BERKS COUNTY LAW JOURNAL Jared M. Good, et al v. Todd M. Whitt, Et al. Vol Civil procedure: Summary Judgment; Negligent Entrustment.

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1 62 JARED M. GOOD, Administrator of the ESTATE OF JAY R. GOOD, a/k/a JAY ROBERT GOOD, deceased, and as Trustee Ad Litem on behalf of all persons entitled to recover damages from the named Estate; JARED M. GOOD, Administrator of the ESTATE OF JEAN M. GOOD, a/k/a DORIS JEAN GOOD, deceased and as Trustee Ad Litem on behalf of all persons entitled to recover damages from the named Estate; and JACY GOOD, Plaintiffs v. TODD M. WHITT, KATHY WHITT, JOSEPH J. LEONARDO, JR., GOLF VIEW FARM, INC., CLOVER FARMS DAIRY COMPANY, and CLOVER FARMS TRANSPORTATION CO., Defendants Civil procedure: Summary Judgment; Negligent Entrustment. 1. Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. 2. Summary judgment is proper in cases in which an adverse party, who will bear the burden of proof at trial, has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury. 3. It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. 4. Under a theory of negligent entrustment, liability is imposed upon a defendant because of his or her own actions in relation to the instrumentality or activity under his or her control. The entrustor's liability is not dependent on, derivative of, or imputed from the entrustee s actual liability for damages. 5. Here, in granting the Defendant s Motion for Summary Judgment, the Court found that the Plaintiff failed to impute knowledge to the Defendant under its theory of negligent entrustment. JARED M. GOOD, Administrator of the ESTATE OF JAY R. GOOD, a/k/a JAY ROBERT GOOD, deceased, and as Trustee Ad Litem on behalf of all persons entitled to recover damages from the named Estate; JARED M. GOOD, Administrator of the ESTATE OF JEAN M. GOOD, a/k/a DORIS JEAN GOOD, deceased and as Trustee Ad Litem on behalf of all persons entitled to recover damages from the named Estate; and JACY GOOD, Plaintiffs v. TODD M. WHITT, KATHY WHITT, JOSEPH J. LEONARDO, JR., GOLF VIEW FARM, INC., CLOVER FARMS DAIRY COMPANY, and CLOVER FARMS TRANSPORTATION CO., Defendants. IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA. CIVIL ACTION - LAW NO , I.D. #2. Scott E. Lash, J. James H. Thomas, Esquire, attorney for Plaintiffs, Jared M. Good, Administrator of the Estate of Jay R. Good, a/k/a Jay Robert Good, deceased, and as Trustee Ad Litem on behalf of all persons entitled to recover damages from the named Estate; Jared M. Good, Administrator of the Estate of Jean M. Good, a/k/a Doris Jean Good, decreased, and as Trustee Ad Litem on behalf of all persons entitled to recover damages from the named Estate; and Jacy Good

2 63 Jeffrey B. Rettig, Esquire, attorney for Defendant, Kathy Whitt 1 DECISION AND ORDER, Scott E. Lash, J. October 20, 2011 The matter before this Court is the Motion of Defendant, Kathy Whitt, (hereinafter Kathy Whitt ), for Summary Judgment. In their Complaint, Plaintiffs claim that Kathy Whitt should be held liable because she negligently entrusted her motor vehicle to her son, Defendant, Todd M. Whitt, (hereinafter Todd M. Whitt ). Kathy Whitt s Motion argues that the negligent entrustment theory is unsupported by the record. Argument was held on October 17, For reasons set forth, this Court grants the Motion for Summary Judgment. According to the Complaint, on May 18, 2008, a tragic motor vehicle accident took place on Route 222 near Genesis Drive in Maidencreek Township, Berks County, Pennsylvania, taking the life of a married couple, Jay R. Good and Jean M. Good, and severely injuring the couple s daughter, Jacy Good. Also involved was a 1995 Plymouth motor vehicle owned by Kathy Whitt and operated by her son, Todd M. Whitt, and a tractor trailer owned by Defendant, Golf View Farm, Inc., and operated by Defendant, Joseph J. Leonardo, Jr. Plaintiffs allege that Todd M. Whitt, traveling westbound from Genesis Drive, ignored a red traffic signal at the intersection, and entered onto Route 222. Defendant Leonardo, traveling northbound on Route 222, observed the Whitt vehicle and swerved his tractor trailer from his lane of traffic to the left, directly into the southbound lane of 222, crashing into the vehicle occupied by the Good family. Plaintiffs also allege that at all pertinent times, Todd M. Whitt was engaged in the use of a handheld cell phone. The Complaint alleges that Kathy Whitt negligently entrusted her motor vehicle to her son when she knew or should have known he was incapable of operating the motor vehicle in a safe and lawful manner,... when she knew or should have known he was an incompetent and unsafe driver,... when she knew or should have known he was likely to use the motor vehicle in a manner that would create an unreasonable risk of harm to others,... when she knew that he had a cell phone and used it while driving,... and without undertaking adequate measures to ensure that [her son] was capable of operating said motor vehicle in a safe and lawful manner. 2 Kathy Whitt files the within Motion for Summary Judgment, alleging that there are no facts in the record to support the negligent entrustment allegations. She points out that at the time of the accident, Todd M. Whitt was duly licensed to operate a motor vehicle. He had attended driver education school prior to obtaining his license. He had spent approximately one (1) year driving vehicles with a learner s permit prior to obtaining his license. Prior to the accident on May 18, 2008, Todd M. Whitt had never been involved in any other motor vehicle accident, nor had he received any traffic citations. At no time had Kathy Whitt observed or otherwise learned that Todd 1 The remaining Defendants did not participate. 2 Paragraph 30 of the Complaint.

3 64 M. Whitt was an incompetent or unsafe driver. At no time did Kathy Whitt observe or was otherwise aware that Todd M. Whitt was inattentive while driving due to his operation of a handheld cell phone, nor she was aware that he had used a cell phone at any time while operating a motor vehicle. As Todd M. Whitt had no record or reputation as an unsafe driver, the negligent entrustment case cannot be sustained. Plaintiffs counter by saying that the record contains material facts in dispute which should be resolved by a jury. They point out that Kathy Whitt was aware that Todd M. Whitt was a young and inexperienced driver, who seldom operated his mother s 1995 Plymouth vehicle and preferred to drive the family s other vehicles. On that afternoon, Kathy Whitt had authorized Todd M. Whitt to operate the vehicle and had also provided her cell phone to him. She also had given him permission to use the cell phone when the vehicle was stopped, including when he was stopped at an intersection to observe a red light. Based on these circumstances, Plaintiffs contend that Kathy Whitt knew or should have known that Todd M. Whitt would operate the vehicle in an unsafe manner. In Jones v. Southeastern Pennsylvania Transportation Authority, 772 A.2d 435, 438 (Pa. 2001), the Supreme Court restated the standard for granting summary judgment: Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association, Inc., 547 Pa. 224, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury. Pa.R.Civ.P (2). We review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992). The Pennsylvania Superior Court provided instruction on negligent entrustment in the case of Ferry v. Fisher, 709 A.2d 399, 403 (Pa.Super. 1998), setting forth as follows: Section 308 of The Restatement (Second) of Torts defines the tort of negligent entrustment, which has been adopted in this Commonwealth, as follows: 308. Permitting Improper Persons to Use Things or Engage in Activities

4 65 It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. Restatement (Second) of Torts 308 (emphasis added); Christiansen v. Silfies, 446 Pa.Super. 464, 667 A.2d 396 (1995). Under a theory of negligent entrustment, liability is imposed upon a defendant because of his or her own actions in relation to the instrumentality or activity under his or her control. Silfies, 446 Pa.Super. at 472, 667 A.2d at 400. The entrustor s liability is not dependent on, derivative of, or imputed from the entrustee s actual liability for damages. Id.; see also Restatement (Second) of Torts 308. Accordingly, for Plaintiffs to establish the third element of negligent entrustment, they would have to prove knowledge, in essence, that Kathy Whitt should not have permitted her son to drive her vehicle because she knew or should have known that he was incompetent or unfit to drive. See Wertz v. Kephart, 542 A.2d 1019, 1024 (Pa.Super. 1988). However, accepting the well pleaded facts set forth in Plaintiffs Complaint as true, this Court is unable to find anything in the record which would support this element. Without the benefit of hindsight, there is simply no history, or other pertinent information, to impute knowledge to Kathy Whitt that allowing her son to operate her motor vehicle would be an irresponsible decision. While it is true that Todd M. Whitt was young and inexperienced, and may have been uncomfortable operating this particular family vehicle, that alone does not establish his unfitness. Further, the mere possession by a driver of a cell phone is not a basis for presuming in advance that the cell phone would be used concurrently with the operation of the motor vehicle. Likewise, without some history as support, it cannot be presumed that Todd M. Whitt would violate traffic laws or disobey instructions from his mother to refrain from using the cell phone except when the vehicle is stopped. A vehicle owner giving permission for another to drive his vehicle is entitled to presume that that driver will obey the law. Id, at p. 1024, citing Commonwealth v. Tharp, 541 A.2d 14, 18 (Pa.Super. 1988). 3 For the reasons set forth, the Motion for Summary Judgment is granted. We enter the following Order: 3 Thorp involved the question of whether 1575(a) of the Motor Vehicle Code, 75 Pa. 1575, setting forth that no person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title, could be violated if the owner did not have knowledge that his motor vehicle would be driven illegally.

5 66 ORDER AND NOW, this 20th day of October 2011, upon consideration of the Motion of Defendant, Kathy Whitt, for Summary Judgment, response thereto, briefs filed by the parties, review of the record and after argument held, the Motion is GRANTED. Judgment is entered in favor of Defendant, Kathy Whitt, and against Plaintiffs. BY THE COURT: /S/ Scott E. Lash, J.