State of New York
Supreme Court : County of Monroe

Frank B. Iacovangelo, as Public Administrator
of the Estate of Maura A. Peters,
Plaintiff,

- against -

Index No. 2000/1123

-against-

Kevin E. Peters,
Third-party defendant.
_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Several motions for summary judgment have been made in this case, which arises out of a tragic accident in which defendant Matthew Peters, driving his parents' Ford Explorer, struck a vehicle driven by third-party defendant Kevin Peters. Mr. Peters's wife Maura was killed in the collision. Her estate is represented by the public administrator, because there is a claim that Mr. Peters was negligent along with Matthew Hoffman.

The plaintiff has moved for summary judgment on liability against Matthew Hoffman on simple negligence, and against his parents on theories of permissive use and negligent entrustment. The parents have opposed this motion and cross-moved for summary judgment, claiming that they have overcome the presumption of permissive use and that there is no evidence of negligent entrustment. Mr. Peters, as the third-party defendant, has moved to dismiss the plaintiff's claims for conscious pain and suffering, as do all of the Hoffman defendants.

The plaintiff's papers misrepresent the deposition testimony at numerous points, which severely weakens their argument. The plaintiff claims that Matthew (who had only a learner's permit) frequently drove the Ford Explorer in which he was driving at the time of the accident, that he was a child with substantial disciplinary and behavioral problems that meant he was likely to do what he was told not to do, and that his parents knew of this propensity and nonetheless left the keys to the Ford Explorer in the kitchen, where he and anyone else could reach them. On the night of the accident, plaintiff claims, Matthew put his parents on notice that he wanted to drive. They did nothing, and when he left late that night they did not check to see if the keys were missing or report the disappearance of the car.

Just about every point of this argument rests on a misrepresentation of the record. The uniform account of every person involved is that with one exception Matthew drove the Ford only when his parents were with him (Matthew Hoffman, 15). Before he obtained his learner's permit he had taken the car without permission, and was involved an accident (Matthew Hoffman, 18). His parents emphasized that he was not to do this. On the night of the accident in question the Ford was blocked by another of the family's cars, which was a stick-shift car and which Matthew could not drive. (The Ford was the only vehicle the Hoffmans owned with automatic transmission.) Unfortunately, this stratagem was unsuccessful, as Matthew was able to drive the Ford on the lawn, around the blocking car.

Because of problems with Matthew the parents had removed the keys from the kitchen rack where they had previously been storing them, in most cases keeping the keys on their person. The week before the accident, though, the Ford developed some mechanical problems, and Mr. Hoffman left the keys out because he intended to bring it in for repairs (Susan Hoffman, 18). He parked a stick-shift Honda Accord behind the Ford (loc. cit.).

On the night of the accident Matthew asked his father if they could go driving. This request was made around 11:00 pm, and Mr. Hoffman told his son that it was too late. Matthew spent some time on his computer, and spoke on the phone with his girlfriend Heather. He went out of the house to smoke a cigarette (smoking was not allowed inside the house) and then spoke with his mother. He remembers this as a fight. She does not, but says she was very sleepy. Matthew told her he was going out, and when she asked him why he told her he wanted another cigarette (Susan Hoffman, 24).

After dozing on the couch Mrs. Hoffman roused herself and realized Matthew was not home. She checked the computer space in the basement, looked outside and then spoke to her husband. They eventually discovered that the Ford was missing. This had not been obvious from the front because the shrubbery blocked their view of the driveway. About that time that they realized the Ford had been driven away they saw flashing red lights from the accident scene, which was not far from their house, and Mrs. Hoffman thought that the mechanical problems with the Ford had led to an accident (Susan Hoffman, 26).

There is clearly substantial evidence against the statutory presumption of permissive use. Matthew, of course, did not have actual permission to take the Ford. Whether or not there was constructive or implied permission is another matter. Although Matthew had driven without a parent in the vehicle once, he did not do so again, and thus the record does not establish a propensity to drive without permission. The Hoffmans' actions after Matthew left also do not establish awareness of any propensity to take the car.

Much would therefore rest on Matthew's supposed incorrigibility and his habit of doing the opposite of what he was told to do. There is no doubt that he was an extremely difficult child, and his contrariety is well attested. But the plaintiff's argument suggests that the Hoffmans could paradoxically be considered to have given implied permission to drive by forbidding it. This is hardly persuasive. Furthermore, it is simply untrue to argue that Matthew's 11:00 pm request to go driving with his father somehow put Mr. Hoffman "on notice" of his intention to drive the car without an adult driver present. Indeed, the fact that Matthew asked permission seems to argue just the opposite.

The defendants' arguments are weaker, though, as they concern the availability of the keys. They were unsure enough of Matthew's trustworthiness that they routinely kept the car keys on their person. While the Ford had developed mechanical problems in the week before the accident, both parents knew that the car could still be driven. (It appears that they planned to drive it to their mechanic.) They chose, however, to leave out the keys for the only car which they knew their son could drive.

Susan Hoffman has no liability under the permissive use doctrine, because she was not the title owner of the Ford, but there remains a question of fact as to Mr. Hoffman's liability. The burden is on the defendant to rebut the presumption of permissive use, and in that context especially the reasonableness of his conduct is a jury question. Summary judgment is therefore granted to Susan Hoffman, but the motion and cross-motion as to David Hoffman are denied.

The court adds that any evidence concerning the property settlement made by the insurance company is inadmissible on this issue. It is true, as Ms. Crain argued, that insurance companies are not willing to pay claims unless they conclude that their insured was liable. But the insurer's conclusions are entitled to no deference; the court is charged with resolving these issues itself. Any consideration of another fact finder's opinion would be a substantial retreat from this obligation.

The defendants are correct in their argument that there is insufficient evidence to support a cause of action in negligent entrustment. No presumption is operable here; instead, there must be affirmative evidence of the defendants' actual or constructive knowledge of an exceptional risk.The Court of Appeals has recently held that negligent entrustment liability arises only in cases of "extraordinariness or patent foreseeability of the particular situation" (LaTorre v Genesee Mgt., 90 NY2d 576; see also, Rios v Smith, 95 NY2d 647, 652). This case falls well short of that standard. The causes of action sounding in negligent entrustment are therefore dismissed, and Susan Hoffman is thus no longer a party to this action.

The record does definitively establish Matthew Hoffman's negligence. The plaintiff is entitled to partial summary judgment on liability. As all counsel agreed, however, this determination does not prejudice any party's right to argue that Mr. Peters's conduct was also negligent and also a cause of the accident. Comparative negligence remains an issue in this case.

Finally, papers received after this court's Tuesday 5:00 pm deadline contained sufficient evidence in support of the plaintiff's claim for conscious pain and suffering, as they indicate that Mrs. Peters attempted to respond to the first person on the scene. The court is generally disinclined to accept late submissions, but in view of the importance of this evidence and the lack of legal prejudice to any party it has, in its discretion, decided to include it in the record. On the basis of this material the motion to dismiss the action for pain and suffering is denied.

Thus, the complaint as against Susan Hoffman is dismissed, the cause of action sounding in negligent entrustment against David Hoffman is dismissed, partial summary judgment on liability is granted the plaintiff as against Matthew Hoffman, and all other motions are denied. Costs and disbursements will abide the event. Mr. Chelus may prepare the order, circulating it to other counsel for approval as to form.

DATED: Rochester, New York

March 8, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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