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Mills v. Continental Parking Corp.

Supreme Court of Nevada
Oct 29, 1970
86 Nev. 724 (Nev. 1970)

Summary

holding parking lot attendant not liable for surrendering car to owner who was intoxicated

Summary of this case from Congini v. Portersville Valve Co.

Opinion

No. 6149

October 29, 1970

Appeal from judgment of dismissal of the Second Judicial District Court, Washoe County; Emile J. Gezelin, Judge.

John Sanchez, of Reno, for Appellants.

Goldwater, Taber, Hill and Mortimer, and Julien G. Sourwine, of Reno, for Respondent.


OPINION


This is an appeal from a Rule 12(b) (5) dismissal for failure of the plaintiffs to state a claim upon which relief can be granted. The legal issue is whether the heirs of a pedestrian who was killed by a car driven by a drunken driver have a claim for relief for wrongful death against the operator of a parking lot who surrendered the car to the inebriate with knowledge of his drunken condition. We agree with the district court that a claim for relief was not stated and affirm the dismissal.

The complaint alleges that Donald Lewis bailed his automobile to the Continental Parking Corporation to be parked on its parking lot; that when Lewis appeared to reclaim possession of the car he was drunk and the agents of Continental Parking knew it; that Continental Parking was negligent in entrusting the car to one who was incompetent to drive it.

1. In the situation where the parking lot attendant collects a fee, has possession of the keys, assumes control of the car and issues a ticket to identify the car for redelivery, the legal relationship of bailor-bailee is created. Taylor v. Philadelphia Parking Authority, 156 A.2d 525 (Pa. 1959). The negligent entrustment theory of tort liability does not apply to the normal bailor-bailee relationship since the bailee is duty bound to surrender control of the car to the bailor upon demand or suffer a possible penalty for conversion. Indeed, if the bailee refuses to return the car at the end of the bailment it is presumed that the car was converted by him. Donlan v. Clark, 23 Nev. 203, 45 P. 1 (1896); Manhattan Fire Marine Ins. Co. v. Grand Central Garage, 54 Nev. 147, 9 P.2d 682 (1932), quoting the Donlan case with approval. Here, the bailment ended when Lewis appeared at the parking lot to reclaim possession of his car and paid for the parking services. At that moment the bailee lost his right to control the car. Although the negligent entrustment theory may apply where one who has the right to control the car permits another to use it in circumstances where he knows or should know that such use may create an unreasonable risk of harm to others, it does not apply when the right to control is absent.

Cases collected at 7 A.L.R.3d 927.

Cf. Ex parte Liotard, 47 Nev. 169, 217 P. 960 (1923); cases collected at 19 A.L.R.3d 1175; Rest. Torts 2d § 308.

In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), we ruled that the heirs of pedestrians who were killed by a car driven by a drunken driver did not have a claim for relief against a tavern keeper who unlawfully sold liquor to the offending driver. The policy considerations underlying that decision apply to the case at hand. The imposition of civil liability in the circumstances here alleged would lead to unforeseeable consequences limited only by the scope of one's imagination. We decline to venture into that wonderland.

2. Although plaintiffs-appellants assert that the district court erred in refusing leave to amend their complaint, the record fails to show that leave of court to amend was requested. NRCP 15(a). This claim of error must, therefore, fail.

Affirmed.

COLLINS, C.J., ZENOFF, BATJER, and MOWBRAY, JJ., concur.


Summaries of

Mills v. Continental Parking Corp.

Supreme Court of Nevada
Oct 29, 1970
86 Nev. 724 (Nev. 1970)

holding parking lot attendant not liable for surrendering car to owner who was intoxicated

Summary of this case from Congini v. Portersville Valve Co.

ruling that parking lot operator who returned keys to inebriated driver was not liable for subsequent injuries to third party

Summary of this case from Snyder v. Viani

applying the policies underlying the rejection of dram-shop liability to conclude that imposing civil liability on a parking garage attendant for failing to prevent an intoxicated driver from leaving the premises would lead to unimaginable consequences

Summary of this case from Rodriguez v. the Primadonna, 125 Nev. Adv. Op. No. 45, 49409 (2009)

In Mills, the Nevada Supreme Court affirmed dismissal of the plaintiff's claim for wrongful death brought by the heirs of a pedestrian who was killed by a car driven by a drunk driver against the operator of a parking lot who surrendered the vehicle with knowledge of the driver's inebriation.

Summary of this case from Moranko v. Downs Racing LP

In Mills, the Nevada Supreme Court affirmed dismissal of the plaintiff's claim for wrongful death brought by the heirs of a pedestrian who was killed by a car driven by a drunk driver against the operator of a parking lot who surrendered the vehicle with knowledge of the driver's inebriation.

Summary of this case from Moranko v. Downs Racing LP

In Mills, the Nevada Supreme Court affirmed dismissal of the plaintiff's claim for wrongful death brought by the heirs of a pedestrian who was killed by a car driven by a drunk driver against the operator of a parking lot who surrendered the vehicle with knowledge of the driver's inebriation.

Summary of this case from Moranko v. Downs Racing LP

parking lot operator surrendered car to intoxicated car owner

Summary of this case from Pierce v. Bishop

parking lot operator not negligent for negligent entrustment in turning car over to intoxicated owner

Summary of this case from Payberg v. Harris

In Mills, the issue was whether a negligent entrustment action will lie against the operator of a parking lot who surrendered an automobile to its owner, knowing that the owner was drunk.

Summary of this case from Broadwater v. Dorsey

In Mills v. Continental Parking Corporation, supra, 475 P.2d 673, the Supreme Court of Nevada, applying Nevada common law similar to current California law, held the heirs of a pedestrian killed by a drunk driver had no wrongful death claim against the operator of the parking lot which surrendered the car to its inebriated owner.

Summary of this case from Knighten v. Sam's Parking Valet
Case details for

Mills v. Continental Parking Corp.

Case Details

Full title:VIRGINIA MILLS, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR SHEILA KENDALL…

Court:Supreme Court of Nevada

Date published: Oct 29, 1970

Citations

86 Nev. 724 (Nev. 1970)
475 P.2d 673

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