Opinion
J-A01030-16 No. 487 EDA 2015
04-25-2016
SHEILA FERGUSON Appellant v. DERRICK MORTON AND PHILADELPHIA CYCLE CENTER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered January 27, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2010, No. 3152 BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E. MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Sheila Ferguson appeals the judgment entered on January 27, 2015, in the Philadelphia County Court of Common Pleas. In August of 2012, a jury entered a verdict in favor of Ferguson in her personal injury action against both Derrick Morton and Philadelphia Cycle Center ("PCC"), in the amount of $575,000. On January 15, 2015, the trial court granted PCC's motion for judgment notwithstanding the verdict ("JNOV"). Accordingly, judgment was entered on January 27, 2015, against Morton only. On appeal, Ferguson argues the trial court abused its discretion and erred as a matter of law when it concluded Ferguson presented insufficient evidence to support a claim of negligent entrustment. For the reasons that follow, we affirm.
As will be discussed infra, a default judgment was entered against Morton when he failed to file an answer to Ferguson's complaint. Therefore, Morton is not a party to this appeal.
The facts underlying Ferguson's claim are as follows. On June 5, 2010, Derrick Morton purchased a red Suzuki motorcycle from PCC. Prior to completing the transaction, PCC's sales manager made a copy of Morton's driver's license and insurance card. See N.T., 7/31/2012, at 38, 48, 68-69. Although Morton had a valid license to drive an automobile, he did not have the proper Class M certification to operate a motorcycle.
See 75 Pa.C.S. § 1504(d)(4) ("A Class M license shall be issued to those persons who have demonstrated their qualifications to operate a motorcycle.").
At approximately 10:00 p.m. that evening, Ferguson was struck by Morton's Suzuki motorcycle as she crossed the street in front of her house. N.T., 7/30/2011, 74-75. Her daughter, Isis, who witnessed the accident, testified that, after the motorcycle struck her mother, it hit two cars. N.T., 7/30/2011, at 161. The two men, who were on the cycle, got off and then fled the scene. Id. Neither Ferguson nor Isis were able identify the driver or passenger on the motorcycle.
Philadelphia Police Officer Robert Bowdren responded to the accident scene. He testified that at some point after he arrived to investigate, Morton appeared and represented himself as the owner of the cycle. Id. at 205. However, the officer acknowledged that he never "made a determination who was on that motorcycle at the time of the accident." Id. at 215. Ferguson suffered serious injuries as a result of the accident.
Ferguson filed a negligence action against Morton and PCC in September of 2010, followed by an amended complaint on June 16, 2011. The amended complaint asserted three causes of action: (1) a claim against Morton for his negligent operation the motorcycle; (2) a claim against PCC for negligently entrusting the motorcycle to Morton, and (3) a claim against PCC for breach of its statutory duty to verify Morton's insurance. On July 19, 2012, two weeks prior to trial, the court entered a default judgment against Morton based upon his failure to file an answer to the complaint. Morton was, therefore, precluded from presenting any evidence at trial.
See 75 Pa.C.S. § 1318 (requiring persons authorized to issue temporary vehicle registrations "to verify financial responsibility prior to issuance.").
Morton appeared at trial pro se, and testified briefly during PCC's case, explaining that he did not drive the motorcycle off the lot after the purchase, but rather, transported it in the back of a pickup truck. See N.T., 7/31/2012, at 293-295.
The case proceeded to a jury trial on July 30, 2012. At the close of Ferguson's case-in-chief, the trial court granted a nonsuit with respect to Ferguson's assertion that PCC failed to verify Morton's insurance. Before sending the case to the jury for deliberations, the court instructed them on the effect of the default judgment entered against Morton. Specifically, the court stated:
There's one other thing that I think you need to know in order to properly evaluate the whole situation. The case starts with a Complaint. Plaintiff files this is what our case is about and each defendant is required under the rules to file what's known as an Answer and it's just what it sounds like, why shouldn't you lose, what's your answer to the allegations of the Complaint. And if a party doesn't file an Answer, then a default judgment can be taken and that just means no Answer has been filed, give us a judgment.N.T., 8/1/2012, at 60-61. On August 2, 2012, the jury returned a verdict in the amount of $575,000.00, in favor of Ferguson, finding Morton and PCC each 50% liable for Ferguson's injuries.
And that happened in this case. Mr. Morton did not file an Answer and a default judgment has been taken. So what that means is when you get the verdict sheet, you're going to be asked questions like negligence, factual cause, which is causation, injuries, the amount of damages, maybe one or two other things. Well, when you get that, you're going to see that negligence for Mr. Morton has been checked yes. There's a place for you to check yes or no for your answer. And when it comes to factual cause for Mr. Morton, that's also going to be checked yes.
All that means is that because of this default judgment which has been taken, those questions do not have to be answered by you.
PCC filed timely post-trial motions requesting JNOV or a new trial. Ferguson filed a cross-motion for post-trial relief to preserve issues in the event PCC's motion was granted. Following a hearing, the trial court entered an order on January 2, 2013, granting PCC's request for a new trial. In the opinion accompanying the order, the court explained it found counsel for Ferguson's closing argument, which repeatedly requested damages against the "corporate defendant," was unfairly prejudicial, and, as a result, "the verdict as rendered wrongly included an amount for punitive damages." Opinion and Order, 2/1/2013, at 4.
Ferguson appealed the trial court's order. In a published opinion, a panel of this Court reversed, concluding the trial court abused its discretion when it found counsel's remarks during closing argument were so prejudicial as to require a new trial. See Ferguson v. Morton , 84 A.3d 715, 726 (Pa. Super. 2013) (stating "the trial court's curative instructions, admonitions of [counsel] in the presence of the jury, and the court's jury charge were more than ample to ameliorate any risk of undue harm to PCC's interests, and that the jury's verdict signaled that no such unfairness actually resulted from [counsel's] regrettable behavior."). The Pennsylvania Supreme Court subsequently denied PCC's petition for allowance of appeal. See Ferguson v. Morton , 97 A.3d 745 (Pa. 2014).
Upon remand to the trial court, Ferguson filed a motion seeking to confirm the verdict, and for an assessment of delay damages and post-judgment interest. PCC also filed a motion requesting a ruling on its undecided post-trial motions, including its request for JNOV. On October 21, 2014, the trial court entered an order denying Ferguson's motion to confirm the verdict, and thereafter, conducted oral argument on PCC's undecided post-trial motions. On January 15, 2015, the trial court entered an order granting PCC's request for JNOV, finding the evidence presented by Ferguson was insufficient to support a claim for negligent entrustment. Judgment was entered against Morton in the amount of $575,000.00, and in favor of PCC. This timely appeal followed.
The trial court did not direct Ferguson to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), but did issue an opinion on May 27, 2015.
Our standard of review of a trial court's order granting JNOV is well established. "We will reverse a trial court's grant or denial of a JNOV only when we find an abuse of discretion or an error of law." Reott v. Asia Trend , Inc., 55 A.3d 1088, 1093 (Pa. 2012).
When reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there is sufficient competent evidence to sustain the verdict. We must view the evidence in the light most favorable to the verdict winner and give the verdict winner the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. We apply this standard in all cases challenging the grant of a motion for J.N.O.V.Dubose v. Quinlan , 125 A.3d 1231, 1237-1238 (Pa. Super. 2015), quoting Birth Center v . St. Paul Companies , Inc., 727 A.2d 1144, 1154-1155 (Pa. Super. 1999) (internal citations omitted), aff'd, 787 A.2d 376 (Pa. 2001).
Pennsylvania law makes clear that a judgment notwithstanding the verdict is proper only in clear cases where the facts are such that no two reasonable minds could disagree that the verdict was improper. Questions of credibility and conflicts in evidence are for the fact-finder to resolve. This Court will not substitute its judgment based upon a cold record for that of the fact-finder where issues of credibility and weight are concerned. Id.
On appeal, Ferguson contends she presented sufficient evidence to the jury as to her cause of action against PCC for negligent entrustment. The tort of negligent entrustment is set forth in Section 308 of the Restatement (Second) of Torts:
§ 308 Permitting Improper Persons to Use Things or Engage in ActivitiesRestatement (Second) of Torts § 308 (1965).
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.
In Ferry v. Fisher , 709 A.2d 399 (Pa. Super. 1998), this Court explained:
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.Id. at 403 (citations omitted). "However, our cases do require that the entrustee be causally negligent before the entrustor may be held liable through negligent entrustment." Christiansen v. Silfies , 667 A.2d 396, 400 (Pa. Super. 1995), appeal denied, 686 A.2d 1307 (Pa. 1996).
In granting JNOV, the trial court focused on Ferguson's failure to prove "PCC knew or should have known that [] Morton used the motorcycle or was likely to allow someone else incapable of properly driving the motorcycle to use it[,]" and, in particular, Ferguson's "failure to identify the driver at the time of the accident." Trial Court Opinion, 5/27/2015, at 4-5. The court explained: "It is not possible to negligently entrust a vehicle to an unknown person." Id. at 5. Moreover, the trial court emphasized the default judgment taken against Morton, which established his liability, "cannot constitute an admission by PCC that [Morton] was riding the motorcycle at the time of the accident." Id. Indeed, the court noted the facts of the complaint admitted by Morton by virtue of the default judgment were never read to the jury. The trial court further opined:
[Ferguson] had the burden to prove that [] Morton drove the motorcycle at the time of the accident, and that his negligent driving caused [Ferguson's] injuries, only then could PCC's negligence in selling him the motorcycle be factually related to the accident.Id. at 5-6 (footnote omitted).
There was no evidence that [] PCC's alleged negligent entrustment of the motorcycle to [] Morton was causally related to [Ferguson's] injuries. [Ferguson] could not prove that [] PCC's negligence in entrusting the motorcycle to [] Morton caused any injury because there was no evidence at trial that [] Morton was the driver at the time of the accident.
Ferguson contends, however, the trial court's ruling invaded the province of the jury. First, she explains that, by virtue of the default judgment, Morton admitted he was the operator of the motorcycle at the time of the accident. Although Ferguson acknowledges a default judgment entered against one party is not binding on another party, she asserts: "[b]ecause [] Morton's admissions - by virtue of the default judgment - were the equivalent of a statement by a party, the jury was free to consider them in its deliberations and give them the appropriate weight it deemed appropriate." Ferguson's Brief at 26. She further states the trial court's ruling "in essence required [her] to identify the motorcycle operator by direct testimony, which was not possible." Id. at 23.
In addition, Ferguson argues she presented sufficient evidence for the jury to conclude PCC negligently entrusted the motorcycle to Morton. First, she contends there was ample evidence that PCC still retained ownership of the motorcycle when it permitted Morton, an unlicensed user, to ride it off the property. Id. at 28-29. Moreover, Ferguson asserts the jury could have disbelieved Morton's testimony that he transported the motorcycle in a pickup truck after he completed the transaction, and found PCC's "casual attitude regarding [] Morton's ability to safely and legally ride the motorcycle he purchased was a factual cause of [Ferguson's] injuries." Id. at 30. Lastly, she claims there was sufficient evidence for the jury to determine PCC "should have known that a person who did not possess a motorcycle license, here, [] Morton, would likely operate the motorcycle in an unsafe and/or unskilled manner[.]" Id. at 32. Accordingly, she states the trial court abused its discretion when it granted JNOV in favor of PCC.
Preliminarily, we note Ferguson correctly recognizes that Morton's default judgment is not binding on PCC. In Antoniotti v. Eckels , 840 A.2d 1013 (Pa. Super. 2003), a panel of this Court considered whether the admissions of an additional defendant, by virtue of a default judgment, were binding against the plaintiffs. The plaintiffs were passengers in the additional defendant's car when it collided with a car driven by the defendant. After the plaintiffs sued the defendant, the defendant joined the additional defendant, asserting that the collision was caused by her negligence. Id. at 1015. When the additional defendant did not file an answer or appear for trial, the trial court allowed the jury to consider the admissions in the joinder complaint as fact. The jury then returned a verdict solely against the additional defendant. Id.
In concluding the plaintiffs were entitled to a new trial, a panel of this Court relied upon both the Pennsylvania Rules of Civil Procedure and prior case law. The panel held that admissions made by virtue of a default judgment "become conclusive against the party who is responsible for them, and ... against anyone sufficiently identified in legal interest with that party." Id. at 1017; see also Pa.R.C.P. 2255(c). Because the plaintiffs did not "share identity of legal interests" with the additional defendant, the panel concluded "the trial court erred when it held that the [a]dditional [d]efendant's admissions [were] conclusive as against all parties." Id.
The same is true in the present case. Morton and PCC do not "share identity of legal interests." Id. Accordingly, Morton's admissions by virtue of his failure to answer the complaint were not binding against PCC.
Nevertheless, Ferguson argues the admissions, although not binding, were "the equivalent of a statement by a party," which the jury was entitled to weigh and consider in its deliberations. Ferguson's Brief at 26. In her brief, she lists several factual averments from the amended complaint, which she contends Morton admitted. See id. at 25. However, what Ferguson fails to acknowledge is that these factual averments were never read to the jury. The jury was instructed only, as cited above, that (1) Morton failed to file an answer to the complaint, (2) a default judgment was entered against him, and (3) consequently, the jury did not have to determine whether he was negligent, or whether his negligence was a factual cause of Ferguson's injuries. See N.T., 8/1/2012, at 60-61. The jury was not told why Morton was negligent, or that, by not answering the complaint, he admitted he was operating the motorcycle at the time of the accident. Accordingly, Ferguson cannot rely upon the entry of the default judgment against Morton to support the jury's verdict.
Indeed, he could have admitted he was negligent for permitting a different unlicensed driver to operate his motorcycle.
In any event, Ferguson contends she presented sufficient evidence for the jury to conclude that PCC negligently entrusted the motorcycle to Morton. As explained supra , Ferguson's negligent entrustment claim required proof that: (1) PCC was the owner/operator of the motorcycle, (2) PCC permitted Morton to use the motorcycle (3) when PCC knew or had reason to know Morton intended to or was likely to use the motorcycle in a manner which would create an unreasonable risk of harm to others. See Restatement (Second) of Torts § 308. In addition, she must establish that the trustee (Morton) was causally negligent for the accident. Christiansen , supra , 667 A.2d at 400. Upon a thorough review of the record, the parties' briefs, and the relevant case law, we find no error or abuse of discretion in the trial court's ruling.
We emphasize that while the trial court focused only on the lack of evidence demonstrating Morton was driving the motorcycle at the time of the accident, our ruling is broader, as we conclude Ferguson failed to present sufficient evidence to support the second and third elements of its negligent entrustment case. "Nevertheless, we are not bound by the rationale of the trial court and may affirm on any basis." J.J. DeLuca Co. v. Toll Naval Associates , 56 A.3d 402, 419 (Pa. Super. 2012) (quotation omitted).
With respect to the first element - ownership/control - Ferguson contends there was "sufficient evidence for the jury to determine that PCC had ownership of the motorcycle involved in the accident" because the sales transaction was "replete with errors." Ferguson's Brief at 28, 29. She first emphasizes PCC's computer system contained a default setting that listed every purchaser as possessing a motorcycle license, regardless of whether that person actually did so. Furthermore, Ferguson notes the impound notice following the accident was sent to Arthur Moss, the previous owner of the motorcycle at issue, who had traded it in to PCC. Lastly, Ferguson points to the testimony of her expert witness, William Nash, who opined "PCC still owned the motorcycle because title had not transferred to Morton." Ferguson's Brief at 29, citing N.T., 7/31/2012, at 201-202, 228-229.
Nash testified he owns a retail motorcycle shop in California, builds custom motorcycles, and is an "expert in the motorcycle field." N.T., 7/31/2012, at 148. His qualification as an expert witness in this case is not an issue on appeal.
PCC, however, asserts that once the motorcycle was sold to Morton on June 5, 2012, "it was Morton - not PCC - who had the property rights to the motorcycle and was its owner." PCC's Brief at 28 (emphasis omitted). Furthermore, Ferguson's expert conceded that a person can purchase a motorcycle without a proper motorcycle license, but "just can't operate it." N.T., 7/31/2012, at 223.
Viewing the evidence in a light most favorable to Ferguson, as verdict winner, we find the facts presented to the jury, including Nash's testimony regarding the lack of transfer of title, and the evidence that the previous owner received the impound notice (supporting the assertion that title was not properly transferred), were sufficient for the jury to conclude PCC still, technically, retained an ownership interest in the motorcycle after it was delivered to Morton. See 75 Pa.C.S. § 102 (defining "owner" as "[a] person, other than a lienholder, having the property right in or title to a vehicle.").
See Dubrose , supra.
However, while we agree Ferguson presented sufficient evidence to support the jury's verdict on the first element of her claim, we find she failed to establish the remaining elements, that PCC permitted Morton to use the motorcycle, knowing or having reason to know he was likely to use the motorcycle in a manner which could create an unreasonable risk of harm to others. See Restatement (Second) of Torts § 308. Furthermore, we agree with the conclusion of the trial court that Ferguson failed to establish Morton, himself, was the operator of the motorcycle at the time of the accident.
Ferguson's claim is based on the following allegations: (1) Morton did not have the proper endorsement on his license to operate a motorcycle; (2) PCC's computer system contained a default setting which indicated all purchasers had proper motorcycle licenses; (3) PCC's sales manager did not ask Morton how he intended to operate the motorcycle without a proper license, but rather, just handed him the keys; (4) Morton rode the motorcycle off the lot; and (5) Morton admitted via the default judgment that he operated the motorcycle at the time it struck Ferguson. See Ferguson's Brief at 29-32. Accordingly, Ferguson asserts "there was sufficient evidence for the jury to determine that [] PCC should have known that a person who did not possess a motorcycle license, here, Mr. Morton, would likely operate the motorcycle in an unsafe and/or unskilled manner[.]" Id. at 32. We find, however, the record does not support her claims.
First, Ferguson contends she presented sufficient evidence for the jury to conclude that PCC permitted Morton to "use" the motorcycle knowing or having reasons to know he was likely to use it in a manner that would create an unreasonable risk of harm to others. In support of her claim, she states PCC "failed to inquire about the absence of the motorcycle endorsement on [Morton's] license or take any precautions related to the absence of a motorcycle license[,]" but rather simply handed him the keys. Ferguson's Brief at 29. She also emphasizes PCC's computer system "was programmed to allow unlicensed purchasers to buy vehicles." Id. Ferguson asserts "the jury had an opportunity to consider whether PCC's casual attitude regarding Mr. Morton's ability to safely and legally ride the motorcycle he purchased was a factual cause of [her] injuries." Id. at 30. Moreover, she notes that PCC's actions were violative of the Motor Vehicle Code, which "imposes the identical liability upon a person who permits an unauthorized person to operate a motor vehicle[.]" Id. See 75 Pa.C.S. § 1574(a). Ferguson contends that when PCC allowed Morton to ride the motorcycle off the lot, it "should have known that a person who did not possess a motorcycle license ... would likely operate the motorcycle in an unsafe and/or unskilled manner[.]" Id. at 32. Therefore, she claims the eventual accident was a foreseeable consequence of PCC's negligence. See id. at 41 ("[T]he jury could reasonably conclude based on the evidence and admissions that it was foreseeable that Derrick Morton, an unlicensed operator, who was permitted to drive a motorcycle from a dealership, might be further negligent and allow other unlicensed persons to operate the motorcycle - to the danger of any persons near the cycle, including the plaintiff.").
We find, however, the evidence before the jury does not support the inferences Ferguson maintains. First, the default setting in PCC's computer system is a red herring. PCC's sales manager testified he made a copy of Morton's driver's license, and knew, at the time of the transaction, Morton did not have a motorcycle endorsement. See N.T., 7/31/2012, at 43. Further, Ferguson's expert conceded that a person who is not licensed to operate a motorcycle may still purchase a motorcycle: "Well, the sale of a motorcycle to somebody is okay, but the delivery, winding up with a ride-off to an unlicensed driver is improper." Id. at 209.
In Ferguson's view, PCC's liability derives from the fact that PCC permitted an unlicensed operator to ride off the lot. Assuming, arguendo, that fact is true, that alone does not support an inference that PCC knew or should have known Morton would "conduct himself ... in such a manner as to create an unreasonable risk of harm to others" or permit someone else to do so. Restatement (Second) of Torts § 308.
Although Ferguson's expert opined that Morton rode the motorcycle off PCC's lot, his opinion was based solely on the fact that (1) Morton purchased the motorcycle, and was alone when he completed the paperwork, and (2) PCC's owner testified in a deposition that there was "nothing unordinary about Morton's purchase." N.T., 7/31/2012, at 165, 204. See id. at 205-206 (Ferguson's expert explaining, "The absence of a motorcycle license would be out of the ordinary in the sale of a motorcycle inclusive of a ride-off."). Although Morton testified he did not drive the motorcycle off the lot, but rather transported it in the back of a pick-up truck, see N.T., 7/31/2012, at 293-295, our standard of review requires us to view the evidence in the light most favorable to Ferguson. See Dubose , supra. Therefore, we do not rely upon Morton's testimony in our analysis.
As the trial court opined, Ferguson presented no evidence that Morton, himself, was operating the motorcycle at the time of the accident. See Trial Court Opinion, 5/27/2015, at 5-6. As explained above, Ferguson could not rely upon the admissions Morton made by virtue of the default judgment because (1) his admissions were not binding on PCC, and (2) in any event, his admissions were not read to the jury. Therefore, the only evidence presented to the jury in support of a finding that Morton was the operator of the motorcycle at the time of the accident was the following: (1) Morton purchased the motorcycle earlier that day from PCC, and (2) Morton told the investigating officer that he was the owner of the motorcycle. None of the witnesses testified that Morton operated the motorcycle at the time of the accident. The jury's determination that he did so based on this limited evidence is pure speculation. Our Supreme Court has opined:
As a general matter, a party bringing a civil action must prove, by direct or circumstantial evidence, facts by which the trier of fact can reasonably draw the inference urged by the plaintiff. Nonetheless, there is a limit to the inferences that the jury may reasonably draw from such circumstantial evidence. Viewed as a whole, the "evidentiary threads" must be sufficient to "lift [the] contention out of the realm of speculation." Thus, while the jury may draw reasonable inferences, it "may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but ... there must be evidence upon which logically its conclusion may be based." "Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors' own knowledge and experiences, for that is, of course, the very heart of the jury's function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by [the]
plaintiff, and not that the conclusion must be the only one which logically can be reached."Fitzpatrick v. Natter , 961 A.2d 1229, 1241-1242 (Pa. 2008) (internal citations omitted and emphasis supplied).
Nevertheless, even if we assume Morton was the driver at the time of the accident, the fact that PCC knew he was not licensed to operate a motorcycle does not establish PCC had reason to believe he would operate the motorcycle in an unsafe manner. Morton was a prior customer of PCC's, having purchased a scooter previously. There was no evidence presented that he had ever operated any vehicle in an unsafe manner, or that PCC had reason to believe he would. He did, in fact, have a valid driver's license. The sole fact that he was not properly licensed to operate a motorcycle - and that PCC may have violated Section 1574 of the Motor Vehicle Code by allowing him to do so - is not determinative.
75 Pa.C.S. § 1574 provides that a person is guilty of a summary offense if he "authorize[s] or permit[s] a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven." 75 Pa.C.S. § 1574(a).
In Chamberlain v. Riddle , 38 A.2d 521, 523 (Pa. Super. 1944), a panel of this Court declined to impose liability on the owner of a vehicle who had entrusted it to an unlicensed driver. In that case, the 18-year-old driver did not have a valid license when the owner hired him to wash his car Id. at 522. The owner knew the driver intended to drive the car to a local service station and then return it to the owner. Id. The driver, however, took another route, and struck a minor on a bicycle. Id. When the minor sued the owner of the car, the trial court granted a nonsuit in favor of the owner.
A panel of this Court affirmed on appeal, concluding that the owner was not liable to the plaintiff simply because he "entrusted his automobile to an unlicensed driver." Id. Although the Court recognized the owner may have violated the Motor Vehicle Code, it found "there [was] nothing to show that the violation was the proximate cause of [the minor's] injury." Id. at 523. The panel opined:
In some states the owner is considered negligent, per se, when permission to operate a car is given to a person forbidden by law, if harm ensues from the carelessness of the operator, but in this state it has generally been held that a violation of a statute will allow a recovery by the plaintiff "only where such violation was the proximate or an efficient or 'legal' cause of the accident-that is, in the language of the Restatement, Torts-when the actor's conduct was 'a substantial factor in bringing about the harm.'Id. at 511 (internal citations omitted). See also Ferry , supra , 709 A.2d at 404 (finding no evidence to prove car salesman's failure to procure driver's license from potential customer prior to test drive was not proximate cause of plaintiff's injuries resulting from accident during test drive).
If the record had shown any circumstances sufficient to acquaint a reasonably prudent person of some incompetence on the part of [the driver], then the fact that [the driver] was unlicensed would have been some evidence of negligence to go to the jury together with the other testimony. However, [the minor] failed to produce any. And in our opinion proof merely that [the driver] had no license is insufficient to show that [the owner] was negligent in letting him have his car. We shall not impose a duty upon an owner to see the license card of an apparently mature and competent person before entrusting his car to him.
We recognize that in the present case, PCC knew Morton did not have a motorcycle operator's license when it sold him the vehicle. However, we reiterate that fact alone is not dispositive. As noted supra, it is legal to sell a motorcycle to a person without a motorcycle operator's license. Moreover, nothing about the transaction provided PCC with any reason to believe Morton was likely to either use the motorcycle in an unsafe manner or allow others to do so. No one saw him drive recklessly off the lot. There was no evidence presented that he had been in other accidents or that PCC should have been on notice that he was an unsafe driver. Morton, in fact, had a valid driver's license for motor vehicles. Indeed, the jury's verdict was based on assumptions and inferences too attenuated to merit relief.
We also conclude that Ferguson's reliance on two Common Pleas Court decisions, Green v. Klein , 16 Pa. D & C 5th 144 (Pa. Com. Pl. 2010), and Lincoln v. Fisher , 22 Pa. D & C 5th 371 (Pa. Com. Pl. 2011), aff'd, 32 A.3d 826 (Pa. Super. 2011) (unpublished memorandum), is misplaced. We emphasize: "[D]ecisions of the Court of Common Pleas are not binding precedent; however, they may be considered for their persuasive authority." Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396, 411 (Pa. Super. 2012), appeal denied, 72 A.3d 604 (Pa. 2013).
Accordingly, because we find no basis to disturb the ruling of the trial court, we affirm the judgment in favor of PCC.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016
In Green , supra , the Court of Common Pleas of Monroe County found it "premature" to dismiss a claim for negligent entrustment on preliminary objections, when the plaintiff averred the defendant owner of a vehicle was negligent in entrusting his son to drive the vehicle. Green , supra , 16 Pa. D & C 5th at 151. Specifically, the plaintiff alleged the defendant owner knew his son had been "previously convicted for various moving violations including driving while his license was suspended or revoked," and the owner had, in fact, signed an endorsement from his insurance company which voided his automobile insurance while his son was driving. Id. at 150-151. Accordingly, the evidence presented in Green , at a preliminary stage in the proceedings, was much more compelling than that in the present case.
The facts in Lincoln , supra , however, were similar to those presented herein. In that case, the defendant dealership sold a motorcycle to Kevin Fisher, knowing he did not have a motorcycle license. Lincoln , supra , 22 Pa. D & C 5th at 375. A few days after the sale, Fisher returned to the dealership with a friend who had a motorcycle permit, and the friend drove the cycle to Fisher's house. Id. at 376. Five days after the sale, Kelly Lincoln was riding as a passenger on the motorcycle, while it was being operated by Fisher. Id. The motorcycle was involved in an accident, and Lincoln sustained personal injuries. Id. Thereafter, Lincoln filed suit against Fisher and the defendant dealership. The trial court entered a pretrial order dismissing the cause of action against the defendant dealership stating:
I know of no case law that suggests a motorcycle dealer may be liable for accidents or an injury arising after the motorcycle is sold so long as someone with a valid motorcycle license has driven it off the lot, or the store delivers it to an unlicensed driver. In this case, it is not disputed that [the person who] drove the motorcycle off the lot [] possesses a valid motorcycle license. Once this occurred, any liability of [the dealership] ceased.Id. at 377.
Here, Ferguson argues "the implication of the [ Lincoln ] court's opinion is that it may have ruled differently had the purchaser not possessed a valid motorcycle license." Ferguson's Brief at 42 (emphasis in original). However, we decline Ferguson's invitation to speculate how a trial court might have ruled if the facts presented to it were different. While a panel of this Court affirmed the Lincoln decision in an unpublished memorandum, the panel did so primarily because "the record failed to reflect evidence that [the dealership] had the right to control the motorcycle on the date of the accident." Lincoln , supra , 32 A.3d 826 (unpublished memorandum at 12). The panel also noted "there [was] no evidence that [the dealership] knew or should have known that Mr. Fisher intended to operate the motorcycle prior to procuring a valid license." Id. at 13 (footnote omitted).
While we recognize the facts in Lincoln present a clearer case against the liability of the dealership than those herein, we still find that, in the present case, Ferguson failed to present sufficient facts to demonstrate PCC's negligence.