Opinion
Docket Nos. 96646, 98278.
Decided June 7, 1989. Leave to appeal applied for.
Feikens, Foster, Vander Male De Nardis, P.C. (by Ronald F. De Nardis, Gregory J. Muller and Joseph E. Kozely), for plaintiffs.
Brandt, Hanlon, Becker, Lanctot, McCutcheon, Martin Schoolmaster (by Charles E. Pfeffer), and Gromek, Bendure Thomas (by John A. Lydick), of Counsel, for defendant.
Plaintiff Alfio Caradonna was injured in an automobile accident on October 14, 1981, when his car was rear-ended by a car owned by defendant Jerry Krygiell and driven by Kenneth Arpino. In this suit for noneconomic losses under the no-fault act, defendant's liability was predicated solely on the automobile owners' liability statute, MCL 257.401; MSA 9.2101. In a pretrial ruling, the trial court determined that as a matter of law defendant impliedly consented to Arpino's use of his vehicle, and thus could be held liable for plaintiff's noneconomic losses if proven. Following trial, however, the jury returned a verdict of no cause of action, finding that plaintiff had not sustained a serious impairment of body function. Plaintiffs appeal as of right. Defendant cross appeals by leave granted the trial court's pretrial ruling on his liability. We conclude that the trial court erred in determining that defendant could be held liable for plaintiff's injuries, if any, under the owners' liability statute. Accordingly, we do not reach plaintiffs' claims on appeal.
Due to lack of space at his own residence, defendant kept the car involved in the subject accident in the parking area of the condominium complex where his girlfriend, Mary Ann Arpino, resided. Defendant gave Ms. Arpino the keys and asked her to move the car occasionally in order to make it look like it was being driven. While defendant did not offer use of the car to Ms. Arpino, neither did he restrict her from driving it. Ms. Arpino kept the keys on a hook in her kitchen.
Kenneth Arpino, Ms. Arpino's son, came to visit Ms. Arpino from California while on leave from the Navy approximately one week prior to the accident. Kenneth was expressly told by Ms. Arpino that he was not to drive her car or defendant's car.
On the date of the accident, Kenneth took defendant's keys from the Arpino residence without permission while Ms. Arpino was working. Defendant had never given Kenneth permission to drive the car. Neither defendant nor Ms. Arpino was aware that Kenneth was driving the car until after the accident.
The owners' liability statute, MCL 257.401; MSA 9.2101, provides in relevant part:
The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle. . . . The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. [Emphasis added.]
The operation of a motor vehicle by one who is not a member of the family of the owner, as here, gives rise to a rebuttable common-law presumption that the operator was driving the vehicle with the express or implied consent of the owner. Fout v Dietz, 401 Mich. 403, 405; 258 N.W.2d 53 (1977).
In this case, the trial court determined that defendant had impliedly consented to Kenneth's use of defendant's car. The court relied on Cowan v Strecker, 394 Mich. 110; 229 N.W.2d 302 (1975), and Delaney v Barnett, 63 Mich. App. 639; 234 N.W.2d 741 (1975), for its decision.
In Cowan, the defendant owner had given her car to a friend with specific instructions that no one else was to drive it. Contrary to this limitation, the friend allowed her son to drive the car without the defendant's knowledge. The plaintiff was injured in an accident while the friend's son was driving the defendant's car. The Supreme Court held that the defendant was liable for the plaintiff's injuries. The Court reasoned that when the defendant consented to her friend's driving the car, she consented to assume the risks attendant to surrender of control of the car. The fact that the owner had placed a limitation on her consent was deemed irrelevant.
Delaney involved similar facts. There, a car rental company leased a car to Mr. Davis pursuant to a written agreement which prohibited allowing anyone under twenty-one years old to drive the car. Davis loaned the car to a twenty-year-old, who struck the plaintiff. This Court held that the rental company was liable for the plaintiff's injuries under the owners' liability statute. Noting that the only difference between Delaney and Cowan was that in Delaney the owner's attempt to limit consent was in writing, the Delaney panel concluded that the rental company's restricted consent was invalid under Cowan.
Cowan and Delaney are both factually distinguishable from the instant case. In both Cowan and Delaney, the owner gave a permittee consent to operate his car, and the permittee then gave a third party permission to drive the owner's car. In this case, unlike in Cowan and Delaney, the driver of this defendant's motor vehicle did not have permission to drive from either defendant owner or his permittee. The uncontradicted testimony of Ms. Arpino was that she specifically told Kenneth Arpino that he could not drive defendant's car and that he took the car contrary to her instructions and without her knowledge. Defendant's car was effectively a stolen vehicle at the time of the accident.
In Fout v Dietz, 75 Mich. App. 128; 254 N.W.2d 813 (1977), aff'd 401 Mich. 403; 258 N.W.2d 53 (1977), a friend of the defendant owner took the keys from the defendant's bedroom while he slept, and subsequently had an accident with the defendant's car. The defendant had previously forbidden his friend from driving the car. In affirming this Court's conclusion that the defendant could not be held liable under the owners' liability statute, the Supreme Court held that the common-law presumption of consent of the owner to the driving of the vehicle at the time of the accident was clearly rebutted. 401 Mich. 406-407.
We are of the opinion that Fout controls here. Kenneth Arpino had no permission whatsoever to drive defendant's automobile, and had in fact been expressly forbidden from driving the vehicle by defendant's permittee, Ms. Arpino. The trial court apparently believed that, because Ms. Arpino kept the car keys in the kitchen, she impliedly consented to Kenneth's driving defendant's car. We cannot agree. Under that logic, persons would impliedly consent to social guests taking silverware from the dining room table or books from a living room shelf — a proposition with which no reasonable person could agree. Moreover, the court's reasoning suggests that one must affirmatively hide keys in order ever to establish nonconsent, an equally unreasonable proposition. Simply put, keeping keys in a kitchen does not imply consent to take a car, especially when one has been expressly told not to take a car.
As in Fout, we conclude in this case that, taking all the facts into consideration, the evidence adduced in the trial court clearly rebuts any inference that Kenneth Arpino used defendant's automobile with his or Ms. Arpino's express or implied consent when the vehicle was involved in the accident which injured plaintiff. As defendant did not consent, he was as a matter of law not liable for plaintiff's injuries. In light of this conclusion, we need not reach plaintiffs' claims of error relating to the jury's verdict.
Reversed and remanded for entry of judgment in favor of defendant. We do not retain jurisdiction.