Jeremy Bottoms v. Charles Smith ( 2022 )

RENDERED: SEPTEMBER 9, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1085-MR
JEREMY BOTTOMS APPELLANT
APPEAL FROM NELSON CIRCUIT COURT
v. HONORABLE JOE G. BALLARD, JUDGE
ACTION NO. 19-CI-00324
CHARLES SMITH AND
DALTON RONALD SMITH, BY AND
THROUGH HIS PARENT AND
GUARDIAN, DIANE MARY SMITH APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.
CETRULO, JUDGE: This is an appeal from a summary judgment of the Nelson
Circuit Court in favor of the owner of a vehicle that was taken by an unlicensed,
underage driver, resulting in an accident that caused injuries. After careful
consideration, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On July 13, 2018, Dalton Smith (“Dalton”), a 15-year-old, was
visiting the farm of his grandfather, Charles Smith (“Charles”). Charles owned a
Chevy Silverado truck and was on another part of the property, taking a nap, when
Dalton took the keys to that truck, without permission of Charles. Dalton was
driving the truck later that evening when he struck a pedestrian, Jeremy Bottoms
(“Bottoms”), causing injuries. Dalton fled the scene but was later apprehended.
Bottoms filed suit against Dalton, by and through Dalton’s mother,
Diane Mary Smith (“Diane”), and against Charles, as owner of the vehicle. He
alleged that Charles failed to properly train and/or supervise his grandson; and that
he negligently entrusted the vehicle to Dalton. The depositions of Bottoms,
Dalton, Diane, and Charles were all taken, and written discovery was exchanged.
Charles moved for summary judgment asserting that he could not be
held liable under Kentucky law due to the lack of permission, because the
grandson’s act was unforeseeable, and because he had no duty to supervise or train
his grandson. Bottoms argued that Charles could be held jointly and severally
liable for damages pursuant to KRS1 186.590(3) because he knowingly permitted
Dalton to use the vehicle or “gave or furnished” the vehicle to him, by failing to
supervise. He also failed to contact the authorities immediately upon learning the
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Kentucky Revised Statute.
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vehicle was missing. Bottoms further argued the theory of negligent entrustment
applied and that there was evidence of “implied” permission by Charles.
The Nelson Circuit Court found that KRS 186.590(3) did not apply
and further declined to find that Charles violated any duty to supervise or train his
grandson, Dalton. The court also reviewed the argument of negligent entrustment
and concluded that there was insufficient evidence to support such a claim against
the grandfather in this case, and found no case law in Kentucky supporting a claim
of negligent entrustment on a theory of “implied” permission. Based upon its
review of the motions, depositions, and discovery in the case below, the court
below granted summary judgment in favor of Charles.2 This appeal followed.
STANDARD OF REVIEW
The standard of review on appeal when a trial court grants a motion
for summary judgment is “whether the trial court correctly found that there were
no genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996). The moving party bears the initial burden of showing that no genuine issue
of material fact exists, and then the burden shifts to the party opposing summary
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Dalton remains as a defendant in this matter. However, by the express provisions of CR 54.02,
a trial court may grant a final judgment on less than all the claims when more than one claim for
relief is presented in an action by including the finality language in its order, which this court
did. Watson v. Best Fin. Servs., Inc., 245 S.W.3d 722 (Ky. 2008).
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judgment to present at least some affirmative evidence showing a genuine issue of
material fact for trial. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476, 482 (Ky. 1991) (citations omitted). “An appellate court need not defer to the
trial court’s decision on summary judgment and will review the issue de novo
because only legal questions and no factual findings are involved.” Hallahan v.
The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004) (citations omitted).
ANALYSIS
Appellant’s first argument is that the trial court erred in finding that
KRS 186.590(3) did not apply to these facts. That statute provides:
Every motor vehicle owner who causes or knowingly
permits a minor under the age of eighteen (18) to drive
the vehicle upon a highway, and any person who gives or
furnishes a motor vehicle to the minor shall be jointly
and severally liable with the minor for damage caused by
the negligence of the minor in driving the vehicle.
(Emphasis added.)
The Nelson Circuit Court concluded that this statute did not apply as
there was no evidence of permission by Charles. On appeal, Bottoms asserts that
the court below narrowly construed the word “permits” and should have more
liberally construed this statute to provide a source of recovery to anyone who is
injured by a minor.
We agree that case law under this statute suggests that its purpose was
to provide an additional source of recovery of damages when a minor driver is
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found responsible for them. Sizemore v. Bailey’s Adm’r, 293 S.W.2d 165, 168
(Ky. 1956). In Sizemore, the Court held that it was clear that this was the intent of
the legislature, but further noted that KRS 186.590 is in derogation of an
established rule of law and therefore must be construed rigidly according to its
plain meaning. Id. “By making the person liable who enables a minor to operate a
motor vehicle, an additional source for the recovery of damages is provided.”
Peters v. Frey, 429 S.W.2d 847, 849 (Ky. 1968) (citing Sizemore, 293 S.W.2d at
169). We recognize that the minor is unlikely to have funds to compensate the
injured party.
However, in reviewing the cases analyzing this statute, as the trial
court also did, it is apparent that the plain meaning of the statute does require
“permission” and that no liability attaches to an owner of a vehicle unless it is first
established that the vehicle was operated with permission. Commonwealth Fire &
Casualty Ins. Co. v. Manis, 549 S.W.2d 303, 305 (Ky. App. 1977). Under the
plain language of KRS 186.590(3), Charles would only be liable for Dalton’s
negligence if three elements are met: (1) he is the owner of the motor vehicle
involved in the accident; (2) he caused or knowingly permitted Dalton to drive the
vehicle; and (3) Dalton is a minor under the age of 18. See also State Auto. Ins.
Co. v. Reynolds, 32 S.W.3d 508, 510 (Ky. App. 2000). While the first and third
elements were present, the evidence simply did not establish that Charles “caused
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or knowingly permitted” Dalton to drive the vehicle. Appellant presented a
compelling argument that Charles “knowingly permitted” Dalton to use the vehicle
by not immediately notifying the authorities upon discovery of his missing truck.
The time period that lapsed may have been as much as a few hours.
However, we simply cannot read the language of the statute that
broadly, nor impose a brightline “reasonable time to notify” upon one whose
vehicle is taken without permission or knowledge. In Cook v. Hall, 308 Ky. 500,
214 S.W.2d 1017 (1948), Kentucky’s highest Court held that the negligence of a
15-year-old boy could not be imputed to his father where there was no evidence
that the father had knowledge of or had caused his son to use the vehicle. Here,
Charles neither caused nor knowingly permitted Dalton to possess those keys. The
evidence was undisputed that Dalton took the keys out of his grandfather’s pants
while he was napping. We must agree with the trial court that KRS 186.590(3)
simply cannot be applied to impute joint and several liability upon Charles.
Secondly, Bottoms argues that the trial court erred in granting
summary judgment on the negligent supervision claim. Bottoms asserts that
Dalton had a history of making impulsive decisions and that Charles was on notice
that his grandson required a higher degree of supervision because he referred to
him as “a handful.”
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In contrast, Charles argued that James v. Wilson, 95 S.W.3d 875 (Ky.
App. 2002), is dispositive of this issue and further supports the summary judgment
granted below. James dealt with the alleged negligence of parents whose son
initiated the tragic school shootings in 1997 in Paducah. Id. at 883. In that case,
the court granted summary judgment to the parents as there was nothing known on
or before the date of that event to indicate a need to protect or prevent that minor
from shooting classmates at his school. Id. at 887. The appellants herein similarly
have produced no evidence that Charles knew on or before this date that Dalton
would take his keys without permission and drive his vehicle on public roads. It is
asserted that Dalton had taken his grandfather’s truck a week earlier, on a joyride
to town; however, having reviewed the depositions and entire record, and upon
further questioning of the attorneys at oral arguments, there was no evidence
offered that Charles knew of any alleged use of his vehicle by Dalton prior to this
evening. The trial court addressed this as well, noting that Dalton stated he did not
get caught on the week prior joyride and he only admitted this to his mother after
the incident in question.
Additionally, we are guided by Hugenberg v. West American
Insurance Company/Ohio Casualty Group, 249 S.W.3d 174 (Ky. App. 2006). In
Hugenberg, an underage, unlicensed child took a friend’s car and wrecked it,
causing serious injuries to a passenger. The Hugenberg Court stated, “[p]arents
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owe no duty to third parties to supervise or control their minor child to prevent the
child from harming others unless the parents know, or should know, of the need
and opportunity to exercise such control . . . .” Hugenberg, 249 S.W.3d at 185.
The Hugenberg Court determined that there was a question of fact as to whether
the owner of that vehicle may have given an underage driver implied or even
actual permission to operate the vehicle. Id. at 195. Further in Hugenberg, the
evidence suggested that the owner had permitted the driver to operate his vehicle
before and may have even given him the keys on the night in question. Id. Thus
this Court found summary judgment in favor of that owner was premature.
In contrast, here there was no evidence that Charles ever “permitted”
Dalton to operate his vehicle on a public road, nor that he had any knowledge of
any prior such use until after this event. Even Bottoms recognizes that Hugenberg
placed no duty on a parent to regulate a child’s behavior on an ongoing basis,
unless they knew or should know of a specific need to prevent their child from
committing an injurious act. Id. at 184.
Similarly, as part of Bottoms’ argument that the court erred in
granting summary judgment on the negligent supervision claim, he asserts 1) that
Charles had “custody and control” of Dalton, even though he was a grandfather,
not a parent, and, 2) that Dalton’s behavior was “foreseeable.” First, we have
reviewed the testimony of all witnesses and agree with the trial court that there is
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simply not sufficient evidence to imply or suggest any custody or control by
Charles in this case. Dalton did not have a closet, a chest, a room, or even a bed at
his grandparents’ home. He did not keep clothing there and generally only stayed
a night or two a week. All the testimony confirmed there was no “custody or
control” with the grandparents. Bottoms cites to no authority in Kentucky that
would extend the negligent supervision claim to a non-custodial grandparent.
Second, Bottoms again asserts that Dalton’s actions were foreseeable,
inasmuch as Charles did not prevent harm to others by reporting his vehicle’s
absence after he awoke. However, the trial court was unpersuaded.
After consideration of the facts and the existing
case law, the court finds Dalton’s theft of the keys and
subsequent joyride was not foreseeable. Charles has
testified Dalton had never previously driven his vehicle
to his knowledge. While the fact that Dalton had had
behavioral issues in the past might make an adult think
he might have more such problems, those issues would
not lead one to expect him specifically to steal a vehicle.
The trial court relied upon Bruck v. Thompson, 131 S.W.3d 764 (Ky.
App. 2004), where the original act was the owner leaving his keys in a vehicle that
resulted in a subsequent act of a thief stealing the vehicle and negligently driving
it. The trial court analyzed Bruck and other cases to conclude that Dalton’s theft of
the keys and subsequent negligent driving was not foreseeable to Charles. We
agree. As in Bruck, Dalton’s theft of the vehicle and negligent driving constituted
an “independent force,” which was the superseding cause of Bottoms’ injuries. Id.-9-
at 767. This independent force – Dalton’s actions – broke the chain of causation
and relieves Charles from any liability, if any existed. Id. at 767-68. See also
NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564 (Ky. App. 1993), and Howard v.
Spradlin, 562 S.W.3d 281 (Ky. App. 2018).
CONCLUSION
The Nelson Circuit Court correctly interpreted Kentucky law and
properly concluded that there were no genuine issues as to any material fact and
Charles was entitled to judgment as a matter of law. Accordingly, we AFFIRM the
summary judgment of the Nelson Circuit Court, as to Charles, and the matter is
remanded to the trial court for further proceedings as to Dalton.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE CHARLES
SMITH:
Michelle Buckley Sparks
Bardstown, Kentucky Eric A. Hamilton
Elizabethtown, Kentucky
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