Garcia v. Steele ( 2023 )

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SJC-13378
MARIA BLANCA ELENA GARCIA & another1 vs. SHANITQUA STEELE &
others.2
Suffolk. March 8, 2023. - June 27, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Motor Vehicle, Dealer, Entrustment. Negligence, Motor vehicle,
Vicarious liability, Entrustment. Contract, Consideration,
Lease of equipment. Federal Preemption. Statute, Federal
preemption, Construction. Practice, Civil, Summary
judgment.
Civil action commenced in the Superior Court Department on
July 27, 2018.
The case was heard by David A. Deakin, J., on motions for
summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Peter Antonelli (Thomas H. Curran also present) for the
plaintiffs.
1 José Fafián Seijo.
2 Kolawole Oke; MBB Auto, LLC, doing business as Mercedes
Benz of Brooklyn; and MBF Auto, LLC, doing business as Mercedes
Benz of Caldwell.
2
Michael S. Melville for MBB Auto, LLC, & another.
David M. Lentini, II, for Kolawole Oke.
WENDLANDT, J. This case presents the question whether an
automobile dealership that includes an automotive service center
and provides a "courtesy" vehicle to its customer while
conducting repair work on the customer's car is entitled to the
protection set forth in 49 U.S.C. § 30106 (Graves Amendment).
The Graves Amendment generally protects rental car companies
from being held vicariously liable for torts committed by
customers driving their rental vehicles. Where a rental car
company demonstrates that it falls within the scope of the
Federal statute, including, inter alia, by showing that the
vehicle at issue was "rent[ed] or lease[d]," the Graves
Amendment preempts State laws such as G. L. c. 231, § 85A
(§ 85A), which sets forth a rebuttable presumption that the
owner of a vehicle is vicariously liable for injuries caused by
the driver of the vehicle.
In the present case, a New Jersey-based automobile
dealership that includes an automotive service center provided a
courtesy vehicle to a customer while it serviced the customer's
vehicle. Contrary to the terms of the courtesy vehicle
agreements, the customer drove the vehicle beyond the permitted
radius of travel and into the Commonwealth. While in Boston, he
left the vehicle illegally parked with the key in the ignition
3
and the engine running as he conducted an errand; his then-wife,
who did not have a driver's license and was not an authorized
driver under the courtesy vehicle agreements, remained in the
vehicle. When a parking officer required that the vehicle be
moved, the wife moved into the driver's seat and pushed a
button. The vehicle rolled forward through a red light and
struck one of the plaintiffs, causing serious injuries.
The plaintiffs brought a negligence claim against, inter
alia, the automobile dealership. In opposition to the
automobile dealership's motion for summary judgment, the
plaintiffs relied on § 85A, contending that, as the owner of the
courtesy vehicle, the dealership was presumptively vicariously
liable for the injuries caused by the customer's wife.
We conclude that, under the circumstances, the Graves
Amendment protects the automobile dealership from being held
vicariously liable for the tortious conduct of the driver of its
courtesy vehicle. In particular, the record on summary judgment
indisputably demonstrates that the dealership provided the
courtesy vehicle in consideration for the customer's over-all
service repair business, and thus it "rent[ed]" or "lease[d]"
the vehicle even though it did not charge the customer for his
use of the vehicle as a line item separate from the service
work. Further concluding that the record is devoid of any basis
whatsoever for liability against a second dealership defendant
4
and that there is a dispute of material fact as to the negligent
entrustment claim against the customer, we affirm the grant of
summary judgment in favor of the dealership defendants, vacate
the grant of summary judgment insofar as it pertains to the
customer, and remand the matter to the Superior Court for
further proceedings.
1. Background. a. Facts. "The following facts are
either undisputed 'or viewed in the light most favorable to
. . . the party against [whom] summary judgment entered.'" HSBC
Bank USA, N.A. v. Morris, 490 Mass. 322, 323 (2022), quoting
Berry v. Commerce Ins. Co., 488 Mass. 633, 634 (2021).
In August 2016, the defendant Kolawole Oke brought his car
to the defendant MBF Auto, LLC, doing business as Mercedes Benz
of Caldwell (MBF Auto), in New Jersey to be serviced . Because
the service work was expected to require MBF Auto to hold Oke's
car for more than three hours, MBF Auto provided a courtesy
vehicle to Oke for his use while his car was being serviced.
The courtesy vehicle was owned by and registered to MBF Auto,
one of approximately 125 vehicles in the "loaner car fleet"
maintained by the dealership.
Prior to supplying the courtesy vehicle, MBF Auto required
Oke to provide his driver's license, proof of insurance, and a
credit card. Oke also signed a document entitled "loaner car
authorization form," pursuant to which, inter alia, he
5
represented that he had a valid driver's license, he agreed that
he would return the courtesy vehicle within twenty-four hours of
notification that repairs had been completed on his car, and he
acknowledged both that he would be charged a daily fee if he
failed to return the courtesy vehicle timely and that he would
be responsible for all third-party claims arising from his use
of the courtesy vehicle.
In addition, Oke signed a document entitled "courtesy car
agreement" on which Oke's driver's license number, his insurance
carrier and policy number, and the last four digits of his
credit card number were recorded. The agreement specified the
make, model, year, license plate number, and "car number" of the
courtesy vehicle and set forth a "rate" of "$0.00" per mile for
the vehicle, with no "net amount due." The agreement provided
additional terms of the courtesy vehicle arrangement, including
that the vehicle was "[l]imited to operation within 100 mile
radius of Mercedes-Benz of Caldwell[, New Jersey]." Just above
Oke's name and signature, in a font that was noticeably larger
than the other provisions in the agreement, the agreement
provided: "UNDERSIGNED CLIENT IS THE ONLY PERSON AUTHORIZED TO
OPERATE VEHICLE." This term was boldfaced and in all capital
letters. Oke again acknowledged that he would be charged a
daily rate should he fail to return the courtesy vehicle within
twenty-four hours of receiving notice that repairs had been
6
completed on his own car; and he again agreed "[t]o hold Lessor
harmless and to assume full responsibility for any loss,
damage[,] or any claim that may occur, to any person, or
persons, or any other property, of any kind, through the use by
any person including the Lessee of the above vehicle while it is
entrusted to Lessee's use and/or care." At his deposition, Oke
testified that he understood that he was the only person
authorized to operate the courtesy vehicle.3 Oke's then-wife,
the defendant Shanitqua Steele, was not at MBF Auto and was not
involved in the courtesy vehicle transaction.
Despite the terms of these agreements, Oke drove the
courtesy vehicle to Boston, more than one hundred miles from MBF
Auto. While there, Oke drove the vehicle, with Steele as a
passenger, to visit his lawyer. He parked the courtesy vehicle
illegally in a drop-off only zone near a crosswalk; while he
attended to his errand, Steele, who Oke knew did not have a
driver's license, remained in the vehicle. Oke left the key in
the ignition, the engine running, and the turn signal activated.
3 In one joint statement of undisputed facts, the plaintiffs
admit that Steele did not have permission from Oke or MBF Auto
to drive the courtesy vehicle; however, in a different joint
statement of undisputed facts, the plaintiffs deny this same
fact, on the ground that MBF Auto did not read the courtesy
vehicle agreements aloud to Oke and that Oke left Steele in the
vehicle with the engine running. We address these arguments
infra.
7
Shortly thereafter, a parking enforcement officer asked
Steele to move the vehicle. Steele, who understood that she did
not have permission to drive the vehicle, nonetheless moved into
the driver's seat. She pressed a button ostensibly to
deactivate the turn signal; instead, the car rolled forward
through a red traffic light and struck the plaintiff Maria
Blanca Elena Garcia, who was walking in the crosswalk. Garcia
suffered severe injuries.
b. Procedural history. Garcia and her husband, the
plaintiff José Fafián Seijo, sued MBF Auto, MBB Auto, LLC, doing
business as Mercedes Benz of Brooklyn (MBB Auto)4 (together with
MBF Auto, dealership defendants), Oke, and Steele, alleging
negligence as to Steele and the dealership defendants, negligent
entrustment as to Oke, and loss of consortium as to all
defendants. A Superior Court judge granted summary judgment in
favor of Oke and the dealership defendants.5 The plaintiffs
timely appealed, and this court transferred the case sua sponte.
2. Discussion. a. Standard of review. "Our review of a
decision on a motion for summary judgment is de novo." HSBC
4 Although the plaintiffs initially contended that MBB Auto
co-owned the courtesy vehicle, they now admit that MBB Auto was
neither the owner of the courtesy vehicle nor otherwise involved
in the courtesy vehicle transaction between MBF Auto and Oke.
The record being devoid of any basis for MBB Auto's liability,
we affirm the grant of summary judgment in its favor.
5 Steele did not seek summary judgment.
8
Bank USA, N.A., 490 Mass. at 326, quoting Berry, 488 Mass. at
636. Viewing "the evidence in the light most favorable to the
party against whom summary judgment entered," HSBC Bank USA,
N.A., supra at 326-327, "[s]ummary judgment is appropriate where
there is no material issue of fact in dispute and the moving
party is entitled to judgment as a matter of law." Id. at 326.
We also "review questions of statutory interpretation de
novo." Conservation Comm'n of Norton v. Pesa, 488 Mass. 325,
331 (2021). In construing a statute, we "start . . . with the
language of the statute." Williams v. Taylor, 529 U.S. 420, 431
(2000). "It is a 'fundamental canon of statutory construction'
that, 'unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.'" Sandifer
v. United States Steel Corp., 571 U.S. 220, 227 (2014), quoting
Perrin v. United States, 444 U.S. 37, 42 (1979). We do not
construe terms in isolation; instead, we consider the specific
language of a provision in the context of the statute as a
whole. See Yates v. United States, 574 U.S. 528, 537 (2015)
(ordinary meaning may be different in "the specific context in
which that language is used, and the broader context of the
statute as a whole" [citation omitted]). Where the statutory
command is straightforward, "there is no reason to resort to
legislative history." United States v. Gonzales, 520 U.S. 1, 6
(1997). See Burlington N. R.R. v. Oklahoma Tax Comm'n, 481 U.S.
9
454, 461 (1987) ("Legislative history can be a legitimate guide
to a statutory purpose obscured by ambiguity, but [i]n the
absence of a clearly expressed legislative intention to the
contrary, the language of the statute itself must ordinarily be
regarded as conclusive" [quotations and citations omitted]).
b. Vicarious liability and the Graves Amendment. The
plaintiffs contend that MBF Auto is vicariously liable for the
tortious conduct of Steele. They rely on § 85A, which
establishes a presumption that evidence that the vehicle was
registered in the name of the defendant as owner at the time of
an accident involving the vehicle "shall be prima facie evidence
that [the vehicle] was then being operated by and under the
control of a person for whose conduct the defendant was legally
responsible, and absence of such responsibility shall be an
affirmative defence." G. L. c. 231, § 85A. The plaintiffs
maintain that § 85A precludes summary judgment because MBF Auto,
as the registered owner of the courtesy vehicle, was
presumptively in control of Steele at the time of the accident
giving rise to the plaintiffs' negligence claim under the theory
of vicarious liability.
MBF Auto contends, and the motion judge agreed, that the
Graves Amendment preempts § 85A and that, under the
circumstances of the present case, the Graves Amendment
10
precludes holding MBF Auto vicariously liable for Steele's
conduct. The Graves Amendment provides, in relevant part:
"An owner of a motor vehicle that rents or leases the
vehicle to a person (or an affiliate of the owner) shall
not be liable under the law of any State or political
subdivision thereof, by reason of being the owner of the
vehicle (or an affiliate of the owner), for harm to persons
or property that results or arises out of the use,
operation, or possession of the vehicle during the period
of the rental or lease, if -- (1) the owner (or an
affiliate of the owner) is engaged in the trade or business
of renting or leasing motor vehicles; and (2) there is no
negligence or criminal wrongdoing on the part of the owner
(or an affiliate of the owner)." (Emphases added.)
49 U.S.C. § 30106(a). Where applicable, the Graves Amendment
expressly preempts State laws, such as § 85A. See Hillman v.
Maretta, 569 U.S. 483, 490 (2013) ("Under the Supremacy Clause,
Congress has the power to pre-empt [S]tate law expressly"). In
particular, its protection extends to owners of vehicles that
rent or lease the vehicle, are in the business or trade of
renting or leasing vehicles, and are not negligent or criminal
in connection with the rental or lease. The plaintiffs maintain
that the Graves Amendment does not apply to MBF Auto's courtesy
vehicle program, arguing principally that MBF Auto did not rent
or lease the vehicle because it provided the vehicle merely as a
courtesy to Oke, receiving no consideration for doing so. They
also maintain that MBF Auto was negligent in its administration
of its courtesy vehicle program.
11
i. Rent or lease requirement. To trigger the protection
afforded to rental car companies pursuant to the Graves
Amendment, the owner of the car in question, inter alia, must
have "rent[ed]" or "lease[d]" the car. 49 U.S.C. § 30106(a).
In other words, the owner must have received consideration in
exchange for the car. See Black's Law Dictionary 909 (8th ed.
2004) (defining "lease" as "[t]o grant the possession and use of
[land, buildings, rooms, movable property, etc.] to another in
return for rent or other consideration" [emphasis added]); id.
at 1322 (defining "rent" as "[c]onsideration paid, usu[ally]
periodically, for the use or occupancy of property [esp[ecially]
real property]" [emphasis added]).6 Accord Thayer v. Randy
Marion Chevrolet Buick Cadillac, LLC, 30 F.4th 1290, 1293 (11th
Cir. 2022) (analyzing Graves Amendment and determining that "to
6 "Dictionaries are useful aids in determining a word's
ordinary meaning." Penobscot Nation v. Frey, 3 F.4th 484, 491
(1st Cir. 2021), cert. denied sub nom. United States v. Frey,
142 S. Ct. 1668 (2022), and cert. denied, 142 S. Ct. 1669
(2022), citing Octane Fitness, LLC v. ICON Health & Fitness,
Inc., 572 U.S. 545, 553-554 (2014) (interpreting "exceptional"
based on dictionary definitions), and Kellogg Brown & Root
Servs., Inc. v. United States ex rel. Carter, 575 U.S. 650, 662
(2015) (defining "pending" using dictionary definitions). See
Yates, 574 U.S. at 537 ("Ordinarily, a word's usage accords with
its dictionary definition").
The eighth edition of Black's Law Dictionary, "which was
current when the Graves Amendment was enacted and for several
years thereafter, does not define 'rent' as a verb." Thayer v.
Randy Marion Chevrolet Buick Cadillac, LLC, 30 F.4th 1290, 1293
n.3 (11th Cir. 2022).
12
rent or lease a vehicle requires an exchange of consideration
for the use of the vehicle").7
In the present case, MBF Auto contends that, even though it
provided Oke with a vehicle as a "courtesy," and thus did not
charge Oke to use the vehicle, it received consideration for the
vehicle in the form of acquiring the opportunity to perform the
repair work on Oke's car. Specifically, MBF Auto maintains that
the courtesy vehicle was part of a larger transaction to perform
repair work on Oke's car even though the courtesy vehicle itself
was not delineated as a separate line item in the service deal.
The plaintiffs, by contrast, argue that, because the courtesy
vehicle was provided to Oke free of any additional charge, MBF
Auto did not receive consideration and the vehicle thus was not
"rent[ed]" or "lease[d]" as required by the Graves Amendment.
Consideration is the inducement to a contract; it can take
the form of an act, a forbearance, or a return promise bargained
for and received by a promisor from a promisee. See Black's Law
7 The parties do not contend, and we see nothing to suggest,
that the context of the statute as whole indicates an
alternative construction of the term "rent" or "lease." See
Pub. L. No. 109-59, 109th Cong., 1st Sess., Title X, Subtitle B,
§ 10208(a), 119 Stat. 1935 (2005). The Graves Amendment was a
"Miscellaneous Provision[]" to the "Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users," 119
Stat. 1144, a statute that does not use the terms "rent" or
"lease" other than according to their ordinary meanings. See,
e.g., 119 Stat. 1765. And, because the words of the statute are
unambiguous, we need not consult its legislative history.
Gonzales, 520 U.S. at 6.
13
Dictionary, supra at 324 (defining "consideration" as
"[s]omething [such as an act, a forbearance, or a return
promise] bargained for and received by a promisor from a
promisee; that which motivates a person to do something,
esp[ecially] to engage in a legal act"); Webster's Third New
International Dictionary 484 (1993) (defining "consideration" as
"something given as recompense: as . . . something that is
legally regarded as the equivalent or return given or suffered
by one for the act or promise of another: an act or forbearance
or the promise of it done or given by one party").
Consideration need not take the form of a monetary payment.
See Thayer, 30 F.4th at 1294 ("consideration is broader than
simply the payment of money"). See also Stanley v. Schwalby,
162 U.S. 255, 276 (1896) ("A valuable consideration may be other
than the actual payment of money, and may consist of acts to be
done . . ."). It extends to "any act of [one party] from which
the [other party] . . . derives a benefit or advantage"
(citation omitted). Black's Law Dictionary, supra at 324.
"[C]onsideration in its widest sense is the reason, motive, or
inducement, by which a man is moved to bind himself by an
agreement" (citation omitted). Id. Accord Huang v. Ma, 491
Mass. 235, 240 (2023) ("a reciprocal exchange of benefit and
detriment constitut[es] consideration").
14
Here, MBF Auto provided the courtesy vehicle as part of a
servicing transaction to repair Oke's car; in exchange for the
opportunity to service Oke's car and to be paid for that repair
work, MBF Auto offered the repair work itself and the courtesy
vehicle as further inducement to obtain Oke's business. See
Thayer, 30 F.4th at 1294 & n.4 ("[the owner] provides vehicles
in exchange for the opportunity to service the customer's car"
and "the provision of a vehicle may serve as an inducement for
the customer").
The plaintiffs maintain that the Graves Amendment does not
apply where, as here, the courtesy vehicle was not billed
separately from MBF Auto's repair work on Oke's car. However,
"the law does not require every term of the contract to have a
separately stated consideration." Edwards v. First Am. Corp.,
798 F.3d 1172, 1182 (9th Cir. 2015). Rather, "[a] single
performance or return promise may . . . furnish consideration
for any number of promises." Id., quoting Restatement (Second)
of Contracts § 80 comment a (1981). See 3 R.A. Lord, Williston
on Contracts § 7:51 (4th ed. 2008) (stating basic premise that
one consideration may support several promises). Indeed, the
same argument made by the plaintiffs here was squarely rejected
by the United States Court of Appeals for the Eleventh Circuit,
which noted that often rental companies provide a vehicle as
15
part of a larger package deal and yet they are entitled to the
protection of the Graves Amendment. Thayer, 30 F.4th at 1294.8
The plaintiffs' contention that MBF Auto is not entitled to
the protection of the Graves Amendment because the courtesy
vehicle agreements refer to the vehicle as a "loaner" car fares
no better.9 To the contrary, the labels used by the contracting
parties are not controlling. See Thayer, 30 F.4th at 1294
("Whatever label [the owner] happened to assign to the vehicle
here does not control the legal determination of whether the
Graves Amendment applies. The substance of the transaction, not
the label used, controls"). Cf. Lone Star Silicon Innovations
LLC v. Nanya Tech. Corp., 925 F.3d 1225, 1229 (Fed. Cir. 2019),
citing Waterman v. Mackenzie, 138 U.S. 252, 256 (1891) (legal
effect of agreement "depends on the substance of what was
8 To the extent the plaintiffs argue that MBF did not "rent"
the courtesy vehicle because Oke was charged a one-time fee for
the service work and thus was not charged periodically as rent
usually is, see Black's Law Dictionary, supra at 1322, we
disagree. It is indisputable that the Graves Amendment protects
traditional rental car companies, yet "most rental cars are
rented for a one-time payment, meaning that fact cannot preclude
application of the Graves Amendment." Thayer, 30 F.4th at 1294.
9 The term "loan" means "[t]o lend, esp[ecially] money,"
Black's Law Dictionary, supra at 955, and "lend" means "[t]o
allow the temporary use of (something), sometimes in exchange
for compensation, on condition that the thing or its equivalent
be returned," id. at 921. The plaintiffs assert that because
the courtesy vehicle was a "loaner," it could not also have been
rented or leased. As is clear from their definitions, however,
the terms are not mutually exclusive.
16
granted rather than formalities or magic words"). As discussed
supra, looking at the substance of the transaction between MBF
Auto and Oke, the courtesy vehicle meets the ordinary meaning of
"rent[]" or "lease[]" because it was provided to Oke in exchange
for consideration -- namely, the opportunity to service Oke's
car.10
ii. Business of renting or leasing vehicles requirement.
To qualify for the protection of the Graves Amendment, MBF Auto
must be in "the trade or business of renting or leasing motor
10The plaintiffs, citing Zizersky v. Life Quality Motor
Sales, Inc., 21 Misc. 3d 871 (N.Y. Sup. Ct. 2008), contend
perfunctorily that extending the Graves Amendment to owners of
courtesy vehicles like the one at issue in the present case
raises concerns under the commerce clause of the United States
Constitution. See art. 1, § 8, cl. 3, of the United States
Constitution. See also Zizersky, supra at 880 (including
"loaner" vehicles would "raise a question about the
constitutionality of the [Graves] Amendment" because "[n]othing
has been proffered on this motion to suggest that a 'loaner'
vehicle, even if connected to the purchase or lease of another
vehicle, has any effect whatsoever on the market for leased or
rented vehicles"). The argument runs contrary to the near
unanimous holdings of Federal courts that have considered
similar challenges. See Rodriguez v. Testa, 296 Conn. 1, 22
(2010) (collecting cases and concluding that "all but one
district court have found [the Graves Amendment] to be a proper
exercise of the commerce power"). Indeed, it is beyond question
that Congress may protect and regulate "the instrumentalities of
interstate commerce," United States v. Lopez, 514 U.S. 549, 558
(1995), and "those activities having a substantial relation to
interstate commerce," id. at 558-559. The regulation of rentals
of courtesy vehicles falls within this power. In fact, here,
the MBF Auto courtesy car agreement limited Oke to driving the
vehicle within one hundred miles of Caldwell, New Jersey, a
radius that includes multiple other States. And, in
contravention of this limitation, Oke drove the courtesy vehicle
into Massachusetts.
17
vehicles." 49 U.S.C. § 30106(a)(1). The record on summary
judgment indisputably shows that it was. Specifically, MBF Auto
maintained approximately 125 vehicles in its "loaner car fleet."
Since 2014, MBF Auto has "regularly provide[d] loaner vehicles
to customers as a courtesy when a customer's car is being
serviced for more than three hours." At any given time,
approximately ninety to ninety-five percent of those vehicles
are with customers, and in the month of August 2016, when the
accident at issue occurred, MBF Auto provided courtesy vehicles
to its customers 886 times.11
iii. Negligence. In addition to the aforementioned
requirements, an owner who rents or leases a vehicle is
protected from being held vicariously liable only if there was
"no negligence or criminal wrongdoing on the part of the owner."
49 U.S.C. § 30106(a)(2).12 "To prevail on a negligence claim, a
plaintiff must prove that the defendant owed the plaintiff a
duty of reasonable care, that the defendant breached this duty,
11The plaintiffs did not contest before the motion judge
that MBF Auto was in the business of renting or leasing
vehicles; the argument is thus waived. See Boss v. Leverett,
484 Mass. 553, 563 (2020) ("issues not raised below cannot be
argued for the first time on appeal"). Even on appeal, the
plaintiffs mention the issue only briefly and make no argument
separate from their challenge that the courtesy vehicle was not
"rented" or "leased."
12The plaintiffs do not argue MBF Auto engaged in any
criminal wrongdoing.
18
that damage resulted, and that there was a causal relation
between the breach of the duty and the damage." Jupin v. Kask,
447 Mass. 141, 146 (2006). Although "[w]e generally consider
the latter three questions . . . to be the special province of
the jury," id., summary judgment may enter where a plaintiff
fails to raise a genuine dispute of material fact. See, e.g.,
Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010) ("The
issue whether an attorney's negligence was a proximate cause of
a client's loss may be resolved at the summary judgment stage").
See also Patterson v. Christ Church in the City of Boston, 85
Mass. App. Ct. 157, 159 (2014) ("Negligence cases are not
frequently resolved by summary judgment, but a judge may decide
the issue as [a] matter of law when no rational view of the
evidence permits a finding of negligence" [quotation and
citation omitted]).
The plaintiffs contend that MBF Auto owed a duty of care to
third parties, like the plaintiffs, to reasonably administer and
supervise its courtesy vehicle program, and that its failure to
do so caused them harm. The plaintiffs maintain that MBF
committed a breach of its duty in several ways, the first of
which was by failing to take additional steps to verify that
Oke's driver's license was valid beyond accepting his
representation that it was. Regardless of whether MBF Auto
should or could verify the validity of Oke's driver's license,
19
no rational view of the record supports a finding that the
failure to verify Oke's driver's license caused Steele to drive
the courtesy vehicle, resulting in the plaintiffs' injuries.13
Next, the plaintiffs maintain that MBF Auto committed a
breach of its duty of care in its administration and supervision
of the courtesy car program by failing to train its employees to
instruct Oke orally on the restrictions placed on his use of the
vehicle –- namely, that he could only use the vehicle within a
one hundred-mile radius of the dealership and that he was the
only authorized driver. These restrictions, however, were set
forth in writing in the courtesy vehicle agreements, which Oke
signed. Most pertinent to the accident -- which occurred while
Steele was driving the courtesy vehicle -- one of the agreements
set forth in large, boldfaced, capital letters, right above the
signature line: "UNDERSIGNED CLIENT IS THE ONLY PERSON
AUTHORIZED TO OPERATE VEHICLE." Moreover, Oke knew at the time
he signed the courtesy vehicle agreements that he was the only
person authorized to operate the courtesy vehicle. Thus, no
jury could reasonably conclude that MBF Auto's alleged failure
to train its employees to orally explain the provisions of the
written contract to Oke caused the accident. The plaintiffs
have not raised a genuine dispute of material fact that MBF Auto
13Oke represented that he had a valid driver's license, and
nothing in the record contradicts that, in fact, he did.
20
negligently caused the accident and thus was not protected by
the Graves Amendment;14 accordingly, MBF Auto is entitled to
summary judgment.15
c. Negligent entrustment. We turn next to the plaintiffs'
claim of negligent entrustment against Oke. "In order to
prevail on a claim of negligent entrustment of an automobile, it
is necessary for the plaintiff to show, among other things, that
the defendant owned or controlled the motor vehicle concerned,
and that the defendant gave the driver permission to operate the
vehicle" (quotation and citation omitted).16 Alioto v. Marnell,
402 Mass. 36, 40 (1988).17 We have described the requisite
"permission" as "knowingly allowing an incompetent operator to
drive the defendant's vehicle" (citation omitted). Barnstable
14For at least these same reasons, the plaintiffs' claim
that MBF Auto is directly liable (as opposed to vicariously
liable) for its negligence in the administration of its courtesy
vehicle program also fails.
15In light of the foregoing, plaintiffs' loss of consortium
claim as it pertains to the dealership defendants also fails.
See Sena v. Commonwealth, 417 Mass. 250, 264 (1994) ("a claim
for loss of consortium requires proof of a tortious act that
caused the claimant's spouse personal injury").
16It is undisputed that Oke controlled the courtesy
vehicle.
17A claim of negligent entrustment also requires "proof of
the driver's incompetence, and proof of the defendant owner's
knowledge of that incompetence." Leone v. Doran, 363 Mass. 1,
11, vacated in part on other grounds, 363 Mass. 886 (1973).
Here, it is not disputed that Oke knew that Steele lacked a
driver's license.
21
County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978).
The record shows that Oke left the courtesy vehicle running with
the key in the ignition while it was illegally parked; he
attended to his errand while Steele remained in the vehicle.
This conduct, a rational finder of fact could reasonably
conclude, constituted implicit permission or knowing consent for
Steele to move the illegally parked vehicle if needed.18 See,
e.g., Watson v. Salvoni, 27 Mass. App. Ct. 735, 737 (1989) (in
connection with claim for negligent entrustment, examining
whether parents gave "implied" permission for son to drive moped
through prior conduct). See generally A.L. Cohen, Cause of
Action for Negligent Entrustment of Motor Vehicle, 23 Cause of
Action 2d 265 § 10 (2003 & May 2023 update) ("If the owner knew,
or had reasonable cause to know, that his or her actions or
omissions would place the operation of a motor vehicle in the
care of a person unfit to handle that responsibility, the test
for permissive use is satisfied").19
18Oke's reliance on cases concerning stolen vehicles is
inapt where, as here, the vehicle was not stolen; moreover, "the
reasoning of cases involving keys negligently left in ignitions
is no longer persuasive." Poskus v. Lombardo's of Randolph,
Inc., 423 Mass. 637, 640 (1996). See R.L. Currie Corp. v. East
Coast Sand & Gravel, Inc., 93 Mass. App. Ct. 782, 785 & n.5
(2018) (collecting cases).
19Cf. Drescher v. Travelers Ins. Co., 359 Mass. 458, 460-
461 (1971) (operation of vehicle was "impliedly sanctioned" by
owner); Dufour v. Arruda, 299 Mass. 46, 47-48 (1937) (operation
of vehicle was with "implied consent" of owner). Other
22
3. Conclusion. The grant of summary judgment in favor of
MBF Auto and MBB Auto, see note 4, supra, is affirmed. The
grant of summary judgment in favor of Oke is reversed, and the
case is remanded for further proceedings.
So ordered.
jurisdictions have concluded that the permission element of a
claim for negligent entrustment includes implied permission or
knowledge. See, e.g., Morin v. Moore, 309 F.3d 316, 327 (5th
Cir. 2002) ("for purposes of a negligent entrustment claim,
permission may be express or implied"); Armenta v. A.S. Horner,
Inc., 2015-NMCA-092, ¶ 22, quoting Allstate Ins. Co. v. Jensen,
1990–NMSC–009, ¶ 8 n.3 ("Implied permission to use a motor
vehicle can be inferred from a course of conduct or relationship
between the parties, or other facts and circumstances signifying
the assent of the owner"); Kingrey v. Hill, 245 Va. 76, 78
(1993) ("In considering negligent entrustment of automobiles, we
have required express permission, evidence of a pattern of
conduct supporting implied permission, or evidence of knowledge
that an automobile would be used notwithstanding explicit
instructions to the contrary" [emphasis added]).