Opinion
D056946 Super. Ct. No. ECU04451
08-25-2011
HECTOR LARES SOTO, Plaintiff and Appellant, v. DARIO VUJICIC, Defendant and Respondent; LIBERTY INSURANCE CORPORATION, Intervenor and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Imperial County, Joseph W. Zimmerman, Judge. Affirmed.
This appeal arises out of a defense summary judgment granted in the personal injury action brought by plaintiff and appellant Hector Lares Soto (Soto or Plaintiff), against several defendants. Soto was injured in a head-on collision when his work vehicle was hit by a diesel Dodge Ram pickup truck that was owned by defendant Vojislav Vujicic and his wife (not parties to this appeal; referred to together as V. Vujicic). On the night of the accident, they gave permission to their son, defendant and respondent Dario Vujicic (Dario or Defendant; sometimes together, the Vujicic defendants), to drive the truck overnight to the desert for a motorcycling trip. V. Vujicic also gave permission to drive to Dario's passenger, 19-year-old defendant Eric Bodjanac (not a party to this appeal; referred to here as Eric). Eric was driving at the time of the crash, after Dario became tired of driving and turned the wheel over to Eric.
Soto's personal injury complaint against the Vujicic defendants and Eric sought damages for negligence and negligent entrustment of the vehicle. Soto's workers' compensation insurer, intervenor and appellant Liberty Insurance Corporation (Intervenor), filed a complaint in intervention, alleging negligent entrustment.
The trial court granted summary judgment to Dario, ruling there was no legal basis for imposing duty or liability on Dario. (Code Civ. Proc., § 437c, subd. (c); all further statutory references are to the Code of Civil Procedure unless noted.) The court found no triable issues of fact existed on the issues of (1) Dario's actual or imputed knowledge of any facts suggesting incompetence of Eric to drive the truck, or (2) whether Dario owed a duty at the time of the accident to the plaintiffs.
In a companion ruling (not appealed), summary adjudication was granted in favor of V. Vujicic as to the negligent entrustment theory, on the ground that there were no triable issues of fact regarding his knowledge of any facts suggesting it would be negligent to entrust the vehicle to the driver, Eric. Soto's negligence claim against V. Vujicic for statutory owner liability remains pending. (Veh. Code, § 17150 et seq.)In the briefs on appeal, the parties represent that the trial court has stayed the effect of the ruling on the remaining defendant, V. Vujicic, pending the outcome of this appeal of the judgment for Dario.
Vehicle Code section 17150 et seq. provides for limitations on liability of motor vehicle owners in the permissive user context. Vehicle Code section 17150 states that the owner is liable for damages for personal injury (or death or property damage) "resulting from a negligent or wrongful act or omission in the operation of the motor vehicle . . . by any person using or operating the same with the permission, express or implied, of the owner." Under Vehicle Code section 17151, subdivision (a), in relevant part, such owner liability that did not arise through "the relationship of principal and agent or master and servant is limited to the amount of $15,000 for the death of or injury to one person in any one accident . . . ."
Soto and Intervenor (sometimes together, Soto) appeal, claiming the trial court erred in ruling that in light of all the circumstances known to Dario as of the time of the accident, Dario (then in control of the truck) was not possessed of such knowledge of any existing problems with Eric's ability to drive safely, that would support imposing on Dario any duty not to allow him to drive the truck. Soto also claims there are triable issues of fact regarding the breach of such an alleged duty by Dario, and certain evidentiary objections to his traffic expert's declaration should not have been sustained.
In an appropriate case, the existence or nonexistence of a negligence-based duty may be determined as a matter of law in summary judgment proceedings. (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712-713 (Osborn).)On de novo review of these essentially undisputed facts, we find Soto's contentions of duty and breach as to Dario have no merit. No issues regarding V. Vujicic or Eric are now before us. We affirm the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Accident; Actions Are Filed
The objective facts of the November 23, 2007 accident are not in dispute. The parties' separate statements show that V. Vujicic owned the 2001 Dodge Ram 2500 diesel truck as a family vehicle, and Dario drove it on a regular basis. Nineteen-year-old Eric was a longtime family friend, and he had driven the truck once a few years before the accident. Eric obtained his driver's license at age 16 1/2 and since then, had made several road trips with Dario, sharing the driving. Dario knew that Eric had received two speeding tickets during the two-year period after he got his license (exceeding the speed limit by approximately 20 miles each time). Eric had never had an accident or close calls while driving.
Late on Thanksgiving evening in 2007, Dario, Eric and a friend were planning their driving trip to a desert location six hours away, Glamis, to go motorcycling the next morning. V. Vujicic expressed concerns that there might be drunk drivers on the road, because it was a holiday weekend, and it would be better to wait until morning when the young men had some rest. Nevertheless, he allowed them to use the truck, and let them know that he expected them to trade off driving if one of them became tired. The young men set out after midnight to drive the truck, loaded in its six-foot truck bed with three motorcycles and cargo weighing approximately 900 pounds. Dario drove until about 2:00 a.m., when they stopped in Yucaipa and bought energy drinks.
Around 2:30 a.m., it was pitch black, and Dario was tired, so he and Eric decided that Eric would drive. Eric had never driven this road (SR-78) before. When Eric started driving, the road was four lanes, but as they approached the Glamis area, it became a two-lane road. Around 3:30 a.m., Eric was trying to pass a line of three or four "toy haulers" (trucks with a tow), but after accelerating, he swerved several times and crashed into Soto's oncoming vehicle at full speed, badly injuring him.
In June 2008, Soto sued Dario, V. Vujicic and other family members, and Eric, on two causes of action, negligence and negligent entrustment. He generally alleged all defendants were negligent and the Vujicic defendants had negligently entrusted the truck to the driver, Eric, proximately causing his injuries.
In Intervenor's operative pleading, an amended complaint in intervention, it alleged Soto was driving in the course of his employment when the accident occurred, and Intervenor was entitled to recover from defendants the workers' compensation benefits it had paid on his behalf. Intervenor alleged that both V. Vujicic and Dario negligently entrusted the truck to the driver, proximately causing the truck to strike Soto's vehicle. Defendants allegedly had actual and/or constructive knowledge of prior acts of the driver's vehicular negligence, "unfitness to drive, youth, inexperience, and lack of ability to safely operate" the truck. All defendants answered the complaints.
B. Summary Judgment/Adjudication Motions
Both Vujicic defendants brought motions for summary judgment or summary adjudication. Dario sought summary judgment on both causes of action, negligence and negligent entrustment, initially on the grounds that he was not an operator or owner of the Dodge truck, but merely a passenger. He further argued that Soto could not prove grounds for demonstrating a legal basis for liability for any breach of duty on theories of negligent entrustment, nor statutory negligence of a vehicle owner. (Veh. Code, § 17150 et seq.)
As will later be discussed (pt. II, post), for purposes of analysis, we will interpret negligent entrustment authorities broadly enough to encompass Dario as a permitter, controller, or entruster of the vehicle to Eric, and his actual ownership or co-ownership would not be required to support Soto's allegations against Dario. (CACI No. 724 [negligent entrustment].)
V. Vujicic's motion argued summary adjudication of the negligent entrustment claim was appropriate. He claimed there were no triable issues regarding any knowledge that he had or could have had about Eric's incompetence to drive. He had observed Eric driving numerous times, had lent the truck to him once for a long trip, and believed him to be a licensed and competent driver.
Each defendant lodged deposition excerpts from Dario, Eric, and V. Vujicic, to the effect that Eric was known to them to be a safe driver locally and on the highway, and they did not know of any accidents or other red flags that would have caused them to be concerned about Eric's fitness to drive. Eric had driven the same Dodge truck approximately 180 miles in 2006, and he was also familiar with his father's 2005 Chevrolet diesel truck, which was similar. Eric knew that a diesel truck is slightly slower to respond than gas-powered trucks, when the accelerator is pressed. Eric had driven late at night before, and he did not feel tired when the accident happened.
The police report (lodged with the court) concluded that the cause of the accident was Eric making an unsafe pass of another vehicle, in violation of Vehicle Code section 21751. Although Eric reported he had had a single beer at 10:00 a.m. the day before the accident, he was not a chemically impaired driver at the time. No expert declarations were submitted by the defendants.
C. Opposition; Reply
Both Soto and Intervenor filed opposition to the defense motions, lodging other deposition excerpts from Soto, Eric, the Vujicic defendants, and the third passenger in the truck, Nicholas West. Regarding Dario's motion, Soto first argued that Dario could not rely on his lack of ownership of the vehicle, since he had controlled it and had permitted Eric to use it at the relevant time, such that negligent entrustment could properly be alleged and proved against him. Soto contended that triable issues of fact existed on whether Dario should have entrusted the truck to Eric, on the grounds of Eric's driving inexperience and/or fatigue at the time of the accident. In Eric's deposition, he admitted that he had always had a difficult time gauging distances in feet while driving, and he had not previously performed any passing maneuvers while driving this truck. Soto argued that under all the circumstances, inferences were justified that Eric must have been unduly tired and fatigued at the time.
In opposition to the motion brought by V. Vujicic, Soto argued that summary judgment could not be granted, since the owner of the vehicle was subject to statutory liability under Vehicle Code section 17150, such that the negligence cause of action could not be summarily adjudicated in his favor. Soto contended that triable issues remained about negligent entrustment, based on the failure to obtain further information about Eric's driving abilities. Eric believed that V. Vujicic had allowed the two young men to drive his truck because he said he had a good insurance plan.
As to both motions, Soto submitted the declaration of his traffic expert, Steven J. Bellino, about his study of the police report and the depositions, and his reconstruction of the accident. Bellino gave the opinion that both Dario and Eric, ages 18 and 19 at the time of the accident, were inexperienced in driving long distances, through the night in the dark, fatigued, on highways requiring frequent passing maneuvers. The expert believed that V. Vujicic (as well as Dario), knew or should have known of this inexperience, or should have collected more information about Eric's driving experience, before entrusting the vehicle to these drivers. The expert stated that such inexperienced drivers are less attentive to traffic conditions when they are fatigued, tired, driving long distances, in the dark, and they will likely have reduced depth perception and attention under such circumstances.
Intervenor separately filed opposition to each motion, making similar arguments, and Soto joined in that opposition. Intervenor contended that based on the knowledge that both Dario and V. Vujicic had about the circumstances of the trip being undertaken, these defendants owed legal duties to other drivers on the road to control the conduct of the driver, Eric (regardless of Dario's lack of ownership of the vehicle). Additionally, Intervenor contended there were triable issues of fact on Eric's competence to drive and about the defendants' knowledge of the risks of allowing the two young men to drive the truck that night. Intervenor relied on Eric's deposition to argue that he failed to stop in time, in part, because he told police he had some dirt bikes in the back and he didn't want to mess them up.
In reply, both defendants filed evidentiary objections to the expert declaration offered by Soto, as well as other objections that need not be described here (not expressly reargued on appeal). Chiefly, the defense objected that Bellino's statements amounted to conclusions of fact or law, or were speculative and made without personal knowledge or adequate foundation. The defense also argued that some of the deposition quotations were taken out of context and were misleading, because some of the statements were later corrected by defendants (e.g., Eric retracted his comment to police about his concern for his dirt bike cargo, saying he was nervous and said things he didn't realize because of what was going on at the time).
D. Rulings
The court reviewed the exhibits, heard argument of counsel, and requested proposed statements of decisions from the parties. After review of all the papers submitted, the court sustained certain evidentiary objections brought by Dario and granted the summary judgment motion in his favor. The court determined that there was no existing legal basis for imposing liability on Dario, "nor are there any triable issues of fact that Eric Bodjanac was incompetent to drive the truck nor are there any triable issues of fact that Dario owed a duty at the time of the incident to the plaintiff."
In its related order granting summary adjudication to V. Vujicic, finding there were no triable issues of fact regarding the cause of action alleging negligent entrustment of the vehicle by him, the court also sustained his evidentiary objections. Specifically, the court found no triable issues of fact were raised by Soto's expert (Bellino's) declaration, because the court considered the declaration to be wholly conclusory, without foundation or personal knowledge, and/or constituting improper legal opinions and conclusions.
On appeal, Soto reasonably assumes, and we agree, that the trial court's reasoning on the objections raised by V. Vujicic, to the expert's declaration, applied to Dario's motion as well, since he had raised the same objections. However, the order is somewhat unclear (only Dario's objections nos. 1-8 sustained, but expert opinion also found insufficient). The statutory owner liability claim remains pending as to V. Vujicic.
Summary judgment was entered for Dario. Soto and Intervenor appeal.
DISCUSSION
Soto and Intervenor contend that the trial court erred in granting Dario this summary judgment. They attack the court's underlying ruling that Dario was not deemed to be in possession of the kind of knowledge about Eric's competence or incompetence as a driver that would have imposed, as a matter of law, a duty of care upon him to prevent Eric from taking the wheel. They argue that on de novo review, this court should find triable issues about both duty and breach regarding their negligent entrustment theories, based in part upon the traffic expert's declaration.
To evaluate these arguments, we set forth established rules of review for summary judgments, then outline the requirements for imposing this type of legal duty upon vehicle owners or providers, in a negligent entrustment case. We then apply those principles to these facts.
I
SUMMARY JUDGMENT STANDARDS
The trial court's ruling on the motion for summary judgment is reviewed de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.) In doing so, we "apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Summary judgment should be granted if "all the papers submitted show that there is no triable issue of material fact and . . . the moving party is entitled to judgment as a matter of law." (§ 437c, subd. (c).)
To satisfy its burden, a moving defendant is not required to "conclusively negate an element of the plaintiff's cause of action. . . . All that the defendant need do is to 'show[] that one or more elements of the cause of action . . . cannot be established' by the plaintiff." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853(Aguilar),fn. omitted.) Once this defendant's burden is met, the "burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists . . . ." (§ 437c, subd. (p)(2).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings . . . to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar, supra, at p. 843.)
A motion for summary judgment must show that the "material facts" are undisputed. (§ 437c, subd. (b)(1).) The pleadings act as the measure of materiality in a summary judgment proceeding, and they frame the scope of the issues. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381; Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) Both Soto's and Intervenor's pleadings raise negligent entrustment allegations, although Intervenor adds more detail about the extent of knowledge supposedly held by the Vujicic defendants about Eric's "prior acts of vehicular negligence, unfitness to drive, youth, inexperience, and lack of ability to safely operate" the truck.
On de novo review, we view the evidence in the light most favorable to the plaintiffs, liberally construing the plaintiffs' submissions and strictly scrutinizing the defendants' showing, and we resolve any evidentiary doubts or ambiguities in plaintiffs' favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Vasquez v. Residential Invs., Inc. (2004) 118 Cal.App.4th 269, 274, fn. 2.) "Summary judgment will be upheld when, viewed in such a light, the evidentiary submissions conclusively negate a necessary element of plaintiff's cause of action, or show that under no hypothesis is there a material issue of fact requiring the process of a trial, thus defendant is entitled to judgment as a matter of law. [Citation.]" (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1360-1361.)
The existence of a tort duty presents a question of law for the court. (Kentucky Fried Chicken v. Superior Court (1997) 14 Cal.4th 814, 819.) In appropriate cases, a defendant's lack of negligence may be determined as a matter of law, on a motion for summary judgment. (See Richards v. Stanley (1954) 43 Cal.2d 60, 66-67; Osborn, supra, 205 Cal.App.3d 703, 712-713.) This determination includes analysis of the undisputed facts and policy considerations, for assessment of any sufficient support for the alleged duty. (Ibid.)
Courts are required to take into account these factors for determining the existence and scope of a duty, as laid out in Rowland v. Christian (1968) 69 Cal.2d 108, 113: "[T]he degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved."
II
THRESHOLD ISSUES: ROLES OF VUJIVIC DEFENDANTS
AS VEHICLE OWNERS/ENTRUSTERS
A. Background: Relationship of the Parties
Negligent entrustment theories may be separately alleged in many factual contexts involving another's use of a vehicle, against defendants who were acting in various capacities in supplying the vehicle (e.g., as an owner, renter, employer, parent, etc.). (See case summaries in Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 862- 863 (Jeld-Wen), a negligent entrustment case arising in the employer-employee factual context, citing e.g., Osborn, supra, 205 Cal.App.3d 703 [sober renter becomes drunk driver; rental company not liable to injured person]; Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332 (Dodge Center)[seller of car to an unlicensed driver who gets into accident; seller not liable to injured person].)
The Supreme Court recently decided Diaz v. Carcamo (2011) 51 Cal.4th 1148 (Diaz), a case presenting evidentiary issues about the interplay of causes of action by an injured plaintiff against an employee (negligent driving) and against the employer (negligent hiring). The court decided that the employer's concession of vicarious liability for its employee's negligence made it inappropriate to allow the admission of potentially prejudicial evidence about the employee's poor driving record, since it was unclear if the employee was actually negligent in the accident. (Id. at p. 1151.) The proper analysis treats the independent negligent entrustment cause of action as distinct from the allegations of underlying negligence of the driver who was entrusted with and operating the vehicle, such that liability for negligent entrustment depends upon the act of the permitter/entruster. (See e.g., Jeld-Wen, supra, 131 Cal.App.4th at pp. 863-864.)
Specifically, any liability of the entruster for the negligence of the incompetent driverdoes not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner." [Citations.]' " (Allen v. Toledo (1980) 109 Cal.App.3d 415, 419-420 (Allen), italics added [a father-son set of defendants]; Syah v. Johnson (1966) 247 Cal.App.2d 534, 538-539 (Syah)[employment context], disapproved on another point by Diaz, supra, 51 Cal.4th at p. 1160, fn. 1.)
Here, we have negligent entrustment alleged against Dario, the adult son of the owners of the vehicle. In considering Dario's exposure to liability on a negligent entrustment theory, we are not dealing with a vicarious liability scenario. This was not a case in which V. Vujicic was an employer who negligently entrusted the vehicle to a working employee, who then drove negligently, giving rise to a respondeat superior basis for liability of the employer for acts of the employee. (See Jeld-Wen, supra, 131 Cal.App.4th at pp. 862-864.) Nor is it a case of parental or statutory vicarious responsibility for the tortious acts of a minor child. (Veh. Code, § 17700 et seq.; see 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1227 et seq., pp. 604-611.) Rather, the pleadings identify Dario as an adult individual and seek to hold him directly liable based on his own alleged independent acts of negligence in deciding that Eric could drive the truck and giving him the keys. It is not dispositive that Dario is the son of the other Vujicic defendants, for purposes of analyzing his actions in allowing Eric to drive.
B. Ownership Issue
We next address whether it is important for our purposes that Dario had no ownership interest in the vehicle. In support of Dario's motion, he initially argued that his lack of ownership of the vehicle was extremely significant, such that only the actual person holding ownership papers (V. Vujicic) could be held liable for any negligent entrustment. Soto and Intervenor argued otherwise, since as of the time of the accident, Dario was in control of the truck and had permitted Eric to use and drive it, such that negligent entrustment could properly be alleged and proved against all the Vujicic defendants.
In his respondent's brief on appeal, Dario has shifted his arguments somewhat, primarily to contend that it was the parents in the family, V. Vujicic, who entrusted the vehicle to both young men and required that they take turns driving, and therefore, Soto cannot prove that it was son Dario who "sub-entrusted" the vehicle to Eric. Soto vigorously responds that this is a new argument on appeal of "superseding joint entrustment," and that Soto should be able to proceed on his original negligent entrustment theory equally against Dario and V. Vujicic.
The undisputed record is that Dario as a "provider" or "permitter" was in the position of having possession and control of the truck, and at the relevant time, he had the ability to make a decision to allow use of the instrumentality by another person. Dario's position is tantamount to that of the owner. (See Syah, supra, 247 Cal.App.2d 534, 539 [negligent entrustment liability is "imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was proximately caused by the driver's incompetency"], italics added.)
This conclusion is supported by the language of the CACI No. 724 jury instruction, setting forth the elements of proof of injury from a defendant's actions in negligently permitting an incompetent driver to use the defendant's vehicle. It correctly encompasses a defendant who "permitted" that driver to use the vehicle. (See Jones v. Ayers (1963) 212 Cal.App.2d 646, 658-659 ["one who negligently entrusts the driving of a car to another, whether the entrustor be owner or original permittee, is liable upon common law principles to one who is injured through negligence of the driver"].) The CACI No. 724 instruction can likely be adapted to cover situations in which an employer is not the actual owner of a vehicle that is entrusted, but instead is a lessor of it and who controls its use. (Jeld-Wen, supra, 131 Cal.App.4th at p. 864, fn. 8.)
In White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 920-921, footnote 1 (White), the court relied in part upon the Restatement Second of Torts analysis to apply negligent entrustment principles against "a supplier" of a chattel (rental airplane), who was deemed to be "aware of facts which establish that an individual lacks the ability to safely use the chattel for a particular purpose, and the supplier nevertheless entrusts the chattel to that individual to use for that purpose . . . ." In such an example, "the supplier has acted imprudently and should be held accountable if harm arises from the individual's inadequacy." (Id. at p. 921, citing Rest.2d Torts, § 390.) These authorities do not restrict the required entrustment analysis to an "owner," where the supplier is in the equivalent position as an owner.
In reviewing defense summary judgments, we are generally to consider the facts as shown to be in a light most favorable to the plaintiff as losing party. (Vasquez v. Residential Invs., Inc., supra, 118 Cal.App.4th 269, 275, fn. 2.) We therefore take it as established that a "supplier," "permitter" or "provider" of a dangerous instrumentality, such as a vehicle, is potentially exposed to negligent entrustment claims, and we need not engage in a debate about these facts relating to ownership or family relationships. Next, we seek to determine if Soto has established a duty and raised triable issues of fact based on Dario's knowledge of Eric's incompetence as a driver, if any.
III
NEGLIGENT ENTRUSTMENT CLAIM
A. Governing Legal Principles
Soto generally relies on Allen, supra, 109 Cal.App.3d 415, 421, involving parental entrustment of a vehicle to a teenage (adult) son, as requiring treatment of both the duty and breach issues as primarily factual in nature. "Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner [or other entruster] has exercised the required degree of care." (Ibid.) However, this general rule becomes inapplicable where the uncontroverted facts require a legal determination that no such duty arose on the part of the defendant. (Osborn, supra, 205 Cal.App.3d 703, 712-713.)
For both Soto's and Intervenor's negligent entrustment claims, on the initial duty question, they have to establish against Dario (independently of the truck owners, parents V. Vujicic), that Dario had knowledge about such hazards posed by Eric's inability or incompetence to drive, to make it negligent to do so. In Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 247, footnote 26, the majority opinion distinguishes between the evidentiary questions, under a given set of circumstances, that arise about (1) the preliminary, legal analysis on whether a defendant owed a duty of care to a plaintiff, under the given circumstances, or (2) the factual findings necessary to support a breach of such a duty, and/or determinations about substantial factor causation of harm.
The same analysis applies in distinguishing between the evidence necessary to prove a breach of an established duty, because of knowledge of incompetency, or the threshold determination of whether a legal duty was created on the undisputed facts. The authors of Haning, Flahavan & Kelly, California Practice Guide: Personal Injury (The Rutter Group 2010), paragraph 2:1044, page 2(ll)-85, note that in the negligence analysis, "the 'knowledge' element is often inextricably linked with the issue of whether the alleged 'entruster' had any legal duty to act in the circumstances." Such circumstances include the nature of the task to be performed with the instrumentality that is entrusted. (White, supra, 69 Cal.App.4th at pp. 920-921 [analyzing the special challenges to a pilot in utilizing the South Lake Tahoe Airport, due to weather and geographical conditions].)
Here, we inquire if Dario had a duty to act, or to control the conduct of Eric, by not allowing him to drive. The evidence showed that V. Vujicic had seen Eric drive numerous times, and he let the young men know that he expected them to trade-off driving if one of them became tired. It is not contested that Eric had a valid driver's license that had not been suspended. Soto focuses on the circumstances of the driving trip to argue that Dario was negligent in allowing Eric to drive. In making such a duty determination, the courts will focus upon "the importance of the facts. If a supplier of an automobile is aware that a driver with minimal skill intends to utilize the vehicle for a specific purpose for which the driver lacks the requisite skill, it would be imprudent for the supplier to entrust the vehicle to this driver for this specific purpose. On the other hand, if the supplier lacks awareness of the purpose to which the driver intends to put the vehicle, the supplier would not be liable for negligent entrustment based on the driver's lack of skills other than those minimally necessary to safely drive the vehicle. The information available to the supplier about the individual and his or her purpose in obtaining the chattel determines whether the supplier acts imprudently in supplying the chattel." (White, supra, 69 Cal.App.4th 910, 921-922.)
To proceed on a theory of negligent entrustment, a plaintiff must establish that the injuries claimed were proximately caused by the permitted driver's "disqualification, incompetency, inexperience or recklessness. . . ." (Allen, supra, 109 Cal.App.3d 415, 420.) In Allen, there was uncontroverted evidence that the bad driver (19-year-old Stephen, son of the defendant Robert who was charged with negligently entrusting a vehicle to Stephen) (1) had been involved in three recent vehicle accidents, in one of which he hit another vehicle and a house, and (2) Robert was aware of those facts. The appellate court upheld the jury verdict and judgment awarding damages to the plaintiff, because substantial evidence had been presented "from which the jury could conclude a reasonable and prudent vehicle owner with knowledge of Stephen's previous accidents would not have permitted Stephen to drive." (Id. at pp. 419-422.)
In another family case, Mettelka v. Superior Court (Greco)(1985) 173 Cal.App.3d 1245, the appellate court allowed a negligent entrustment cause of action to be filed by a plaintiff injured in an accident, against a father who had entrusted a co-owned vehicle to the son, who was driving. The allegations were deemed sufficient that the father, as co-owner, had power over use of the vehicle by the other, and he knew of the driver's incompetence, but nevertheless allowed the son to drive (negligently), such that the father could be charged with negligent entrustment of the co-owned vehicle. (Id. at pp. 1247-1250; see Cal. Practice Guide: Personal Injury, supra, [¶] 2:1041, p. 2(ll)-84; [¶] 2:1053, p. 2(ll)-87.)
Evidence of knowledge of a driver's prior incidents of inability to safely drive, as of the time when the entrustment of the vehicle is made, is a type of a "red flag" that may give rise to factual findings supporting a negligence determination. (See Syah, supra, 247 Cal.App.2d 534, 536; Jeld-Wen, supra, 131 Cal.App.4th at p. 868.) Such knowledge of Eric's "incompetency, inexperience, or recklessness" would be necessary. (Allen, supra, 109 Cal.App.3d 415, 420.) We accordingly evaluate the record support for Soto's negligent entrustment claims.
B. Evidentiary Showings
Soto's theory was that the Vujicic defendants, including Dario, had some knowledge of some facts about Eric's "prior acts of vehicular negligence, unfitness to drive, youth, inexperience, and lack of ability to safely operate" the truck, in order to impose upon them a duty not to allow him to drive the truck.
In his summary judgment motion, Dario submitted his deposition testimony to the effect that as far as he knew, Eric is a licensed and competent driver locally and on the highway, and he did not know of any accidents or other red flags that would have caused him to be concerned about Eric's fitness to drive. Such deposition testimony by V. Vujicic was also presented in the companion motion, to the same effect.
Dario also provided excerpts of deposition testimony by Eric, about his driving experience and the accident. Eric had driven the same Dodge truck approximately 180 miles in 2006, and he also drove his father's Chevrolet diesel truck, which was similar. Eric had not used this truck for passing maneuvers, but he knew that a diesel truck is slightly slower to respond than ordinary gasoline-powered trucks, when the accelerator is pressed. Eric had driven late at night before, and he did not feel tired or impaired when the accident happened. The police report found the cause of the accident was his unsafe passing maneuver, in violation of Vehicle Code section 21751.
In opposition to the motion, Soto relied on similar deposition excerpts from the participants. From them, Soto argued that it was imprudent and negligent for the young men to begin the driving trip late at night, in a heavily loaded truck, and for V. Vujicic to allow them to do so.
In support of his theories, Soto presented the declaration of his traffic expert, Steven Bellino, giving details about his study of the police report and the depositions and his reconstruction of the accident. Bellino gave the opinion that both Dario and Eric, ages 18 and 19 at the time of the accident, were inexperienced in driving long distances, through the night in the dark, fatigued, on highways requiring frequent passing maneuvers, and Eric had difficulty judging distances. The expert believed that V. Vujicic (as well as Dario), knew or should have known of this inexperience, or should have collected more information about Eric's driving experience before entrusting the vehicle to these drivers. The expert concluded that inexperienced drivers are less attentive to traffic conditions when they are fatigued, tired, driving long distances, in the dark, and they will likely have reduced depth perception and attention under such circumstances.
C. Exclusion of Expert Testimony
The trial court sustained V. Vujicic's evidentiary objections to the entirety of Soto's expert (Bellino's) declaration (no. 28), because the court considered the declaration to be wholly conclusory, without foundation or personal knowledge, and to constitute improper legal opinions and conclusions. As argued by Soto, this reasoning apparently was applied to Dario's motion as well, since he had raised the same type of objections.
On the merits of the objections, Soto contends the expert was entitled to render such uncontroverted opinions, so that the trial court erred in its wholesale exclusion of that declaration. Since the trial court granted summary judgment in Dario's favor, finding the expert declaration wholly unpersuasive, we consider whether it has any probative effect, i.e., whether the trial court abused its discretion in failing to rely upon that evidence.
The courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523 (Korsak). Evidence Code section 801, subdivision (b), provides that an expert witness can testify to an opinion "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
When expert testimony is offered about "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Evid. Code, § 801, subd. (a)), such testimony may be addressed to an ultimate issue in the case, consistent with the provisions of Evidence Code section 805. (1 Witkin, Cal. Evid. (4th ed. 2000) Opinion Evidence, § 97, pp. 644-646.) However, "it may not contain legal conclusions." (Ibid.) To illustrate, in Asplund v. Selected Investments in Financial Equities, Inc. (2000) 86 Cal.App.4th 26, 50, the court stated the "well established" rule that " 'the question of the existence and scope of a defendant's duty is a legal question which depends on the nature of the . . . activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.' [Citations.] It is equally well established ' " 'that experts may not give opinions on matters which are essentially within the province of the court to decide.' " ' " (Ibid.)
Evidence Code section 805 provides: "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact."
Dario did not contest Bellino's professional qualifications, but he objected to his declaration on the grounds that the statements in it, that a duty arose from certain facts that demonstrated Eric's poor qualifications to drive (inexperience and fatigue), dealt with legal conclusions and ultimate issues, rather than the proper subject of expert opinion. We agree that the expert's role was not to present legal conclusions to the court. Essentially, the expert stated as facts that inexperienced drivers, such as he deemed Eric and Dario to be, are less attentive to surrounding traffic and traffic conditions when they are fatigued, and are driving long distances in the dark. He concluded that Dario should have placed more restrictions upon Eric, under this set of circumstances (a long drive at night on a two-lane road requiring frequent passing, with fatigue and sleep deprivation as established contributing causes to the occurrence of the accident). These are his personal beliefs and interpretation of the particular facts of this case as told to him, but without adequate foundation in the evidence. The trial court appropriately declined to rely upon this expert's opinion evidence.
D. Analysis
A threshold issue for liability in such cases is the existence of any knowledge gained by the defendant that the driver was somehow unfit to operate the vehicle. (Dodge Center, supra, 199 Cal.App.3d at p. 338; Cal. Practice Guide: Personal Injury, supra, [¶]2:1041, p. 2(ll)-84.) Either actual or constructive knowledge that the driver was incompetent, or that circumstances existed to reasonably indicate that the driver would create an unreasonable risk of harm to others, is required. An owner or provider or supplier of the vehicle is required to meet the standard of how an ordinarily prudent person would act, under the same circumstances. (Osborn, supra, 205 Cal.App.3d at p. 709; White, supra, 69 Cal.App.4th 910, 920-921.) Two main issues are presented in this respect, regarding Eric's license status and driving experience, and the particular conditions and circumstances of this trip.
On the licensing issue, Eric had been a licensed driver for over two years, and had driven this particular vehicle and a similar vehicle at night on similar trips. In White, the aircraft case, the court found licensed status not to be dispositive. The court expounded upon the meaning of the word "competent," as "a fairly broad term which can have several different meanings. It is commonly understood to mean 'having requisite or adequate ability or qualities' or 'legally qualified or adequate.' [Citation.] Similarly, the word 'incompetent' is commonly understood to mean 'inadequate to or unsuitable for a particular purpose,' 'lacking the qualities needed for effective action' or 'not legally qualified.' " (White, supra, 69 Cal.App.4th at pp. 921-922.)
The appellate court in White concluded that a jury verdict of damages for negligent entrustment was supported, where the defendants had provided a rental airplane to "a brand new pilot with very little solo experience and no flying experience at any high altitude airport surrounded by mountains," a particularly hazardous form of flying, takeoff, and landing. The defendant's agents understood that the pilot had a "low skill level" and seemed to have learned to fly "by rote," and he had not completed certain training (an industry-standard high altitude checkout policy). Together, those factors undermined the licensed status of the inexperienced pilot, sufficient to support a negligent entrustment judgment against the supplier of the plane. (White, supra, 69 Cal.App.4th 910, 922.)
Here, Dario knew Eric had had two speeding tickets, but Eric's license validity was unaffected. Driving this truck did not require any special form of a license. There was no evidence that any extreme challenges were present, as in White, to undermine Eric's legal and presumed ability to drive under normal driving conditions. It is not enough to support Soto's cause of action that Eric was relatively young as a driver and relatively inexperienced, in comparison to some other drivers. (Dodge Center, supra, 199 Cal.App.3d at p. 341.) Courts inquire whether the person to whom the vehicle was entrusted " 'lacks the training and experience necessary for such use . . . .' [Citation.]" (White, supra, 69 Cal.App.4th 910, 920, fn. 1.) "[I]nexperience alone does not necessarily establish incompetency." (Id. at p. 920.)
Regarding the particular conditions and circumstances of this trip, Eric and others stated that the truck was in working order at the time. Eric knew that diesel trucks are somewhat slower to respond when the accelerator is pressed, based on his previous experience in driving them. It was not dispositive that Eric had not driven this particular road before, since the evidence was that he had driven both this truck (loaded with motorcycles) and his father's similar diesel truck on long car trips with Dario. There is no required legal presumption that a driver on a particular road for the first time is more accident prone than one who drives it regularly. (See Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 649-651 [accident caused by rental driver's illegal U-turn].) Likewise, Dario was not reasonably required to ascertain whether Eric had ever done a passing maneuver in this truck before he allowed him to drive it.
In and of themselves, the nighttime conditions and darkness at the time of the accident did not demonstrate incompetence of the driver to handle them, such that Dario must have known he should have refused to allow Eric to drive. These conditions were not so out of the ordinary, as were the conditions at the South Lake Tahoe Airport, to support a duty to inquire further before allowing use of the vehicle because of known heightened risks. (White, supra, 69 Cal.App.4th at pp. 920-921.) In hindsight, it is most regrettable that these young men set off to drive a heavily loaded vehicle overnight, but the police report of the accident blamed the accident on an unsafe passing maneuver, which was a decision of an instant and could have happened at any hour, and was not shown to be fatigue-related. Although Eric stated in his deposition that he had always had trouble gauging distances in feet, he also said that he had not had any trouble with his vision and that he was not tired at the time of the accident, and he had experience driving late at night.
In these summary judgment proceedings, the trial court could properly determine that Dario, as the moving party, had brought forward sufficient evidence to demonstrate that the entrustment of the vehicle to Eric, based upon the knowledge about Eric that Dario had at the time, was not unreasonable or negligent. Soto did not present admissible evidence to negate that showing. When we examine the standard factors for determining the existence and scope of a legal duty, as they are laid out in Rowland v. Christian, supra, 69 Cal.2d at page 113, we do not see the required closeness of the connection between this defendant's conduct and the injury suffered, nor that it would legitimately promote the policy of preventing future harm to impose further restrictions upon a person in control of a vehicle, based upon the type of knowledge that this person (Dario) was shown to have at the time.
In an appropriate case, a defendant's lack of negligence may be determined as a matter of law. (Osborn, supra, 205 Cal.App.3d 703, 712-713.) Here too, "defendant was not negligent for entrusting a car to a person lawfully qualified and apparently fit to . . . drive it. The trial court properly entered summary judgment for defendant." (Id. at p. 713.) We need not address any remaining breach of duty or causation issues regarding Dario. (Aguilar, supra, 25 Cal.4th 826, 850-851.)
DISPOSITION
The judgment is affirmed. Costs are awarded to Respondent.
HUFFMAN, Acting P. J. I CONCUR:
O'ROURKE, J.
I CONCUR IN THE RESULT:
HALLER, J.