an inference that the one operating it at a given time was the owner‘s employee or agent acting for or on behalf of his employer or principal.” McDougall v. Glenn Cartage Co. (1959), 169 Ohio St. 522, 524.
{¶19} To recover under the agency theory set forth in Gulla, appellant must establish that UHMO was the owner of the U-Haul truck and that, at the time of the collision, the driver was employed by UHMO and was acting within the scope of his employment. At the heart of UHMO‘s argument in support of summary judgment is appellant‘s inability to identify either the driver or the specific U-Haul truck. UHMO maintains that, without these facts, appellant cannot establish that UHMO is vicariously liable for the unidentified driver‘s negligence.
{¶20} UHMO first argues that the conclusory, alternative allegation in appellant‘s complaint that the driver was acting as UHMO‘s agent is insufficient to create a genuine
{¶21} In further support of its motion for summary judgment, UHMO submitted affidavits from George R. Olds, its assistant secretary, and Dave McGee, a litigation assistant employed by U-Haul International. Olds described the relationship between various U-Haul entities and other independent businesses that rent U-Haul vehicles to the public, stating that UHMO is one of 48 separate and distinct U-Haul rental companies that rent or receive vehicles bearing the “U-Haul” and “$19.95” logos, each of which maintains its own employees. Olds also stated that over 13,000 additional businesses, not owned by any U-Haul entity, also rent and receive U-Haul vehicles. According to Olds, it is impossible to identify the owner or lessor of the U-Haul truck involved in the collision without identifying information such as a license plate number or vehicle identification number. McGee similarly stated that, without a license plate number, vehicle identification number or lessee‘s name, there is no feasible way to
{¶22} Based on its affidavits and other
{¶23} Appellant argued that the evidence before the trial court on summary judgment demonstrated UHMO‘s ownership of the U-Haul truck and that there was no rental agreement, stolen vehicle report or repair related to the U-Haul truck. From the absence of such evidence, appellant argues that reasonable minds could infer that the driver was a UHMO agent transferring the U-Haul truck from one rental location to another at the time of the collision. We disagree.
{¶25} Secondly, appellant‘s supposition that the absence of a rental agreement or stolen vehicle report proves that a UHMO agent was driving the U-Haul truck at the time of the collision is flawed. While UHMO was unable to produce a rental agreement, stolen vehicle report or repair record for the U-Haul truck, McGee‘s affidavit clarifies that the inability to produce those documents does not imply that they do not exist. Rather,
{¶26} In support of his agency claim on appeal, appellant cites Rosenberg v. Reynolds (1918), 11 Ohio App. 66, a case in which the plaintiff was struck by the defendant‘s automobile, operated by the defendant‘s chauffer. The only issue before the appellate court was whether the chauffer was acting within the scope of his employment. The court cited the frequent holding that, where a person is employed for the purpose of operating an automobile, he will be presumed to be acting within the scope of his authority and about his employer‘s business when doing so, and that, if he is not, the employer bears the burden of rebutting the presumption because that fact is peculiarly within the employer‘s knowledge. In Rosenberg, the court concluded that the defendant‘s admissions that he owned the vehicle and employed the chauffer raised an inference that the chauffer was acting within the scope of his employment at the time of the accident. Appellant‘s reliance of Rosenberg is misplaced. Here, unlike in Rosenberg, there is neither an admission nor evidence that UHMO owned the U-Haul
{¶27} In light of the absence of evidence that UHMO either owned the U-Haul truck or employed the driver of that truck, we discern no error in the trial court‘s entry of summary judgment in favor of UHMO on appellant‘s agency claim. There could be no genuine issue as to any material fact because the complete failure of proof on these essential elements of appellant‘s claim necessarily renders all other facts immaterial. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552. Therefore, we overrule appellant‘s second assignment of error.
{¶28} Appellant‘s third assignment of error asserts that the trial court erred by granting summary judgment in favor of UHMO on appellant‘s negligent entrustment claim. Describing a claim of negligent entrustment, the Supreme Court of Ohio has stated that “liability may arise where an owner entrusts his motor vehicle, with permission to operate the same, to a person so lacking in competency and skill as to convert the vehicle into a dangerous instrumentality.” Williamson v. Eclipse Motor Lines, Inc. (1945), 145 Ohio St. 467, 470. “[L]iability in such cases arises from the combined negligence of the owner and the driver; of the former in entrusting the machine to an incompetent driver, and of the driver in its operation.” Id. at 471. This court has stated the elements of a negligent entrustment claim as follows:
* * * The general test for negligent entrustment involves two parts. Liability for negligent entrustment arises “from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience or recklessness is known or should have been known by the
owner.” * * * Not only does the test require the owner to entrust the vehicle to the driver with permission to drive, but the driver must be one who is known to be incompetent, inexperienced or reckless. * * *
Dowe v. Dawkins (Dec. 23, 1993), 10th Dist. No 93AP-860, quoting Williamson, paragraph two of the syllabus.
{¶29} The trial court concluded that, because he failed to identify the driver of the U-Haul truck, appellant could not prove that the driver was operating the truck with UHMO‘s permission, that the driver was incompetent, inexperienced or reckless, and that UHMO knew or should have known of the driver‘s incompetence, inexperience or recklessness. As with appellant‘s agency claim, we must conclude that UHMO was entitled to summary judgment on appellant‘s negligent entrustment claim in the absence of evidence identifying either the U-Haul truck or the driver. The absence of evidence that UHMO owned the U-Haul truck, as discussed above, precludes appellant‘s establishment of the essential elements of his negligent entrustment claim, one of which is that the defendant is the owner of the entrusted vehicle. See Whitaker v. Davis (Jan. 27, 1997), 12th Dist. No. CA96-07-060, citing Gulla. While appellant argues that the driver‘s flight from the scene suggests some incompetence on the part of the driver, such as the lack of a driver‘s license or other “meaningful assurance” required by UHMO‘s rental policies, appellant‘s argument is mere speculation and insufficient to demonstrate a genuine issue of material fact. Moreover, evidence of the driver‘s alleged incompetence would not preclude summary judgment without further evidence that UHMO entrusted the U-Haul truck to the driver and knew or should have known of
{¶30} By his fourth and final assignment of error, appellant contends that the trial court erred by refusing to apply the doctrine of res ipsa loquitur when analyzing UHMO‘s motion for summary judgment. Res ipsa loquitur is a rule of evidence, applied as an exception to the ordinary rule that negligence is never presumed, that allows a plaintiff to prove negligence circumstantially where the facts and circumstances give rise to a probability that the defendant was negligent. Cunningham v. Neil House Hotel Co. (App.1940), 33 N.E.2d 859, 33 Ohio Law Abs. 157; Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio-2804, ¶13. The doctrine of res ipsa loquitur does not alter the nature of the plaintiff‘s claim, but merely offers a method of proving negligence through the use of circumstantial evidence. Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 170.
{¶31} “To warrant application of [res ipsa loquitur,] a plaintiff must adduce evidence in support of two conclusions: (1) That the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.” Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67; Cunningham. The doctrine does not apply where the facts are such that a trier of fact could reasonably infer that the claimed
{¶32} In rejecting appellant‘s res ipsa loquitur argument, the trial court found that appellant confused the requirement that the defendant have exclusive control of the instrumentality causing the injury with a supposed requirement that the defendant have exclusive control of the evidence, but also concluded that appellant failed to produce evidence to satisfy either of the requirements of res ipsa loquitur. The court stated that, without evidence that UHMO owned or leased the U-Haul truck, appellant could not establish that UHMO had exclusive control of the instrumentality that caused appellant‘s injuries. Rather, the court found that the evidence demonstrated that the unidentified driver, not UHMO, had exclusive control of the U-Haul truck at the time of the collision. The trial court also determined that appellant could not establish that the collision would not have occurred absent negligence by UHMO. We likewise conclude that appellant failed to satisfy the basic requirements for application of res ipsa loquitur.
{¶33} In his reply brief on appeal, appellant concedes that res ipsa loquitur does not apply to the collision itself, but maintains that the doctrine nevertheless applies to create a presumption of negligence at the time that UHMO allegedly provided the U-Haul truck to the driver. We disagree. Even assuming that UHMO had exclusive control of the U-Haul truck immediately before possession was transferred to the unidentified driver, there is no evidence that the collision would not have occurred absent negligence on the part of UHMO. It is readily foreseeable that accidents
{¶34} Having overruled each of appellant‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and SADLER, JJ., concur.