38 Mass. App. Ct. 271 | Mass. App. Ct. | 1995
Marlene Mitchell was injured when the motorcycle on which she rode as a passenger was in an accident with an automobile driven by Frank Nowak. To recover for those injuries, she brought this action against Nowak and the automobile’s owner, Hastings & Koch Enterprises, Inc. (Hastings & Koch). Hastings & Koch cross-claimed against Nowak and filed a third-party complaint against Steven Hunter and Ray Stone Pontiac, thought to be the operator and owner, respectively, of the motorcycle. Mitchell amended her complaint to state claims against the same two defendants. A jury, on special questions, returned verdicts against all the defendants except Steven Hunter, assigning (under the comparative negligence law, G. L. c. 231, § 85) percentages of fault. The trial judge then ordered entry of a judgment, apportioning Mitchell’s total damages, found by the jury to be $150,000, against the defendants
The circumstances of the accident were only dimly illuminated by the evidence at trial. The Nowak car, it was clear from the physical evidence, had been traveling northbound and then crossed the southbound lane and crashed into a concrete wall on the west side of the road. The motorcycle lay in the road, apparently on the southbound side,
Another version of the accident came in over objection. One Lavonda Bobb testified that she had been at a bar the night of the accident drinking with her “very good friend” Mark Daigle, and that Mitchell, also drinking at the bar, and an acquaintance of both, had come over and pestered Daigle incessantly to give her a ride on his “bike.” Lavonda Bobb had eventually departed, leaving Daigle and Mitchell together. Later that night, about 4:00 a.m., two hours after
Other facts will be mentioned in connection with the arguments to which they pertain.
1. Declaration of a deceased person. Hastings & Koch objected to Lavonda Bobb’s recitation of Mark Daigle’s version of the accident, casting the blame on Nowak. General Laws c. 233, § 65, creates an exception to the hearsay rule for the declaration of a deceased person, provided the court makes a preliminary finding that the declaration was “made in good faith and upon the personal knowledge of the declarant.” See Old Colony Trust Co. v. Shaw, 348 Mass. 212, 216 (1964). We do not understand Hastings & Koch to argue that, on the evidence before him, the judge could not properly find Daigle’s alleged statement to Lavonda Bobb to have been made in good faith.
There is little to the argument. It is not contended that a judge, having properly admitted statements of a deceased person in evidence, may not instruct the jury to scrutinize them and to consider the declarant’s motive in making them. As to the judge’s failure to articulate the preliminary findings, that would have been the better practice; but the decisions are legion to the effect that admission of the deceased person’s alleged statements imports findings by the judge of that person’s personal knowledge and good faith. See, e.g., Stanton’s Case, 331 Mass. 378, 379-380 (1954); Ricciutti v. Sylvania Elec. Prods., Inc., 343 Mass. 347, 351 (1961); Reni v. Courtney, 4 Mass. App. Ct. 235, 237 (1976). The trial judge’s remark does not indicate to us that he misunderstood the prerequisites for admission of a deceased person’s statements. It would take a clearer showing to make us conclude that such was the case.
2. Hastings & Koch’s responsibility for Nowak’s conduct. With Mark Daigle’s statement received in evidence through Lavonda Bobb’s testimony, the jury had ample basis for concluding that the accident occurred primarily as a result of Nowak’s losing control of his car.
Though ardently pressed, the argument is without legal merit. Under G. L. c. 231, § 8 5A, if a car owned by a dealer, bearing its dealer plates, is involved in an accident, the dealer is prima facie responsible for the driver’s conduct.
3. Negligent entrustment. Hasting & Koch was found liable also on a count alleging that it had negligently entrusted the car to Nowak. Liability on this theory is predicated on
There was another basis, however, for the finding of negligent entrustment. There was evidence that Nowak’s driving record had led to suspension of his operator’s license for two years as an habitual traffic offender and that the accident had occurred during the period of suspension. Even if Hastings’ actual knowledge of the suspension could not properly be inferred from his general closeness to Nowak, the decisions are clear that a car’s owner has a duty to ascertain that another is properly licensed before permitting him to operate the car. See Gordon v. Bedard, 265 Mass. 408, 412-413 (1929); Leone v. Doran, 363 Mass. at 8-14; Davis v. Walent, 16 Mass. App. Ct. 83, 88-89 (1983). Thus, an owner who permits operation of his car by one whose license has been suspended or revoked, regardless whether he has actual knowledge of that fact, may himself be found responsible, on a negligent entrustment basis, for the negligent operation of the unlicensed driver. This exception to the usual requirement of actual knowledge is based on the affirmative duty imposed by G. L. c. 90, § 12, not .to permit operation by
4. Ray Stone Pontiac and Mark Daigle. The jury’s finding that Ray Stone Pontiac was responsible for the negligence of the operator of the motorcycle (whether Hunter or Daigle) was based on the fact that, as could be found on somewhat contradictory evidence,
5. Inconsistent answers to special verdict questions. Hastings & Koch argues that the judge erred when he allowed the jury to find it liable under both an agency theory and a negligent entrustment theory and to find different percentages of fault for Nowak and Hastings & Koch. It cites no authority — nor did it seek to have the judge modify his instructions or revise the special verdict questionnaire before submission. These omissions provide a sufficient basis to deny review. Cosentino v. Cosentino, 10 Mass. App. Ct. 892 (1980). Commonwealth v. ELM Med. Labs., Inc., 33 Mass. App. Ct. 71, 83 (1992). It is true that, if Hastings & Koch’s liability were based solely on the agency theory, its liability being derivative, would necessarily be identical with Nowak’s. See Gangl v. Ford Motor Credit Co., 37 Mass. App. Ct. 561, 562-563 (1994). Negligent entrustment is an independent (but not inconsistent) basis for liability, involving direct fault on the part of the entruster, which may be greater or less than that of the entrustee. Consider, e.g., an adult who entrusts a loaded firearm to a child: the fault of the child for any ensuing damage might be found negligible, or nearly so, and the fault of the adult the principal cause of the accident. How the distinct bases of liability should have been reflected in the special verdict questionnaire is a question not raised at trial and not presented in this appeal.
The errors do not require a new trial. Because the jury found that Mitchell’s own negligence was not causally related to her injuries, it is immaterial for purposes of judgment that the jury’s assignment of percentages of fault was tainted by error. The only significance of assigning percentages of fault was to determine whether the plaintiff could recover at all from the defendants collectively, and, if so, what percentage of her damages she could collect. Graci v. Damon, 6 Mass. App. Ct. 160, 170 (1978). The comparative negligence law, G. L. c. 231, § 85, is irrelevant to the apportionment of liability among joint tortfeasors. Zeller v. Cantu, 395 Mass. 76, 79-81 (1985). The reversal of the finding against Ray Stone Pontiac thus has no practical impact on the liabilities of the remaining defendants. The same is true of the possibility that a part of the fault attributed by the jury to Hastings & Koch was based on the agency theory. Contrast Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 530-531 (1992), where the plaintiff was found twenty-four percent negligent and the two defendants thirty-eight percent apiece, and reversal against one of the two defendants was held to necessitate retrial. In such a case, “[w]e do not know how the jury might have allocated negligence had they been instructed to allocate negligence only between the plaintiff and the [remaining] defendant,” Laveck v. Pas
There is no merit to the appellants’ other contentions.
Those provisions of the judgment allocating the plaintiffs recovery among the several defendants are reversed. The judgment is to declare that Hastings & Koch, Frank Nowak, and Steven Hunter (who defaulted and who has not appealed) are jointly and severally liable to the plaintiff for her entire damages, with interest. The judgment is to be supplemented by ordering dismissal of the complaint as against Ray Stone Pontiac. Other portions of the judgment are affirmed. No party is to have costs of appeal.
So ordered.
The jury found that Hunter was not the operator of the motorcycle, to whom they assigned ten percent of the fault. Hunter, like Nowak, had defaulted. Judgment was entered against “Steven Hunter (or the operator of the motorcycle).” Hunter has not claimed an appeal.
The jury heard evidence as to the location of the motorcycle after the accident, but only by way of references to a blackboard chalk that is not
Steven Hunter testified at the trial that he had been a friend of Mark Daigle; that Daigle’s license to operate motor vehicles had been suspended; and that Hunter had given Daigle permission to use Hunter’s name and social security number in the event of an encounter with the police. Hunter denied having been himself the driver of the motorcycle.
Its brief does cite Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 620 (1989), for the proposition that, where time for reflecting and a motive to lie exist, it is proper to exclude such a statement; but that decision only affirmed a preliminary finding by the judge that a decedent’s statement had not been made in good faith. It did not suggest that the opposite finding would have been error.
The jury were in a position to determine Nowak’s fault even without the Bobb testimony based on the physical evidence, coupled with Nowak’s fleeing from the accident scene. Most of the physical evidence (apart from the evidence of Nowak’s car having crossed from the northbound to the southbound lane and crashed into a wall on the west side of the road) is obscured from the appellate record, having been received through blind references to a diagram of the accident scene that was drawn on a blackboard (and not photographed or otherwise preserved for purposes of appeal). They were nevertheless evidence from which the jury could draw conclusions.
There was evidence that the plate on the motorcycle was a dealer plate with the numbers 959, but the evidence was confusing whether the plate read 959, 959J, DLR 959, or possibly 959B. The confusion was never resolved because, according to Robert Dress, the owner of the auto repair shop to which the motorcycle was taken after the accident, the license plate was located on the bike before Lavonda Bobb visited the shop and looked at the vehicle, but that after her departure the plate was found to have disappeared.
Dealer and repair plates, intended for transfer among many vehicles, do not import ownership of the vehicle. The sole evidence on ownership from Lavonda Bobb, who said the motorcycle belonged to Daigle, was that she had often helped him clean it. Daigle himself was not shown to have had any connection with Ray Stone Pontiac. Daigle seems possibly to have obtained the plate indirectly through a Ray Stone Pontiac employee, Charles Ewig, who had the use of a dealer plate to drive cars to and from auto auctions. Ewig had an interest in another business, called The Bug House, which was located next to a motorcycle repair business called H & P Cycle. Ewig’s partner in the Bug House was a partner with Steven Hunter in H & P Cycle. Daigle, a close friend of Hunter, “hung out” at H & P Cycle. Mitchell testified that Ewig permitted his Ray Stone Pontiac dealer plates to be used by H & P Cycle. Mitchell’s appeal, directed to another issue (see infra), raises no question whether the judge erred in foreclosing liability based on negligent entrustment by Ray Stone Pontiac of its dealer plate. Cf. McDonald v. Dundon, 242 Mass. 229, 232-233 (1922).
As the case against Ray Stone Pontiac was submitted to the jury solely on an agency theory, it was error to permit the jury to assign percentages of fault to both Ray Stone Pontiac and the motorcycle operator and to cumulate these percentages in arriving at one hundred percent.
We mention two: (1) Hastings & Koch’s argument that the judge improperly instructed the jury that negligent entrustment could be found if Hastings & Koch “knew or should have known” of Nowak’s unfitness to drive has some merit but was not called to the attention of the judge and is therefore waived. Weeks v. Harbor Nat. Bank, 388 Mass. 141, 147 (1983). Zedros v. Kenneth Hudson, Inc., 11 Mass. App. Ct. 1007, 1008 (1981). Such an instruction, in any event, would have had to be qualified by the rule discussed above to the effect that a violation of G. L. c. 90, § 12 — permitting an unlicensed driver to operate a motor vehicle — may warrant a finding of negligent entrustment, whether or not the owner knew that the entrustee was unlicensed. (2) The argument of Mitchell’s counsel to the jury, suggesting a particular numerical breakdown of percentages of fault that they might find, did not in the circumstances represent argument not based on the evidence or an expression of personal opinion. The case relied on by Mitchell, Gardner v. State Taxi, Inc., 336 Mass. 28, 30-31 (1957), was based on the fact that the particular damage figures suggested by plaintiff’s counsel, and his stated basis for calculating them, had no basis at all in the evidence heard by the jury.