Opinion
C.A. No. 02C-06-243-CLS.
Submitted: July 15, 2005.
Decided: September 19, 2005.
Gary S. Nitsche, Esquire, Weik, Nitsche, Dougherty Componovo, Wilmington, Delaware, Attorney for Plaintiff.
Daniel A. Griffith, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Defendant.
Defendant Dart's Motion for Summary Judgment. GRANTED
MEMORANDUM OPINION
Facts
On June 29, 2001, Defendant Marvin Jackson ("Jackson"), an employee of Scrub-A-Dub-Dub, was driving a DART vehicle when he collided with Plaintiff Thomas Eberl ("Eberl"). Scrub-A-Dub-Dub was a company hired by DART to detail its cars. As a result of the collision, Eberl suffered personal injuries. Based on an oral contract between DART and Scrub-A-Dub-Dub, DART gave Scrub-A-Dub-Dub employees permission to drive the DART cars in order to detail them.
After the accident, Jackson was charged with, among other things, driving after judgment prohibited. A review of Jackson's driving record revealed that he had been without a valid driver's license since 1992. In addition, Jackson had been charged with speeding, lack of license, inattentive driving, operating an unregistered motor vehicle, driving during suspension, driving under the influence, failure to have insurance, using a motor vehicle to deliver drugs in the past. Jackson is in fact a habitual offender.
Richard Walters ("Walters"), DART's assistant district maintenance manager of the North district, testified at his deposition that he had no knowledge of Jackson's poor driving history. Walters stated that of the twenty-nine vehicles scheduled for detail, approximately fifteen to twenty had been completed at the time of the accident. The performance by Scrub-A-Dub-Dub employees under the DART contract had been without incident before the accident with Eberl. Despite the accident, DART permitted Scrub-A-Dub-Dub to finish the work on the remaining nine cars.
For purposes of this Motion, Eberl contends that DART is liable under a theory of negligent entrustment because they gave Jackson permission to use the car when they should have known that he was a habitual offender for driving infractions. Eberl asserts that Jackson is an agent of DART. DART, in response, contends that they had no reason to know of his driving record nor were they obligated to investigate. DART asserts that Jackson is an independent contractor and they are not responsible for his negligence.
Standard of Review
Summary judgment may only be granted when no genuine issues of material fact exist. The moving party bears the burden of establishing the non-existence of genuine issues of material fact. If the burden is met, the burden shifts to the non-moving party to establish the existence of genuine issues of material fact. "Where the moving party produces an affidavit or other evidence sufficient under Super Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial." If genuine issues of material fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. The court must view the facts in the light most favorable to the non-moving party. Issues of negligence are generally not susceptible to summary judgment.
Moore v. Sizemore, 405 A.2d 679, 680 (Del.Supr. 1979).
Id.
Id. at 681.
Super. Ct. Civ. R. 56(3); Ramsey v. State Farm Mutual Automobile Insurance Co., 2004 WL 2240164 *1 (Del.Super.) (citing Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986)).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del.Supr. 1962).
Lupo v. Medical Center of Delaware, 1996 LEXIS 46 *5 (Del.Super.).
Frelick v. Homeopathic Hosp. Ass'n of Del., 150 A.2d 17 (Del.Super. 1959).
Discussion
DART contends that there are no material issues of fact surrounding the negligent entrustment claim. According to DART, they did not know that Jackson was a habitual offender for driving offenses, thus, the elements of negligent entrustment have not been satisfied. "The theory of negligent entrustment holds the owner liable when he or she `entrust[s] his motor vehicle to one who is so reckless or incompetent that in his hands the motor vehicle [becomes] a dangerous instrumentality.'" To establish a claim of negligent entrustment in Delaware, Plaintiff must prove the following:1. That a vehicle was entrusted by the owner;
2. That with a reckless or incompetent driver, that such in the driver's control, the automobile becomes a dangerous instrumentality;
3. That the owner knows or has reason to know that the driver is reckless or incompetent; and,
4. said driver causes damages to person or property.
Fisher v. Novak, Del. Super, C.A. No. 88C-MY21, Lee, P.J. (June 6, 1990).
"An `unusually high test of foreseeability' must be met before an owner will be found liable for negligent entrustment."
Shonts v. McDowell, 2003 WL 22853659 *2 (Del.Super. 2003) (internal citations omitted).
This Court holds that DART did not have sufficient knowledge of Jackson's poor driving history to satisfy a negligent entrustment claim. DART never performed an investigation into Jackson's driving record prior to the accident. Moreover, Jackson had driven the DART cars without incident for two weeks prior to the accident. The Court finds that it would be logical for DART to assume that if they contracted with a car detailing company, the employees of that company would hold valid licenses.
Furthermore, this Court finds that DART was under no obligation to investigate into Scrub-A-Dub-Dub's employee driving records because Scrub-A-Dub-Dub is an independent contractor, not an agent of DART. DART is not liable for the negligent actions of Scrub-A-Dub-Dub because "the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." As such, this Court finds as a matter of law that DART did not negligently entrust the vehicle to Jackson which caused injuries to Eberl.
RESTATEMENT (SECOND) OF AGENCY § 2 (2005). The Restatement distinguishes between agents and independent contractors as follows:
(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (emphasis added).
(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. (emphasis added).
RESTATEMENT (SECOND) OF TORTS § 409 (2005).