The Dolan Law Firm, Christopher B. Dolan and Jeremy M. Jessup, San Francisco; Law Office of J. Michael Brown, J. Michael Brown, Pleasanton, for Plaintiffs and Respondents. Samuelson, Wilson & Roe, Charles R. Roe, San Jose, for Defendant and Appellant David Richard Harris.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A.4., B., and C. of the Discussion.
The Dolan Law Firm, Christopher B. Dolan and Jeremy M. Jessup, San Francisco; Law Office of J. Michael Brown, J. Michael Brown, Pleasanton, for Plaintiffs and Respondents.
Samuelson, Wilson & Roe, Charles R. Roe, San Jose, for Defendant and Appellant David Richard Harris.
BURNS, J. In this wrongful death action arising from a motor vehicle collision, the decedents' survivors sued John Harris, and John's father, David Richard Harris, who co-owned the truck John was driving. David appeals from the judgment entered against him, after the jury found him liable on a negligent entrustment theory. We affirm.
We use first names for clarity when referring to individual members of the Harris family.
On November 7, 2011, John suffered a seizure while driving a Toyota Tacoma truck and struck a car occupied by Ellie Pirdavari and Mahin Dowlati. Pirdavari and Dowlati were killed. It was stipulated that, as a result of his seizure, John was unable to brake or steer; that he was negligent; and that his operation of the truck was the sole cause of the collision.
The truck John drove was jointly owned by John and David. When they purchased the truck, in 2005, John was 26 years old. He paid the down payment, and David co-signed the loan. Before the loan was paid off, in 2009, David made some of the payments. The truck was registered in both John's and David's names. David paid for its insurance and registration. However, John had sole possession of the keys and was the only driver. David was aware, by no later than June 2011, that John suffered from a seizure disorder. In particular, David knew that John suffered a grand mal seizure, in June 2011 on a Bay Area Rapid Transit (BART) train, and that John lost consciousness and control of his body and was taken to the hospital. Within days thereafter, David researched grand mal seizures and learned such seizures could involve lost control and an epileptic fit for a period of time. On July 30, 2011, John suffered a second grand mal seizure on a BART train.
David testified he did not know if John continued to drive after the June 2011 seizure but believed it was possible. David took no action to dissuade John from driving, such as canceling the Tacoma's insurance. David considered removing himself from the registration in 2009 to avoid being accountable for John's use of the truck, but he did not follow through.
The decedents' survivors, Mo Ghezavat, Shadeh Ghezavat, Ali Ghezavat, Haleh Pirdavari, and Leila Pirdavari (collectively, Plaintiffs) sued John and David for negligence. As to David, the Plaintiffs' theory of liability was negligent entrustment of the jointly owned Tacoma. Returning special verdicts, the jury found David knew or should have known that John was "incompetent or unfit to drive"; that David permitted John to drive the Tacoma; and that David's permitting John to drive the Tacoma was a substantial factor in causing Pirdavari's and Dowlati's deaths. The jury allocated 90 percent of fault to John and 10 percent to David. The trial court entered a judgment in Plaintiffs' favor against David for $388,400.
David challenges the trial court's jury instruction regarding negligent entrustment, contending the trial court erred by denying his requests to supplement Judicial Council of California Civil Jury Instructions ( CACI) No. 724. We disagree.
We review jury instructions de novo. ( Mize-Kurzman v. Marin Cmty. College Dist. (2012) 202 Cal.App.4th 832, 845, 136 Cal.Rptr.3d 259.) "A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572, 34 Cal.Rptr.2d 607, 882 P.2d 298.) However, " ‘[i]nstructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition [citations.]’ " ( Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217, 87 Cal.Rptr.3d 556.) A trial court may refuse to give a requested instruction if the subject matter is adequately covered by the other instructions. ( Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11, 23 Cal.Rptr.2d 131, 858 P.2d 598.)
Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. ( Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 862-863, 32 Cal.Rptr.3d 351.) In cases involving negligent entrustment of a vehicle, liability " ‘is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver.’ " ( Syah v. Johnson (1966) 247 Cal.App.2d 534, 539, 55 Cal.Rptr. 741 (italics omitted), disapproved on another ground by Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1159, fn. 1, 126 Cal.Rptr.3d 443, 253 P.3d 535 ; accord, Mettelka v. Superior Court (1985) 173 Cal.App.3d 1245, 1248, 219 Cal.Rptr. 697 ( Mettelka ).) " ‘Liability for the negligence of the incompetent driver to whom an automobile is entrusted does 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.’ " ( Syah , at p. 539, 55 Cal.Rptr. 741 ; accord, Rest. 2nd Torts, § 308 ["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"].)
The jury was given CACI No. 724 (omitting the element of the driver's negligence because the parties stipulated that John was negligent): "Plaintiffs ... claim that [Pirdavari] and [Dowlati] were harmed because [David] negligently permitted [John] to use [David]'s vehicle. To establish this claim, plaintiffs must prove all of the following: That [David] was an owner of the vehicle operated by [John]; that [David] knew or should have known, that [John] was incompetent or unfit to drive the vehicle; that [David] permitted [John] to drive the vehicle; and, that [John] was incompetent or unfit to drive was [sic ] a substantial factor in causing harm to [Pirdavari] and [Dowlati]." (Italics added.) David requested four supplemental special instructions, which the trial court rejected, concluding CACI No. 724 was sufficient. 3.
David argues that CACI No. 724 does not adequately define "permitted" and necessitated supplemental instruction making clear that, in order to be liable, David must have had the power to deny John the use of the Tacoma. We conclude CACI No. 724 adequately covered the point.
David's first proposed special instruction reads: "In order for you to find that [David] permitted [John] to drive the Toyota Tacoma at the time of the accident, you must find that [David] had power over the use of the Toyota Tacoma by [John] and that [John] drove the Toyota Tacoma at the time of the accident with the express or implied consent of [David.]" David also requested a second proposed special instruction: "When determining whether [David] controlled [John's] use of the vehicle involved in the accident, you must determine whether [John] was entitled to possess the vehicle at the time of the accident only by the consent of [David] and that [David] had a reason to believe that by withholding consent, he could prevent [John] from using the vehicle." After the jury began deliberating and requested a definition of "permit" as used in the special verdict's second question, David renewed his request for his first proposed special instruction. However, the trial court again determined further definition was not required.
David contends his first proposed instruction follows the law as described in Mettelka, supra , 173 Cal.App.3d 1245, 219 Cal.Rptr. 697. The Mettelka court allowed amendment of a complaint to allege negligent entrustment against a car's co-owner. ( Id. at pp. 1246-1247, 1250, 219 Cal.Rptr. 697.) The plaintiff alleged a father jointly owned a car with his driving son, lived with his son, and facilitated the son's use of the car " ‘by providing funds to purchase and maintain the vehicle and the insurance.’ " ( Id. at p. 1247, 219 Cal.Rptr. 697.) The plaintiff also alleged the father " ‘ had actual power over the use of the vehicle by [his son]," that the son operated it with his father's express or implied permission, and that the father knew his son was an unsafe driver. ( Ibid. )
The Mettelka court rejected the father's argument that a negligent entrustment cause of action is barred in the co-ownership situation "because both co-owners had the right to use the vehicle" and "neither needed permission from the other to use it." ( Mettelka, supra , 173 Cal.App.3d at pp. 1248-1250, 219 Cal.Rptr. 697.) The court explained: "[T]he mere fact of co-ownership does not prevent one co-owner from controlling use of the vehicle by the other co-owner. Thus, where ... plaintiff alleges that one co-owner had power over the use of the vehicle by the other and that the negligent co-owner drove with the express or implied consent of such controlling co-owner, who knew of the driver's incompetence, the basis for a cause of action for negligent entrustment has been stated." ( Id. at p. 1250, 219 Cal.Rptr. 697.) Mettelka, supra , 173 Cal.App.3d at pages 1249 and 1250, 219 Cal.Rptr. 697, relied on Krum v. Malloy (1943) 22 Cal.2d 132, 137 P.2d 18, in which our Supreme Court stated: "It is true that the power to permit is the correlative of the power to forbid [citation], and that each owner of property in common is entitled to possess and use the whole property [citation]. It is also true that the possession of one co-owner is regarded as possession for all [citation], but none is entitled to a possession or usage which excludes for any period of time a like possession or usage by his co-owners [citations].... A co-owner, therefore, of an automobile, who desired its exclusive possession and usage for a time, would need the permission, express or implied, of his co-owners to that end." ( Krum, supra , 22 Cal.2d at p. 135, 137 P.2d 18, italics added.) "In the absence of other evidence upon the issue, an inference normally would arise, upon proof of co-ownership and use of personal property by one co-owner, that such usage was lawful and with the consent of the absent co-owner, but this inference would not be conclusive.... It would scarcely be a reasonable inference (from evidence showing merely the fact of co-ownership and a single, isolated usage) that one co-owner of an automobile had consented to the operation of the common property by another co-owner who did not possess an operator's license, or who was a four-year-old infant, a known imbecile, a prisoner who had escaped without the knowledge of the co-owner, or utterly blind. In other words, it is a question of fact in cases of co-ownership, as it is in cases of single ownership, whether the operation of an automobile is with or without the consent , express or implied, of an owner who is not personally participating in such operation." ( Id. at pp. 135-136, 137 P.2d 18, italics added.)
Krum and Mettelka make clear that "the power to permit is the correlative of the power to forbid. " ( Krum, supra , 22 Cal.2d at p. 135, 137 P.2d 18 ; Mettelka, supra , 173 Cal.App.3d at p. 1249, 219 Cal.Rptr. 697.) CACI No. 724 adequately explained to the jury that David was not liable for negligent entrustment if David did not permit John's use. No further clarification was required. The trial court properly refused to give David's special instructions because they are argumentative and unduly emphasize his theory of the case. David's counsel appropriately argued to the jury that "[t]o permit something you have to have the ability to say ‘no’ " and that David had no power to forbid or control John's use of the Tacoma. But neither Mettelka nor Krum compelled the trial court to give the special instructions David proposed.
See footnote *, ante .
See footnote *, ante .
The judgment is affirmed. Plaintiffs are entitled to their costs on appeal.
JONES, P. J.