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HomeMy WebLinkAbout2004-4331 Civil SELINAD. RAMSEY, Parent and Natural Guardian of Santana D. and Troy H. Ramsey, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. AMY BARNETTE, Defendant v. DUAINE RAMSEY and TRICIA STOUGHTON, Additional Defendants NO. 04-4331 CIVIL ACTION IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND EBERT. J. ORDER OF COURT AND NOW, this 3rd day of April, 2007, upon consideration of the Motion for Summary Judgment by Defendant Amy Barnette and all responses thereto, IT IS HEREBY ORDERED AND DIRECTED that Defendant's Motion for Summary Judgment on the count of Negligence per se is DENIED and that Defendant's Motion for Summary Judgment on the count of Vicarious Liability through a Joint Venture is GRANTED. By the Court, M. L. Ebert, Jr., 1. Jan G. Sulcove, Esq. J.D. No. 09837 82 West Queen St. Chambersburg, P A 17201 Counsel for Plaintiffs Kevin D. Rauch, Esquire I.D. #83058 Summers, McDonnell, Hudock, Guthrie & Skeel 1017 Mumma Road Lemoyne, P A 17043 Counsel for the Defendant Amy Barnette Brigid Q. Alford, Esquire Supreme Court I.D. #38590 Boswell, Tinter, Piccola & Alford 315 N. Front St., P.O. Box 741 Harrisburg, PA 17108-0741 Counsel for Additional Defendant Duaine Ramsey John R. Ninosky, Esquire I.D. # 78000 Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Counsel for Additional Defendant Trisha Stoughton 2 SELINA D. RAMSEY, Parent and Natural Guardian of Santana D. and Troy H. Ramsey, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. AMY BARNETTE, Defendant v. DUAINE RAMSEY and TRICIA STOUGHTON, Additional Defendants NO. 04-4331 CIVIL ACTION IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION and ORDER OF COURT EBERT, 1., April 3, 2007 - Plaintiff Selina Ramsey, mother of Plaintiffs Santana and Troy Ramsey and ex-wife of Additional Defendant Duaine Ramsey, filed suit against Defendant Amy Jo Barnette seeking compensation for her children's injuries. The current counts against Barnette include: (1) Negligence per se for permitting Duaine Ramsey to operate the vehicle without a functioning speedometer or front passenger seatbelt, and (2) vicarious liability through a joint venture.l Barnette now asks this Court to grant her Motion for Summary Judgment on these two remaining counts. Having considered the facts in light of the applicable law, this Court denies Defendant Barnette's Motion for Summary Judgment on the count of negligence per se and grants Defendant Barnette's Motion for Summary Judgment on the count of vicarious liability through a joint venture. 1 On July 24, 2006, this Court granted sunnnary judgment to both Amy Barnette and Trisha Stoughton for a count of negligent entrustment. See Order of Court, filed July 24, 2006. STATEMENT OF FACTS The sequential facts of this case are not in dispute. On October 5, 2002, minor Plaintiffs Santana and Troy Ramsey were riding in the car with their father, Additional Defendant Duaine Ramsey, in a Volkswagen Fox2 owned at the time by Defendant Amy Barnette.3 Mr. Ramsey had been inspecting/test-driving the vehicle and was in route to his girlfriend's, Additional Defendant Trisha Stoughton, home. During the drive, Mr. Ramsey struck a deer in the roadway. Ramsey lost control of the vehicle and ran the car off the road and into a tree. (Plaintiffs contend that Duaine Ramsey was intoxicated and drinking while driving.)4 The crash resulted in injuries to the minor Plaintiffs, especially to Santana Ramsey, who was sitting in the front seat.s Santana was not wearing a seatbelt during the accident, allegedly because the front seatbelt did not function. 6 Barnette was apparently in the midst of negotiations to sell the car to Mr. Ramsey and was not in the car at the time of the accident. Barnette testified at depositions that she was not sure if the passenger side seatbelts worked as she had only ever driven the car and had never sat in the passenger seat while the vehicle was in motion. She further stated that she had never carried any passengers in the car, so she was unaware of the functionality of any of the seatbelts other than the driver's, which did function properly.7 Ms. Barnette also testified that, to her knowledge, both the speedometer and the headlights were in working order and the inspection was current. 8 2 Plaintiffs' Brief in Response to Defendant, Amy Barnette's Motion for Summary Judgment, Ex. A. 3 See Oral Deposition of Amy Barnette (Hereinafter "Barnette Dep. _") at 9, Jan. 30,2006, Plaintiffs' Brief in Response to Defendant, Amy Barnette's Motion for Summary Judgment, Ex. C. 4 Plaintiffs' Brief in Response to Defendant, Amy Barnette's Motion for Summary Judgment at 1-2. See also Defendant, Amy Barnette's Brief in Support of Motion for Summary Judgment at 1-2. 5 See Plaintiffs' Brief in Response to Defendant, Amy Barnette's Motion for Summary Judgment, Ex. B. 6 See Plaintiffs' Brief in Response to Defendant, Amy Barnette's Motion for Summary Judgment, Ex. A 7 Barnette Dep. 10 8 Barnette Dep. 9-10 2 Prior to the accident, Ms. Barnette had never met Mr. Ramsey nor even had a conversation with him.9 Rather, the arrangements regarding the car occurred through Mr. Ramsey's girlfriend, Trisha Stoughton, who was a friend of Ms. Barnette.lO In her Complaint to Join Additional Defendants, Barnette contends that, while she did give the keys of the car to Stoughton with instruction to allow Mr. Ramsey to inspect the vehicle for potential purchase, she gave specific instructions that no one was to operate the vehicle once the car had been driven by Stoughton to Stoughton's residence. Barnette alleges that Stoughton then gave Ramsey the keys and allowed him to operate the vehicle without limitation. 11 DISCUSSION Applicable Law: Summarv Judgment Pa.C.S.A. 1035.2 provides that, after the proper pleadings have occurred, a party may move for summary judgment in the following two instances: (1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. When a party seeks summary judgment, a court shall enter judgment whenever there are no genuine issues of material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Santorella v. Donegal Mut. Ins. Co., 905 A.2d 534, (Pa. Super. 2006). An issue is material, for purposes of a summary judgment motion, if its 9 Barnette Dep. 11 10 See Oral Deposition of Duaine Ramsey, Jan. 30,2006 at 18 & 24, Plaintiffs' Response to Defendant, Amy Barnette's Motion for Summary Judgment, Ex. B. 11 See Defendant Amy Barnette's Complaint to Join Additional Defendants, n 9-11. 3 resolution could affect the outcome of the case under the governing law. Farabaugh v. Pennsylvania Turnpike Com'n, 911 A.2d 1264, (Pa. 2006). Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); See also Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989) ("However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts," citing Reel v. Elder, citation omitted). The record must be reviewed in the light most favorable to the non-moving party, and all doubts as to the existence of genuine issues of material fact must be resolved against the moving party. Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 63 (Pa. Super. 2005). Summarv Judgment for Count 1: Negligence Per Se Plaintiff has accused Barnette of negligence per se in violation of 67 Pa. Code S 175.78(g).12 Pennsylvania recognizes that a violation of a statute or ordinance may serve as the basis for negligence per se. In order to prove a claim based on negligence per se, the following four requirements must be met: (1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) The statute or regulation must clearly apply to the conduct of the defendant; (3) The defendant must violate the statute or regulation; (4) The violation of the statute or regulation must be the proximate cause of the plaintiff s lllJunes. Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1059 (Pa.Super. 2003). 12 As it is clear that the Defendant should not escape the negligence per se issue through summary judgment, this opinion will only address the aspect of the seatbelts, though the allegations pertaining to the speedometer would follow a very similar analysis. It should be noted however that little to no evidence was provided by the Plaintiff to support the allegations of an improperly functioning speedometer and, in fact, Plaintiffs do not even mention the speedometer in their response. 4 Plaintiff alleges that Barnette violated 67 Pa. Code S 175.78(g), which requires that a vehicle be equipped with safety belts which operate properly. Plaintiffs theory suggests that, since Barnette owned and operated the subject vehicle without functioning safety belts, Barnette is guilty of negligence per se in allowing anyone to drive said vehicle. The two parties are at odds regarding the functionality of the seatbelts. Barnette has stated that she does not know if the passenger side seatbelts functioned properly. She further testified that the inspection was current and that the driver's side belts worked properly. Additional Defendant Ramsey testified that he "clicked and unclicked" the belts to see if they worked properly. 13 In contrast, minor Plaintiff Santana Ramsey, who was the last person to sit in the passenger seat, has sworn that the safety belts in the front seat would not engage14 and Additional Defendant Ramsey, who was driving at the time, does not deny Santana's statements. Without question, the functionality of the safety belts is material to the satisfaction of the elements of negligence per se - namely elements (3) and (4) regarding Defendant's violation of the ordinance and the causation of the injuries. If the mechanisms did work, Defendant would obviously be entitled to summary judgment, as she would have unquestionably complied with the statutory requirements and no prima facie case for negligence per se could be brought against her. However, it is unclear whether the safety belts functioned properly. Considering the type of damage done to Plaintiff Santana Ramsey's body as a result of the accident, it may be that, if Barnette was in violation of the statute, the poorly functioning seatbelt was the proximate cause of the injuries. IS Since the case itself hinges on the issue of the disputed facts as to the 13 See Oral Deposition of Duaine Ramsey, Jan. 30,2006 at 44, Defendant, Amy Barnette's Motion for Summary Judgment, Ex. B. 14 See Affidavit, June 30, 2006, Defendant, Amy Barnette's Motion for Summary Judgment, Ex. E. 15 Plaintiff Santana Ramsey has shown that, as a result of the accident, she was heavily injured by the windshield. It should be left to the jury to decide if this damage would have occurred had she been strapped in by a functioning belt. Since the functionality of the belt is yet to be accurately decided, it is at this time undeterminable as to whether the negligence under the statute was the proximate cause of the injuries 5 functionality of the seatbelts and causation, genuine issues of material fact still exists for the jury to decide. Defendant Barnette also argues that Plaintiffs have failed to produce evidence of permissive use of the vehicle by Ramsey and therefore cannot maintain their claims of negligence. Such a statement seems devoid of logic. Barnette knew that Ramsey, not Stoughton, was the person interested in buying the vehicle. Barnette gave the vehicle over to Stoughton in order that Ramsey might "inspect" the vehicle. Ramsey is a mechanic by trade. Yet, one need not be a mechanic to understand the prudence of test driving the vehicle before purchasing it. Barnette could not have been so naive to assume that Ramsey, an experienced mechanic, would not drive the vehicle before deciding to purchase it. In fact, she stated during her deposition that, "I knew he would have to drive it.. .,,16 Barnette further contends that she did not give Ramsey permission to drive the car on the day the accident occurred. However, she admits that she permitted Ramsey to keep the car for more than a week. She was most likely unaware as to when during this time period he would be "inspecting" the car. By letting him keep the car in his control, she was through implication giving him permission to continue his inspection. Accordingly, Defendant's Motion for Summary Judgment on the count of negligence per se should be denied. Summarv Judgment for Count II: Vicarious Liability through Joint Venture It is a long standing principle that a person is generally not liable for the negligent acts of another unless there is a special relationship between the two parties - such as that of a master and servant or principle and agent. Baier v. Glen Alden Coal Co., 200 A. 190 (Pa. Super. 1938); Miller v. Merritt & Co., 60 A. 508 (Pa.1905). For one to be subject to liability for harm resulting to a third person from the tortuous conduct of another, one must: (a) commit a tortuous act in 16 Barnette Dep. 15, Plaintiffs' Response to Defendant, Amy Barnette's Motion for Summary Judgment, Ex. A. 6 concert with the other or pursuant to a common design with him, or (b) know that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. Brandjord v. Hopper, 688 A.2d 721, 724 (Pa. Super. 1997). See also D'Errico v. DeFazio, 763 A.2d 424, 431 (Pa. Super. 2000) ("Imputed negligence, or vicarious liability, requires some relationship between A, who is negligent, and B, who is not, but who is charged with A's negligence toward C because of the relationship between A and B"). In conjunction with these principles, Plaintiffs now bring a count of vicarious liability through a joint venture against Defendant Amy Barnette. A joint venture is a relationship somewhat similar to that of a partnership. It is not a status established or imposed by law; it is a relationship voluntarily assumed and arising exclusively from contract. 2 Williston on Contracts 557, S 318A (3rd ed. 1959). Whether persons have engaged in such a venture must depend primarily upon their intention as expressed in their agreement and the construction they have placed upon it. "To constitute a joint venture, certain factors are essential: (1) each party to the venture must make a contribution, not necessarily of capital, but by way of services, skill, knowledge, materials or money; (2) profits must be shared among the parties; (3) there must be a 'joint proprietary interest and right of mutual control over the subject matter of the enterprise; (4) usually, there is a single business transaction rather than a general and continuous transaction." Wilkins v. Heebner, 480 A.2d 1141, 1145 (Pa. Super 1984); Snellbaker v. Herrmann, 462 A.2d 713, 716 (Pa. Super 1983), citing McRoberts v. Phelps, 391 Pa. 591, 599, 138 A.2d 439,443-444 (1958). It is unlikely that the relationship between Barnette and Ramsey constituted a joint venture. Certainly their relationship, be it ever so distant, constituted a contractual exploration with the hopes of achieving a mutual bargain. However, the law is clear that without evidence of a shared proprietary interest and right of control, there can be no joint venture. If proprietaryJ 7 control is vested in only one of two parties, the other may be an agent or an employee of the former, but there is no joint venture. Wilkins, 480 A.2d at 1145. In the case at bar Barnette retained full propriety interest in the vehicle which Ramsey was considering as a purchase. While at the time of the accident Ramsey had limited control of the vehicle for purposes of inspection, at no point has any evidence suggested that he acquired a propriety interest in the car. At most Ramsey had expressed an interest in the car and clearly retained the option of returning the car to Barnette - even if he had made an offer. Since the propriety control was vested in only one of the two parties, there is no joint venture to establish the parties' vicarious liability. Additionally, Pennsylvania jurisprudence dictates that the ownership of a vehicle cannot alone be the basis for liability for injuries caused by a third parties' negligence while driving the car, nor, will the owner be charged for negligence if, after he loans his vehicle to another, the latter becomes intoxicated. Washabaugh v. Fickes, 9 Adams L.J. 1, (Pa.Com.P1.1967). Here there is little to connect the two parties. The two never even talked or met. The mere fact that Barnette owned the car is insufficient to subject her to liability for Ramsey's negligence conduct in the car accident. If it had been established that Barnette knew that the car was defective and did not tell Ramsey, then she herself could potentially have been found negligent in not exercising the duty to inform Ramsey of the defective instruments. However, in this case she may not be found liable because of another's negligent acts because no joint venture, master/servant, or principle/agent relationship exists to warrant such a connection ofliability. 8 CONCLUSION Because genuine issues of material fact as to a necessary element of the cause of action remain on the count of negligence per se, this Court denies Defendant Barnette's Motion for Summary Judgment on the count of negligence per se. Because the Defendant has failed to establish that a joint venture exists between Barnette and Ramsey, this Court grants Barnette's Motion for Summary Judgment on the count of vicarious liability through a joint venture. Accordingly, the following order shall be entered: 9 ORDER OF COURT AND NOW, this 3rd day of April, 2007, upon consideration of the Motion for Summary Judgment by Defendant Amy Barnette and all responses thereto, IT IS HEREBY ORDERED AND DIRECTED that Defendant's Motion for Summary Judgment on the count of Negligence per se is DENIED and that Defendant's Motion for Summary Judgment on the count of Vicarious Liability through a Joint Venture is GRANTED. By the Court, M. L. Ebert, Jr., J. Jan G. Sulcove, Esq. I.D. No. 09837 82 West Queen St. Chambersburg, P A 17201 Counsel for Plaintiffs Kevin D. Rauch, Esquire I.D. #83058 Summers, McDonnell, Hudock, Guthrie & Skeel 1017 Mumma Road Lemoyne, P A 17043 Counsel for the Defendant Amy Barnette Brigid Q. Alford, Esquire Supreme Court I.D. #38590 Boswell, Tinter, Piccola & Alford 315 N. Front St., P.O. Box 741 Harrisburg, PA 17108-0741 Counsel for Additional Defendant Duaine Ramsey John R. Ninosky, Esquire I.D. # 78000 Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Counsel for Additional Defendant Trisha Stoughton 10