Ronald Kevin Adams v. Boulevard Auto Rentals, D/B/A Rent-A-Wreck of Dallas and Gabriel Hewitt

IN THE TENTH COURT OF APPEALS No. 10-02-00300-CV Ronald Kevin Adams, et al., Appellants v. Boulevard Auto Rentals, d/b/a Rent-A-Wreck of Dallas, Appellees From the 13th District Court Navarro County, Texas Trial Court # 00-00-10076-CV MEMORANDUM Opinion A trial court granted Boulevard Auto Rental's motion for summary judgment in Appellants' negligent entrustment suit. Because the person driving the vehicle on the occasion in question was not the person to whom Boulevard entrusted the vehicle, we affirm. BACKGROUND After calling several rental establishments in Dallas, Katrina Weaver, Gabriel Hewitt, and eight other friends found a company that would rent them a van: Boulevard Auto Rentals d/b/a Rent-A-Wreck. Weaver went to Boulevard and signed a rental agreement for a seventeen-passenger van. Thereupon, Weaver drove her friends to Houston in the van. After an all-night "rave party" at the Astrodome, Hewitt drove the group back to Dallas the next morning. On the way, Hewitt fell asleep at the wheel and lost control of the van. The van flipped several times causing serious injury to the passengers. The passengers (Appellants) filed a lawsuit against Boulevard and Hewitt alleging negligent entrustment as to Boulevard and negligence and gross negligence as to Hewitt. Boulevard filed a traditional motion for summary judgment. The trial court granted Boulevard's motion for summary judgment and severed Appellant's claims against Boulevard from their claims against Hewitt. Appellants argue that the trial court erred in granting Boulevard's motion for summary judgment because (1) negligent entrustment encompasses acts of negligence other than the act of negligent driving, and (2) Boulevard did not prove lack of causation as a matter of law. STANDARD OF REVIEW We review the decision to grant or deny a summary judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.—Waco 2000, pet. denied). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245, 249 (Tex. App.—Waco 2001, pet. denied) (quoting Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)). The standard of review for a traditional summary judgment is well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., Inc., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Grinnell, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. To prevail under a negligent entrustment theory, the plaintiff must prove: (1) the entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) whom the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver's negligence proximately caused the accident. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). Boulevard argues that Appellants cannot prevail on their claim because the driver to whom Boulevard entrusted the van (Weaver) was not the driver at the time the accident occurred (Hewitt). Boulevard states that they entrusted the van to Weaver because she was twenty-one and possessed a valid driver's license. Therefore, the entrustment to Weaver was not a proximate cause of the accident because Weaver was not driving the van when it occurred. Stated another way, Boulevard argues that in order to prevail on a claim of negligent entrustment, the driver entrusted with the vehicle (the entrustee) must be the same driver operating the vehicle at the time of the accident. Appellants acknowledge that Weaver was not driving the van at the time of the accident but argue that the entrustee's negligence need not be limited to the act of driving. They argue that Weaver was negligent in letting Hewitt drive and that Boulevard should be held responsible because it could have foreseen that Weaver would have allowed others beside herself to drive the van. Essentially, Appellants argue that Boulevard should be held liable because it was foreseeable that Weaver would entrust the van to an unlicensed, incompetent, or reckless driver. Appellants rely upon Emmons to support their claim that the entrustee does not have to be the negligent driver of the vehicle in order to hold the owner responsible. North American Van Lines v. Emmons, 50 S.W.3d 103 (Tex. App.—Beaumont 2001, pet. denied). In their recitation of the facts of that case, Appellants state that Lufkin Moving rented a truck to North American Van Lines (NAVL). Subsequently, NAVL allowed an unlicensed driver named Cartagena to drive, and Cartagena's negligence caused an accident. A jury found all three defendant's liable, and the Ninth Court of Appeals affirmed the trial court's ruling. Appellant's claim that because the renter of the van (NAVL) was not the driver of the van, Emmons mirrors the facts of the present case. However, we read the facts of Emmons differently. Lufkin Moving rented its services to NAVL, which included providing a truck and a driver. Id. at 112-13. Lufkin hired Cartagena knowing that he was not licensed. Id. When Lufkin presented NAVL with its contract, the name of the driver was left blank. Id. The jury found Lufkin responsible for Cartagena's negligence under a respondeat superior theory. Id. NAVL was found by the jury to have the right of control to supervise its agent, Lufkin, in its hiring procedures; therefore, NAVL was similarly responsible for Lufkin's negligent hiring of Cartagena as Cartagena's statutory employer. Id. Appellant's reliance on Emmons is misplaced because this case does not stand for the proposition that an owner may be held liable for negligent entrustment when the entrustee is not the negligent driver of the vehicle. On the other hand, the facts of the present case directly follow the facts in Schneider. In that case, Esperanza Transmission Company entrusted a truck to Havelka for business and personal use. Upon leaving a dance, Havelka asked his friend Schroeder to drive Havelka's truck. Schroeder agreed and later collided with Schneider's vehicle. Schneider sued Esperanza claiming that it negligently entrusted the truck to Havelka and that this proximately caused the accident. Schneider, 744 S.W.2d at 596. Schneider's argument to the Texas Supreme Court is similar to that of Appellants. Schneider argued that [W]hen the owner of a vehicle permits an incompetent or reckless driver to use his vehicle, he creates a dangerous instrumentality and his action sets in motion the chain of events that follow….[He further argues that] by proving Havelka was negligent in turning the vehicle over to Schroeder, he proved that Havelka was negligent in the operation of the truck and proximately caused the accident. Id. The Texas Supreme Court, however, did not agree with Schneider. They stated that in negligent entrustment cases, the owner should be shown to be reasonably able to anticipate that an injury would result as a natural and probable consequence of the entrustment. Id. The risk Esperanza took at the time of the entrustment was based upon Havelka's driving record, and the probable consequence of this risk would be due to Havelka's driving. Id. Esperanza assessed the risk as to Havelka, and not as to Schroeder, therefore the Court found that Esperanza's entrustment to Havelka was not the proximate cause of the accident. Id. at 597. Other more recent holdings have agreed with this decision. Roach v. Dental Arts Laboratory, Inc., 79 S.W.3d 265, 269 (Tex. App.—Beaumont 2002, pet. denied) (holding that it was not foreseeable to the owner that the entrustee would loan the car to another); Martin v. Avis Rent-A-Car System, Inc., 932 S.W.2d 697, 699 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (holding that because the entrustee was not driving at the time of the accident, the appellants could not prove negligent entrustment); Frito-Lay, Inc. v. Queen, 873 S.W.2d 85, 86-87 (Tex. App.—San Antonio 1994, writ denied) (stating that "[i]mplicit in [the negligent entrustment] criteria is that the driver to whom the vehicle was entrusted [is] the same driver whose negligence proximately caused the accident," and holding that there was no evidence of proximate cause because the entrustee was not the driver of the vehicle). We agree with these holdings. Therefore, because it is undisputed that Weaver as the entrustee was not the driver of the vehicle at the time of the accident, Boulevard conclusively established that its entrustment of the van to Weaver was not a proximate cause of the accident. Schneider, 744 S.W.2d at 597; Martin, 932 S.W.2d at 699. Accordingly, the trial court did not err in granting Boulevard's motion for summary judgment. We overrule Appellant's first and second issues. CONCLUSION Having overruled all of Appellants' issues, we affirm the judgment of the trial court. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed September 15, 2004 [CV06]