Opinion
C.A. No. 01C-12-013.
October 2, 2003.
Stephen B. Potter, Esquire Potter, Carmine, Leonard Aaronson, P.A.
Craig A. Karsnitz, Esquire Young Conaway Stargatt Taylor, LLP,
Daniel A. Griffith, Esquire.
Dear Counsel:
This is my decision on the Motion to Certify Questions of Law filed by Plaintiff Myeare K. Shonts ("Shonts") and the Cross-Motion to Certify Questions of Law filed by Defendants Kenneth L. McDowell ("McDowell-Senior") and Kenneth A. McDowell ("McDowell-Junior"). The motions were filed after I issued an Order on August 5, 2003, denying the parties' cross-motions for summary judgment on the issue of negligent entrustment of a motor vehicle and granting McDowell-Senior's motion for summary judgment on the issue of reckless entrustment of a motor vehicle. I have denied both motions for the reasons set forth herein.
BACKGROUND
Shonts and McDowell-Junior were involved in a motor vehicle collision (the "Accident") on February 26, 2001. McDowell-Junior, who was operating a Ford Explorer (the "Explorer") eastbound on Sussex Route 18, failed to notice that Shonts had stopped her vehicle in the roadway to prepare for a turn. McDowell-Junior rear-ended Shonts's vehicle after he took his eyes off of the road to look at the Explorer's clock. As a result of the Accident, Shonts was seriously injured and McDowell-Junior was charged with Inattentive Driving. The Explorer was owned by McDowell-Senior, McDowell-Junior's father.
At the time of the Accident, McDowell-Junior, an 18-year old high school student, was going to a classmate's home to complete a school project. Prior to the Accident, McDowell-Junior had received traffic citations for speeding and Operating a Motor Vehicle Under the Age of 21 After Consuming an Alcoholic Beverage (the "Zero Tolerance DUI"), a violation of 21 Del. C. § 4177L. Although the later offense demands a 60-day license suspension, McDowell-Junior had a valid license at the time of the Accident and had McDowell-Senior's permission to drive the Explorer.
Junior's license was not suspended because he requested a hearing.
Shonts seeks recovery from McDowell-Junior on the theory that his negligent and/or reckless driving caused the Accident. She seeks recovery from McDowell-Senior on the theory that he negligently and/or recklessly entrusted the Explorer to McDowell-Junior. Shonts believes McDowell-Senior should have recognized McDowell-Junior's incompetence as a driver and prohibited him from driving the Explorer. McDowell-Senior's failure to take this remedial action, according to Shonts, allegedly resulted in the negligent and/or reckless entrustment of the Explorer.
CERTIFICATION OF QUESTIONS OF LAW
Shonts has requested me to certify the following questions to the Delaware Supreme Court:
1. Whether a person with a pending DUI in violation of 21 Del. C. § 4177L whose driver's license has been seized pursuant to 21 Del. C. § 2742(c)(2) is an unsafe driver as a matter of law unless and/or until the person completes a course of instruction or rehabilitation program pursuant to 21 Del. C. § 2742(h)?
2. Whether the owner of a motor vehicle is liable as a matter of law in a civil case for entrusting a motor vehicle to a person who he knows has had his license revoked pursuant to 21 Del. C. § 2742(c)(2), subject to a hearing pursuant to 21 Del. C. § 2742(h) and who has not attended any rehabilitation or course of instruction?
3. Whether a cause of action for "reckless entrustment" exists in this jurisdiction and, if so, the elements that must be proven by a preponderance of the evidence by Plaintiff at trial?
McDowell-Senior and Junior have requested me to certify the following questions to the Delaware Supreme Court:
1. Whether a vehicle owner may be liable for negligent entrustment where the operator had never been involved in a prior motor vehicle accident and had a valid driver's license at the time of the accident?
2. Whether it is reasonably foreseeable that a driver with no history of motor vehicle accidents and a valid driver's license, albeit one prior moving violation and one pending moving violation, would be involved in an accident causing personal injuries such that the vehicle's owner may be liable for negligently entrusting the vehicle to the operator?
The certification of questions of law by the Superior Court to the Supreme Court is governed by Superior Court Civil Rule 75 and Supreme Court Rule 41. The parties, while they are opposed to each other's proposed questions, argue that their respective questions are questions of first instance in this State, and that the resolution of them may well save the parties some, or all, of the time and expense of going to trial. Shonts also argues that her questions one and two require the construction of a statute as well. I agree with the parties that their five questions fall largely within the scope of Supreme Court Rule 41(b) and that the resolution of them may well, but not necessarily, make a trial unnecessary. However, I have decided to deny certification of all five of the questions.
The contested liability issues in this case are whether or not McDowell-Senior negligently and/or recklessly entrusted the Explorer to McDowell-Junior. The five proposed questions all focus on these issues. The parties filed cross-motions for summary judgment on these issues. I issued an order on August 5, 2003, denying both motions on the issue of negligent entrustment and granting McDowell-Senior's motion on the issue of reckless entrustment. I denied both motions on the issue of negligent entrustment because, given the unique facts of this case, I could not rule, as a matter of law, that either Shonts or McDowell-Senior should prevail. Instead, I ruled that the issue would have to be decided by a jury, as are most issues of negligence. I granted McDowell-Senior's motion on the issue of reckless entrustment because McDowell-Senior's actions could not, again under the unique facts of this case, be characterized as "a conscious indifference to the rights of others," which is the standard that Shonts would have to meet in order to prevail. The decisions that I made on these issues are the law of the case and neither party can seek a review of them by the Supreme Court by submitting questions of law pursuant to Supreme Court Rule 41. The parties could have sought Supreme Court review of my decisions by filing an interlocutory appeal pursuant to Superior Court Civil Rule 74 and Supreme Court Rule 42. Shonts did file a Notice of Appeal from Interlocutory Order with the Supreme Court on September 4, 2003. However, she did not file an application for certification of an interlocutory appeal with the Superior Court, as required by Supreme Court Rule 42(c). Given the somewhat confused procedural posture of this case, I asked the parties to clarify their understanding of what was pending before me for a decision (See Attachment One). Counsel for Shonts sent me a letter stating she is requesting certification of her questions (See Attachment Two). I believe that the certification of the parties' proposed questions of law is the only matter pending before me and it is the only matter that I have decided. The interlocutory appeal filed by Shonts is, of course, still pending in the Supreme Court and it remains for the Supreme Court to decide if it was filed in accordance with Supreme Court Rule 42.
Frelick v. Homeopathic Hosp. Ass'n of Del., 150 A.2d 17 (Del.Super. 1959).
Jardel Co. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
Rales v. Blasband, 634 A.2d 927, 931 (Del. 1993).
Johnson v. Paul's Plastering, 1999 WL 801435 (Del. 1999).
CONCLUSION
The two motions are denied for the reasons set forth herein.
IT IS SO ORDERED.