Opinion
No. 64558-7-I.
Filed: May 9, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-03073-3, Gerald L. Knight, J., entered November 16, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Ellington and Lau, J J.
UNPUBLISHED OPINION
Ronald Pace sued James Davis, his son Scott Davis, and his grandson Tyler Davis for injuries resulting from an accident involving a jet ski. He advanced several theories of liability, but failed to establish any of them with sufficient evidence, even assuming we would apply them in this context as a matter of law. Pace failed to prove negligent entrustment, offering no evidence to negate that of a clear direction from the jet ski owner, James Davis, that no one had permission to ride the jet skis. Likewise, this lack of evidence renders his theory of vicarious liability based on agency unsupportable. Moreover, we would hesitate to apply this presumption, applicable to the use of an automobile, in the circumstance of a borrowed jet ski.
Pace advances another related theory, the family car doctrine, which is also inapplicable here where the alleged driver does not reside in the same household as the vehicle owner. Additionally, there are insufficient sound policy reasons justifying such an extension. Simply stated, jet skis may be annoying and dangerous when improperly operated but they are not so ubiquitous that their improper operation arises to a serious social problem. Finally, Pace was unable to convince a jury of Scott Davis' involvement in the accident and simply had no facts to tie Tyler Davis to it either. The trial court is affirmed in all respects.
FACTS
On June 30, 2006, Ronald Pace and two friends took a ride on the Columbia River in Pace's boat. At some point in the evening, three individuals riding jet skis approached Pace and asked if they could ride in the wake behind Pace's boat. Pace agreed and one of the jet skiers unexpectedly rode up to the driver's side of the boat and sprayed the boat with water. Another jet skier then rode up on the right side of the boat at a high rate of speed, cutting off the boat and requiring Pace to make an abrupt turn to avoid hitting the jet skier. The abrupt turn caused one of the passengers to fall from his seat and into Pace, slamming Pace into the side of the boat.
Pace did not get a good look at any of the jet skiers, but recalled that the one who cut him off resembled Brian Bosworth, a former professional football player, and was stocky with light-colored, short hair sticking straight up. Pace also recalled seeing something yellow on one of the jet skis involved. Additionally, Pace saw the hull number of the jet ski that cut him off. That number was traced to the owner of the jet ski, who was identified as James Davis and also owned a vacation property in the area.
Following the accident, Pace received medical care from emergency medical technician (EMT) personnel who responded to the scene. He was transported to the hospital where he was diagnosed with a fractured clavicle and shoulder injuries. Police investigated the incident and contacted James Davis, who denied that his jet ski was in use on that day. The police investigation was ultimately closed as inconclusive and no citations were issued.
Pace then sued James Davis and "John Does 1,2,3" in Snohomish County Superior Court, alleging Davis was vicariously liable for Pace's injuries based on theories of negligent entrustment, agency, and the family car doctrine. After further discovery, Pace filed a second suit against James Davis' son, Scott Davis, and his grandson, Tyler Davis, alleging that they were two of the jet skiers involved in the incident and were liable for damages caused by their negligent operation of the jet skis. The complaint alleged that Scott was riding the jet ski with the hull number traced back to James and that he was the one who cut off Pace. The complaint further alleged that Tyler was riding a different model jet ski, a "1997 Sea-Doo," at the time of the accident.
For clarity, the defendants will be collectively referred to as "Davis," while the individual Davis family members will be referred to by their first names.
The cases were consolidated and James moved for summary judgment, contending that there was insufficient evidence of negligent entrustment and that Pace failed to establish liability as a matter of law under theories of agency and the family car doctrine. In response, Pace relied on James' deposition testimony in which he admitted that he knew Tyler and Scott rode the jet skis in the morning of the accident. The court granted the motion and dismissed the claims against James.
Scott and Tyler then moved for summary judgment, contending that there was insufficient evidence that they were involved in the incident. The court granted summary judgment for Tyler, but denied the motion for Scott. Pace proceeded to trial against Scott on the negligence claim and the jury returned a verdict in favor of Scott. Pace moved for a new trial, but the trial court denied the motion. Pace appeals.
ANALYSIS
I. Summary Judgment
Pace first contends that the trial court erred by granting summary judgment for James because there were issues of material fact about whether James negligently entrusted the jet skis to Scott and Tyler. We disagree.
We review summary judgment orders de novo and engage in the same inquiry as the trial court. We will affirm a summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In reviewing a summary judgment, we construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Under the theory of negligent entrustment, "[a] party in control of a vehicle or other instrumentality may be held liable for damages resulting from the use of that instrumentality when it is supplied or entrusted to someone who is intoxicated or otherwise incompetent." Consent to relinquish control of the instrumentality is a necessary element of a negligent entrustment claim.
Parrilla v. King County, 138 Wn. App. 427, 441, 157 P.3d 879 (2007).
Parrilla, 138 Wn. App. at 441.
Pace contends that he established negligent entrustment by facts showing that James had previously admonished Scott not to engage in "stupid actions" and that both he and Scott "were well aware that Tyler was capable of rambunctious behavior," yet James left the keys to the jet skis so that they were "easily accessible" to both Scott and Tyler. But as Davis contends, such facts do not establish negligent entrustment without a showing that James affirmatively consented to relinquish control of the jet ski to Scott at the time of the accident. While James did admit in his deposition that he was aware that they rode the jet skis in the morning of the accident, he also stated that he did not give either of them permission to use the jet skis later on in the day, when the accident occurred:
And then I said [to Scott and Tyler], "Hey, I don't want you guys riding those jet skis again today because there's going to be a lot of people here. It's going to be crazy. I just don't want you riding them."
And Scott got mad at me about it. I said, "Hey, it's my jet ski. You're not going to be riding them, period." — because of the holiday. Because of the people, there's a lot of traffic out there.
Pace points to no evidence in the record on summary judgment that refutes this or affirmatively establishes that Davis relinquished control to Scott at the time of the accident. While Pace contends that the credibility of James' statements creates an issue of fact, this is insufficient to defeat the summary judgment motion. Rather,
"[t]he party opposing summary judgment must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and that the opposing party may not merely recite the incantation, `Credibility,' and have a trial on the hope that a jury may disbelieve factually uncontested proof."
Laguna v. Washington State Dep't of Transp., 146 Wn. App. 260, 266-67, 192 P.3d 374 (2008) (quoting Howell v. Spokane and Inland Empire Blood Bank, 117 Wn.2d 619, 627, 818 P.2d 1056 (1991)).
Laguna v. Washington State Dep't of Transp., 146 Wn. App. 260, 266-67, 192 P.3d 374 (2008) (quoting Howell v. Spokane and Inland Empire Blood Bank, 117 Wn.2d 619, 627, 818 P.2d 1056 (1991)).
Pace's reliance on Cameron v. Downs is also misplaced. There, the court found a genuine issue of a material fact existed on a negligent entrustment claim when a van owner's daughter gave the keys to the van to her brother and a passenger in the van died when the brother struck a tree. But unlike here, the negligent entrustment claim in Cameron was brought against the daughter, not her father who was the owner of the van, and there was evidence that the daughter actually gave the keys to the brother, rather than simply making them accessible, as is the claim here.
32 Wn. App. 875, 650 P.2d 260 (1982).
Cameron, 32 Wn. App. at 877-78.
Pace next contends that the trial court erred by concluding as a matter of law that James was not vicariously liable for Scott's actions under an agency theory or the family car doctrine. We disagree.
"`Before the sins of an agent can be visited upon his principal, the agency must be first established.'" Thus, "[t]he threshold inquiry with regard to agency is the relationship between the parties." As our courts have recognized,
Barker v. Skagit Speedway, Inc., 119 Wn. App. 807, 814, 82 P.3d 244 (2003) (quoting Matsumura v. Eilert, 74 Wn.2d 362, 363, 444 P.2d 806 (1968)).
Barker, 119 Wn. App. at 814.
[u]nder Washington law, an agency relationship is created, either expressly or by implication, "when one party acts at the insistence of and, in some material degree, under the direction and control of another." Consent between the parties and control are the essential elements of an agency relationship. Control establishes agency only if the alleged principal controls the manner of performance.
Barker, 119 Wn. App. at 814 (internal citations omitted).
Barker, 119 Wn. App. at 814 (internal citations omitted).
"The existence of a principal-agent relationship is a question of fact unless the facts are undisputed." The burden of establishing the agency rests upon the party asserting its existence.
Uni-com Nw., Ltd. v. Argus Publ'g Co., 47 Wn. App. 787, 796, 737 P.2d 304 (1987).
Hewson Const., Inc. v. Reintree Corp., 101 Wn.2d 819, 823, 685 P.2d 1062 (1984).
Here, it was proved that James owned the jet ski involved in the accident but there was no evidence to establish that the person riding the jet ski that caused the accident was James' agent or acting within the scope of James' authority at the time of the accident. Even viewing the evidence in the light most favorable to Pace and presuming that Scott was the driver of the jet ski when it was involved in the accident, there was no evidence that his relationship to James was that of his "agent" or that he was otherwise acting on behalf of him or under his direction or control. Nor was there evidence of any agreement or consent to such a relationship. The only relationship established between James and Scott was a familial one, which alone is insufficient to establish agency for purposes of imputing liability.
See Pflugmacher v. Thomas, 34 Wn.2d 687, 690, 209 P.2d 443 (1949) (recognizing that parents are not responsible for torts of their children "solely on the ground of relationship").
Pace asserts that he is entitled to the presumption under Washington law that one driving the motor vehicle of another is acting as the vehicle owner's agent. "Where it is admitted or proved that the defendant owned the offending vehicle in a motor vehicle accident, it is presumed that the driver thereof was the defendant's agent or servant and that he was acting within the scope of his authority at the time of the accident." A defendant may overcome this presumption by the testimony of interested or disinterested witnesses, provided that the testimony is uncontradicted, unimpeached, clear and convincing.
Callen v. Coca-Cola Bottling, Inc., 50 Wn.2d 180, 182, 310 P.2d 236 (1957).
Callen, 50 Wn.2d at 182.
But as Davis points out, this presumption is limited to situations involving the use of automobiles and Pace cites no authority that requires its application here. Even if it applied to the use of jet skis, Davis rebutted the presumption with uncontradicted testimony by James that he explicitly told Scott that he did not have permission to use his jet skis at the time of the accident. Pace points to no specific facts to contradict James' testimony, but simply relies on speculation and mere possibility, which is insufficient to defeat summary judgment. Rather, the party opposing summary judgment must produce specific facts that rebut the movant's evidence and create a genuine issue of material fact. Pace failed to do so. Thus, summary judgment was proper.
See Bradley v. S.L. Savidge, Inc., 13 Wn.2d 28, 63, 123 P.2d 780 (1942) ("[W]e adhere to the rule that, when it is shown that a person owns an automobile concerned in an accident, it is presumed as an inference of fact that the driver was the agent of the owner and was acting within the scope of his authority.").
See Chamberlain v. State Dep't of Transp., 79 Wn. App. 212, 215-16, 901 P.2d 344 (1995).
See Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 736-37, 150 P.3d 633 (2007).
Pace also fails to establish that James was liable as a matter of law under the family car doctrine. As Davis notes, this doctrine is limited to the use of land motor vehicles and no Washington case has extended it to the use of jet skis. As the court explained in Pflugmacher v. Thomas, where it declined to extend the doctrine to bicycles:
Under this doctrine, "an owner of an automobile becomes liable for damage done by it while being used by members of his family, with either his express or implied consent, for business of such family, or for pleasure." McGinn v. Kimmel, 36 Wn.2d 786, 788, 221 P.2d 467 (1950).
In considering the question presented, we start with the basic rule that parents are not responsible for the torts of their minor children solely on the ground of relationship (subject to exceptions not material here). The liability, if any exists, must rest in the relation of agency or service.
We have heretofore pointed out that the record does not show the conventional relationship of either master and servant or principal and agent, and in order to hold appellants liable it would be necessary to extend the relationship of principal and agent to them and their minor son. The doctrine is an extension of the rules of agency to a situation where public policy demanded relief to injured persons caused by the negligent operation of automobiles by members of families.
34 Wn.2d 687, 691, 209 P.2d 443 (1949) (internal citations omitted).
34 Wn.2d 687, 691, 209 P.2d 443 (1949) (internal citations omitted).
The court further recognized that this policy decision addresses the unique situation presented by automobile use and has therefore been limited to those situations unless the legislature determines otherwise:
Although it may appear quite logical from a legal standpoint to say that the doctrine should be extended to a bicycle furnished by parents for the use and enjoyment of their minor child, we cannot overlook the fact that the courts in the automobile cases were being confronted with an alarming situation and an increasing social problem demanding solution. Rules which had been pronounced by the courts in the past with reference to the relationships of master and servant and principal and agent seemed to stand in the way of the promotion of justice, as viewed by preponderant judicial opinion. It would not do to say that the courts which had promulgated such rules were so lacking in power they could not extend them to meet such a situation. But necessarily the courts must proceed cautiously and recognize limitations, and if the reasons for extending the application of any established rule do not exist, then such extension should not be made by the courts, but left to the legislature.
Pflugmacher, 34 Wn.2d at 691.
Pflugmacher, 34 Wn.2d at 691.
Additionally, as Davis notes, even if the family car doctrine were extended to the use of jet skis, it still would not apply here because Scott does not reside in the same household as James and is therefore not a member of the family within the meaning of the doctrine.
See McGinn, 36 Wn.2d at 789 ("[W]hen a child leaves the family circle and establishes a home of his own, he ceases to be a member of the family within the meaning of the family purpose doctrine, and when he uses his parents' automobile with their consent and for his own pleasure, he is a borrower of it and not an agent.").
Pace next challenges the trial court's ruling granting summary judgment for Tyler, asserting that there were issues of material fact about Tyler's involvement in the accident. He points to Tyler's admission that he had used a jet ski that day which had some yellow detailing, and notes that Tyler's explanation of his whereabouts during the incident conflicted with the statements of his grandmother, Carol Davis, about his whereabouts at the time.
Davis first notes that these facts were not before the court on summary judgment, but were later presented during the trial against Scott and should not be considered on appeal of the summary judgment. A review of the record indicates that in response to the summary judgment motion, Pace cited to Tyler's deposition in which he admitted to riding one of James' jet skis the morning of the accident, but the actual transcript of the deposition does not appear to be part of the materials he submitted with his motion. Nor does the record indicate that the deposition of Carol Davis was submitted in support of Pace's opposition to the summary judgment. Rather, as Davis notes, these depositions are part of the record as published during the trial of Scott. Thus, we do not consider this evidence on appeal because it was not before the trial court on the summary judgment motion.
See RAP 9.12; CR 56(c) (evidence not brought to the attention of the trial court and not on file at the time of summary judgment may not be considered).
Nonetheless, such facts were not sufficient to establish that the jet ski Tyler admitted to using in the morning was the same one involved in the accident or that Tyler was the person riding one of the jet skis involved in the accident. While Tyler admitted to riding a jet ski with yellow detailing the morning of the accident, the only evidence in the record connecting that jet ski to the accident was Pace's recollection that he saw something yellow on one of the jet skis involved. But there is still no evidence to establish that Tyler was the person riding that jet ski at that time of the accident. Neither Pace nor any of his companions were able to identify the jet skiers involved except for Scott. Thus, Pace simply relies on speculation or mere possibility to counter Tyler's testimony that he was not involved in the accident, which, as discussed above, is insufficient to create an issue of material fact to defeat summary judgment. The trial court properly concluded that there were insufficient facts to establish Tyler's involvement in the accident.
Indeed, as Davis points out, the facts before the court on summary judgment were Pace's statements that he saw something yellow on the jet ski that cut him off, which was not the one he alleged Tyler was riding.
II. Trial Issues
Pace further claims that the trial court made several errors during the jury trial against Scott. We disagree.
Pace first challenges the trial court's refusal to give his proposed jury instructions on the statutory standard of care for vessel operation. Those instructions stated:
A statute provides that:
A person shall not operate a vessel in a negligent manner. To "operate in a negligent manner" means operating a vessel in disregard of careful and prudent operation, or in disregard of careful and prudent rates of speed that are no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, size of the lake or body of water, freedom from obstruction to view ahead, effects of vessel wake, and so as not to unduly or unreasonably endanger life, limb, property or other rights of any person entitled to the use of such waters.
Plaintiff's proposed instruction no. 13, citing RCWA 79A.60.030.
Plaintiff's proposed instruction no. 13, citing RCWA 79A.60.030.
. . . .
A statute provides that:
The violation, if any, of a statute is not necessarily negligence, but may be considered by you as evidence in determining negligence.
The trial court instead gave the following instructions:
Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances.
. . . .
Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances. . . . .
. . . .
Every person has a duty to see what would be seen by a person exercising ordinary care.
We review a trial court's refusal to give an instruction for an abuse of discretion. "Instructions are sufficient if they permit a party to argue his or her theory of the case, are not misleading, and, when read as a whole, properly inform the jury on the applicable law." The trial court has considerable discretion to determine how its instructions will be worded and how many instructions are necessary to fairly present each litigant's theories. "While it is proper for the court to instruct the jury in the language of a statute, it is not required to do so."
Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996).
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662, 935 P.2d 555 (1997).
State v. Reay, 61 Wn. App. 141, 147, 810 P.2d 512 (1991).
Reay, 61 Wn. App. at 147.
Pace fails to show that the trial court abused its discretion by declining to include his proposed instruction. As the trial court pointed out, the additional instructions were unnecessary, particularly since Scott acknowledged that if he were the driver, he drove negligently. Thus, the issue at trial was not whether the jet ski driver who injured Pace was negligent, but whether Scott was that driver. The court's instructions therefore sufficiently stated the applicable law on the negligence claim and allowed Pace to argue his theory of the case.
Pace next contends the trial court's response to a jury question was an improper comment on the evidence. The jury question was as follows:
"In regards to Instruction #7 and for further clarification, does any negligence on the part of Tyler Davis constitute negligence on the part of Scott Davis, as his parent?"
The court called counsel for both parties to inform them about the question and that the court's intention was to answer, "No." Defense counsel agreed with the court's answer, but Pace's counsel requested that the court respond that the jury is to read the instructions. The court proceeded to answer the question by responding, "No."
Pace contends that the court's answer was an impermissible comment on the evidence. We disagree. "Judges shall not charge juries with respect to matter of fact, nor comment thereon, but shall declare the law." The court's answer did not comment on or even relate to the facts or evidence presented. Rather, the question posed was a purely legal one, i.e., whether Tyler's negligence is imputed to Scott because he is the parent. Because questions of law are precisely within the province of the court, the trial court did not err by addressing this question.
Wash. Const. art. IV, § 16.
Pace also challenges the trial court's handling of a juror inquiry about whether another witness would be recalled, contending that the trial court imposed an overly restrictive view of what amounts to a clarifying question from the jury. The question was submitted after the testimony of two of Pace's witnesses, Sean Putnam and Trevor Korn, the two companions with Pace on the boat during the accident. The juror asked the court if Putnam could be recalled as a witness and the court responded, "It's not a clarifying question. I'm not inclined to answer it, other than to tell the jurors, once again, that the questions are to be of a clarifying nature, and their opportunity is when the witness is here, not after the witness leaves." Pace's attorney agreed, stating, "That would seem most prudent." The court then advised the jurors that this was not the type of question they could submit and explained what is meant by a "clarifying" question that would be permissible to ask.
As Davis contends, Pace has failed to properly preserve for review any claimed error in the court's handling of this juror question. Not only did Pace fail to object to the trial court's response, but his attorney affirmatively agreed with it. While he later raised it in a motion for new trial, this was still not timely to preserve the issue. He has therefore waived any objection on appeal and we decline to consider this claim.
See Sherman v. Mobbs, 55 Wn.2d 202, 207, 347 P.2d 189 (1959) ("Counsel cannot, in the trial of a case, remain silent as to claimed errors, and later, if the verdict is adverse, urge his trial objections for the first time in his motion for a new trial, or on appeal.").
See RAP 2.5(a) ("The appellate court may refuse to review any claim of error which was not raised in the trial court.").
III. Motion to Strike
We also consider Davis' motion to strike an appendix to Pace's reply brief. The appendix is a document entitled "Recreational Boating Statistics 2008" that Pace relies on in support of his argument that the family car doctrine should apply to watercraft. As Davis notes, this was not submitted to the trial court as part of the summary judgment proceedings. Accordingly, it is not properly before us on appellate review and we grant the motion to strike.
The motion was referred to the panel as ordered by the Commissioner's ruling on October 29, 2010.
RAP 9.12 ("On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court."); Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 173 n. 4, 736 P.2d 249 (1987) ("On appeal of a summary judgment order we cannot consider evidence not before the trial court.").
We affirm.
WE CONCUR: