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HomeMy WebLinkAbout2005-1963 Civil JOEY HICKEY and NANCY HICKEY, INDIVIDUALLY AND AS HUSBAND AND WIFE, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SU ANN DIFFENBAUGH and BRIAN K. HIPPENSTEEL, DEFENDANTS 05-1963 CIVIL TERM IN RE: MOTION OF DEFENDANT BRIAN K. HIPPENSTEEL FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., June 1, 2006:-- Plaintiffs Joey Hickey and Nancy Hickey filed a complaint against defendants Su Ann Diffenbaugh and Brian K. Hippensteel. On March 4,2005, Joey Hickey was operating a vehicle in Mt. Holly Springs, Cumberland County, that was rear-ended by a Chevrolet driven by Su Ann Diffenbaugh and owned by Brian K. Hippensteel. Plaintiffs allege that at the time of the accident, Diffenbaugh was under the influence of alcohol in violation of the Vehicle Code at 75 PaC.S. Section 3802, and that Hippensteel knew that her operator's license was suspended. Plaintiffs brought a count against Su Ann Diffenbaugh in negligence,1 and a count against Hippensteel in which they allege: The aforesaid collision is the direct and proximate result of the 1 A default judgment has been entered against Diffenbaugh. 05-1963 CIVIL TERM Defendant Brian Hippensteel in allowing the Defendant Su Ann Diffenbaugh to operate the 1999 Chevrolet by: (a) Entrusting the motor vehicle to the Defendant Su Ann Diffenbaugh when he knew or should have known that Defendant Su Ann Diffenbaugh was incapable of operating the motor vehicle in a safe and lawful manner; (b) Entrusting the motor vehicle to the Defendant Su Ann Diffenbaugh when he knew or should have known that the Defendant Su Ann Diffenbaugh was an incompetent and unsafe driver; (c) Entrusting the motor vehicle to the Defendant Su Ann Diffenbaugh when he knew or should have known that the Defendant Su Ann Diffenbaugh would likely operate the vehicle in such a manner as to create an unreasonable risk of harm to other drivers on the roadway; (d) Entrusting the motor vehicle to the Defendant Su Ann Diffenbaugh when he knew or should have known that she had a suspended license at the time of the incident; (e) Entrusting the motor vehicle to Su Ann Diffenbaugh when he knew or should have known of her intoxicated state; (f) Allowing Su An [sic] Diffenbaugh access to his keys and vehicle when he knew of her suspended license and prior DUI conviction; (g) Allowing an unauthorized/unlicensed person, namely Su An [sic] Diffenbaugh, to drive his vehicle in violation of 75 Pa. C.S.A. S 1575 and applicable law. WHEREFORE, Plaintiff, Joey Hickey demands judgment against Defendant Brian Hippensteel, either individually andlor jointly, for the aforesaid damages in an amount in excess of the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest andlor damages for delay and costs of prosecution. (Emphasis added.) Hippensteel filed a motion for summary judgment that was briefed and argued on May 17, 2006. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . . . must view the record in the light most favorable to the non-moving -2- 05-1963 CIVIL TERM party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). Hippensteel maintains that summary judgment must be entered in his favor because there is insufficient evidence for plaintiffs to proceed against him. In Ferry v. Fisher, 709 A.2d 399 (Pa. Super. 1998), the Superior Court of Pennsylvania stated: Section 308 of The Restatement (Second) of Torts defines the tort of negligent entrustment, which has been adopted in this Commonwealth, as follows: S 308. Permitting Improper Persons to Use Things or Engage in Activities 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 or harm to others. Restatement (Second) of Torts S 308 (emphasis added); Christiansen v. Silfies, 446 Pa.Super. 464, 667 A.2d 396 (1995). Under a theory of negligent entrustment, liability is imposed upon a defendant because of his or her own actions in relation to the instrumentality or activity under his or her control. Silfies, 446 Pa.Super. at 472, 667 A.2d at 400. The entrustor's liability is not dependent on, derivative of, or imputed from the entrustee's actual liability for damages. Id,; see also Restatement (Second) of Torts S 308. The Vehicle Code at 75 Pa.C.S. Section 1574 provides: (a) General rule.--No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or -3- 05-1963 CIVIL TERM who is not licensed for the type or class of vehicle to be driven. (b) Penalty.--Any person violating the provisions of subsection (a) is guilty of a summary offense and shall be jointly and severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle. The Supreme Court of Pennsylvania in Shomo v. Scribe, 686 A.2d 1292 (Pa. 1996), held that for a vehicle owner to be held jointly and severally liable pursuant to Section 157 4(b), it must be proven that the owner "knew, or had reason to know at the time he entrusted his vehicle to another, that the driver he was authorizing or permitting to drive his vehicle was unlicensed." In Terwilliger v. Kitchen, 781 A.2d 1201 (Pa. Super. 2001), the Superior Court of Pennsylvania concluded: The language of section 157 4(b) indicates that one who violates the provisions of section 1574(a) is jointly and severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle. The legislative intent, however, has been interpreted to hold the owner of the vehicle vicariously liable for such damages. *** one who is vicariously liable is without fault, but is secondarily liable for the acts of a third person. The third person is primarily liable and the negligence of the third person is imputed to one who is held vicariously liable. Conversely, one who is jointly liability is directly liable since the acts of a joint tortfeasor contributed to the plaintiff's injuries. In the case sub judice, there is evidence that Diffenbaugh told a police officer who responded to the scene of the accident on March 4, 2005, that she lived with Brian Hippensteel and had been operating his Chevrolet with his permission. Hippensteel testified in a deposition that when he met Diffenbaugh in 2001, he learned that she did -4- 05-1963 CIVIL TERM not have a driver's license because it had been suspended as a result of two convictions for driving under the influence. Accordingly, there is sufficient evidence for plaintiffs to proceed on their claim to hold Hippensteel jointly liable under Section 1574(b) of the Vehicle Code. On the issue of whether there is sufficient evidence to proceed on the claim that Hippensteel is individually liable to plaintiffs, they point to the following. Kirk Mullen operates a towing business across the street from the development in which Hippensteel and Diffenbaugh live. He filed an Affidavit, stating that on at least two occasions within six months prior to the accident on March 4, 2005, he saw Diffenbaugh driving Hippensteel's Chevrolet in which Hippensteel was a passenger. Ed Dorsey, a neighbor of Hippensteel and Diffenbaugh, reported to an investigator for plaintiffs that he occasionally saw a female driving Hippensteel's vehicle. Jeremy Swartz, Diffenbaugh's former supervisor where she worked from 2004 until August 2005, told the investigator that although he is not one hundred percent sure, he recalls seeing Diffenbaugh driving to work in the Chevrolet on a few occasions. This evidence, coupled with Hippensteel's acknowledgment that he learned from Diffenbaugh in 2001 that she had two convictions for driving under the influence, is not sufficient evidence such that a jury, even if it concluded that he gave Diffenbaugh permission to operate his Chevrolet on March 4, 2005, could find that he knew or should have known that Diffenbaugh intended or was likely to use his Chevrolet or to conduct herself while driving the Chevrolet in such a manner as to create an -5- 05-1963 CIVIL TERM unreasonable risk of harm to others. Accordingly, the following order is entered. -6- 05-1963 CIVIL TERM ORDER OF COURT AND NOW, this day of June, 2006, IT IS ORDERED: (1) The motion of defendant, Brian K. Hippensteel, for summary judgment on plaintiffs' claim that he is jointly liable as a result of the accident on March 4, 2005, IS DENIED. (2) The motion of defendant, Brian K. Hippensteel, for summary judgment on plaintiffs' claim that he is individually liable as a result of the accident on March 4, 2005, IS GRANTED. By the Court, Edgar B. Bayley, J. Clark DeVere, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 For Plaintiffs John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 For Brian K. Hippensteel Su Ann Diffenbaugh, Pro se 65 East Locust Street Mt. Holly, PA 17065 :sal -7- JOEY HICKEY and NANCY HICKEY, INDIVIDUALLY AND AS HUSBAND AND WIFE, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SU ANN DIFFENBAUGH and BRIAN K. HIPPENSTEEL, DEFENDANTS 05-1963 CIVIL TERM IN RE: MOTION OF DEFENDANT BRIAN K. HIPPENSTEEL FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of June, 2006, IT IS ORDERED: (1) The motion of defendant, Brian K. Hippensteel, for summary judgment on plaintiffs' claim that he is jointly liable as a result of the accident on March 4, 2005, IS DENIED. (2) The motion of defendant, Brian K. Hippensteel, for summary judgment on plaintiffs' claim that he is individually liable as a result of the accident on March 4, 2005, IS GRANTED. By the Court, Edgar B. Bayley, J. 05-1963 CIVIL TERM Clark DeVere, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 For Plaintiffs John A. Statler, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 For Brian K. Hippensteel Su Ann Diffenbaugh, Pro se 65 East Locust Street Mt. Holly, PA 17065 :sal -2-