Judge Kimbler Decision on Negligent Entrustment

This is a Judge Kimbler decision granting summary judgment to a parent of a teenager who was sued under a theory of negligent entrustment. It is subject to an appeal.

This case is now before the Court on Defendant’s Motion for Summary Judgment as to Plaintiff’s Negligent Entrustment Claim filed on May 10, 2007. Plaintiff filed a Brief in Opposition on May 31, 2007 and Defendant filed a Reply Brief in Support of their Motion for Summary Judgment on June 5, 2007. These were all considered in the Court’s ruling. For the reasons that follow, the Court finds that said motion is well taken.

Statement of Facts

On the snowy day of November 23, 2005, Defendant Daniel Fedj’s vehicle struck Plaintiff Joseph Pompignano’s stopped vehicle at an intersection in Brunswick. Plaintiff suffered alleged injuries from this incident.
Defendant Daniel Fedj was driving a vehicle owned by his grandmother Defendant Linda Fedj. He was given permission to do so. At the time, Daniel Fedj was 17 years old and had a valid driver’s license.

Discussion

Summary Judgment is appropriate in the Ohio Rules of Civil Procedure 56 (C) when the evidence presented in accordance with the rule shows “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Plaintiff alleges that the act of Defendant Linda Fedj giving permission to Defendant Daniel Fedj to drive her car comprised the act of negligent entrustment.
To establish negligent entrustment in an action involving a motor vehicle, Plaintiff must prove that the owner of the vehicle knew at the time of the entrustment that the entrustee was incompetent or unqualified to operate the vehicle. Gulla v. Strause (1950), 154 Ohio St. 193

Plaintiff argues that Defendant Linda Fedj should have taken into account the weather and age of Defendant Daniel Fedj before giving him permission to drive on November 23, 2005. Prior to this incident, Daniel had driven her car on numerous occasions and was regarded as a competent and safe driver.

Plaintiff uses case law in support of their argument that is difficult to apply to this case. Each case cited involves something other than a licensed driver of an automobile. There is nothing provided by Plaintiff that shows that Defendant Linda Fedj knew that Defendant Daniel Fedj was an incompetent or unqualified driver. An excerpt from a deposition shows that Linda Fedj may or may not have known about the weather conditions on the day of the incident. However; this does not show anything about what Linda Fedj knew about whether Daniel Fedj was an incompetent or unqualified driver at the time of the incident.

There is also nothing that shows that Defendant Daniel Fedj was incompetent or inexperienced at the time of the incident. Plaintiff points to his age of 17 and the weather on that day. The undisputed facts that he was a licensed driver without any history of prior incidents means that his age alone does not rise to the level of an incompetent or inexperienced driver. The circumstance of inclement weather, by itself, is not sufficient to show that a driver is incompetent or inexperienced. Mihalega v. Mitchell (1996, 10th Circuit, Not Reported in N.E.2d), 1996 WL 70990. Even when taken together, his age and the weather do not turn into a set of circumstances that rise to the level of an incompetent driver.

Pursuant to Ohio Civil Rule 56 (C) there are no genuine issues with regard to any material fact and reasonable minds can come to but one conclusion. Defendant’s Motion for Summary Judgment as to Plaintiff’s Negligent Entrustment claim is granted.

SO ORDERED.

Judge Kimbler Opinion on Use of Deposition on Motion for Summary Judgment

Below is the text of an opinion that concerns whether a trial court can consider a deposition filed after the day set for the hearing on the motion for summary judgment but prior to the trial court issuing its decision.
[One of the defendants] filed a motion for summary judgment pursuant to Civ. R. 56 on March 16, 2007. The motion was set for a non-oral hearing on April 19, 2007. The motion cites to the Plaintiff’s deposition in support of the motion. Unfortunately the Plaintiff’s deposition was not filed until May 23, 2007.

Pursuant to Civ. R. 31 (A) a deposition that is going to be as evidence in a trial or hearing must be filed one day in advance of such trial or hearing. This rule can be avoided if the trial court finds that there is good cause for the failure to file the deposition one day in advance of the hearing.

In this case, while the [defendant] did seek an order allowing the deposition to be filed under seal, it did not seek an order under Civ. R. 31 (A) allowing the deposition to be filed after the hearing date set on its motion for summary judgment.

Because of this Court’s trial schedule, however, this Court was not able to consider the [defendant's] motion for summary judgment until after the deposition was filed, but the motion was not set for a rehearing, that is, the motion has been pending before this Court since April 19, 2007. Therefore, the issue becomes whether a trial court can consider a deposition for purposes of a ruling on a motion for summary judgment that is filed after the hearing date but before the trial court issues its decision on the motion.

This Court believes that the language of Civ.R. 31 (A) prevents such a use of the Plaintiff’s deposition. This Court believes that in ruling on the motion for summary judgment filed by the [defendant], it has to consider all the evidence filed by the parties prior to April 19, 2007 and not after that date.

Examining the evidential material submitted by the [defendant] but excluding the Plaintiff’s deposition, this Court finds that the evidence submitted does not support the granting of a motion for summary judgment and the motion is therefore denied