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Neary v. McDonald (4/17/98), 956 P 2d 1205
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL NEARY, )
) Supreme Court No. S-7467
) Superior Court No.
v. ) 3AN-95-254 CI
BOBBIE L. McDONALD, SR., ) O P I N I O N
BOBBIE L. McDONALD, JR., )
CLAUDETTE M. McDONALD, )
Appellees. ) [No. 4973 - April 17, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Roger E. Holl, Anchorage, for
Appellant. Jonathon A. Katcher, Pope & Katcher, Anchorage, for
Appellees, Bobbie L. McDonald, Sr. and Claudette M. McDonald. No
appearance for Bobbie L. McDonald, Jr.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice, dissenting in part.
Daniel Neary sued Bobbie L. McDonald, Sr. and Claudette
McDonald on a negligent entrustment theory after a vehicle driven
by their adult son, Bobbie L. McDonald, Jr., collided with Neary's
motorcycle. The superior court found that there were no genuine
issues of material fact and granted summary judgment to the
McDonald parents. We affirm.
II. FACTS AND PROCEEDINGS
Bobbie L. McDonald, Jr. (Bobbie Jr.) bought a 1987 Nissan
Pathfinder on June 2, 1994, with a cash payment of $7,490. He was
then eighteen years old. He was a carpenter making about $7 per
hour and lived in a trailer park. He had moved out of his parents'
home in November 1993. His parents, Bobbie L. McDonald, Sr.
(Bobbie Sr.) and Claudette M. McDonald (the McDonald parents),
later denied by affidavit being involved in the purchase "in any
Bobbie Jr. registered the car in the name of "Bobbie L.
McDonald"or "Claudette M. McDonald." On the application for title
and registration, Bobbie Jr. did not write "Jr."in the suffix
space of the "Ownership"name field; he listed his parents' address
in the address field. Both parents affied it was Bobbie Jr.'s
signature on the application. The application bears Bobbie Jr.'s
date of birth and a social security number which was identical to
Bobbie Jr.'s except for the last digit. His parents attributed the
difference in that digit to a typographical error. His social
security number and the number listed on the application are not at
all similar to his father's. The application lists no driver's
license number for the vehicle owner.
Bobbie Jr.'s mother affied that he did not notify her
that he had put her name on the registration. She learned about
her co-ownership status when the Division of Motor Vehicles (DMV)
mailed a copy of the vehicle's registration to her in July 1994.
Claudette McDonald attested that when she saw that the registration
listed her as an owner, she immediately called her son and asked
him to take her name off the title. Bobbie Jr. later told his
mother that he could not change the title because there was a
problem with the vehicle's emissions.
On July 30, 1994, Bobbie Jr. pulled out onto a busy
street in the Pathfinder and struck a motorcycle being operated by
Daniel Neary. The motorcycle was heavily damaged and came to rest
more than thirty-two feet from the point of impact. Neary landed
some twenty-six feet beyond his motorcycle and was extensively
injured. His foot was later amputated, and he suffered a heart
attack in the hospital.
Bobbie Jr. was unlicensed and uninsured. His parents
carried no automobile insurance for the Pathfinder. Bobbie Jr. had
a history of driving mishaps and disciplinary problems. He had at
least one previous vehicle accident, according to his mother. He
had several prior encounters with police following incidents of
theft, leaving the scene of an accident, and other mischief.
Neary filed a complaint against all three McDonalds,
alleging, in part, that the McDonald parents negligently entrusted
the vehicle to their son. The McDonald parents moved for summary
judgment, arguing that there was no evidence showing that they had
supplied the vehicle to Bobbie Jr., or that they had control over
their adult son or his use of the vehicle. They supported their
motion with their affidavits. Neary cross-moved for partial
summary judgment against the parents on the issue of liability for
The superior court denied Neary's motion and granted the
parents' motion. The court found that there were no genuine issues
of material fact as to the ownership or financing of Bobbie Jr.'s
Pathfinder and entered summary judgment in favor of the parents.
A. Did the Parents Negligently Entrust the Vehicle to Their
The main issue is whether the parents negligently
entrusted the Pathfinder to their son. The superior court found
that, absent evidence that Bobbie Jr.'s vehicle was supplied by his
parents, the parents could not be liable for negligent entrustment.
It ruled that Neary had not established the existence of genuine
issues of material fact as to the ownership or financing of the
vehicle: "There's simply no evidence that the automobile here was
supplied by the parents to the son."
Neary argues that he was entitled to summary judgment, or
that, at the least, genuine and material fact disputes precluded
summary judgment for the parents on the negligent entrustment
claim. [Fn. 1]
As a general rule, the owner or other person in control
of a vehicle and responsible for its use who is negligent in
knowingly supplying, entrusting, permitting or lending it to an
incompetent or habitually careless driver is liable for negligent
entrustment. See, e.g., McCart v. Muir, 641 P.2d 384, 387 (Kan.
1982); Bahm v. Dormanen, 543 P.2d 379, 381 (Mont. 1975).
We have recognized the common law tort of negligent
entrustment in two cases involving entrustment of vehicles. See
Providence Wash. Ins. Co. of Alaska v. McGee, 764 P.2d 712, 715-16
(Alaska 1988); Flieger v. Barcia, 674 P.2d 299, 301 (Alaska 1983).
However, neither case discussed the tort of negligent entrustment
in much depth, and neither case involved factual circumstances
similar to the case at bar.
In Providence we affirmed a grant of summary judgment
finding that the defendant was not liable for negligent
entrustment. Providence Wash. Ins. Co., 764 P.2d at 715-16. The
defendant employer had provided a truck for its employee to pick up
work materials. Id. at 712. We ruled that the employer was not
liable for negligent entrustment in the absence of evidence that
the employee's supervisors had any reason to suspect that the
plaintiff employee drove while intoxicated. Id. at 715-16.
In Flieger we reversed the summary judgment entered for
the defendant sellers on the issue of negligent entrustment.
Flieger, 674 P.2d at 301-02. The plaintiffs had been injured as a
result of a collision with a truck. Id. at 300. The defendants
had sold the truck to the buyer nine days before the accident, and
the new title had not yet been issued. Id. at 300-01. We found
that there was a substantial fact dispute about whether the sellers
were negligent in giving possession of the truck to the buyer. Id.
at 301. We also found that the issue of ownership of the truck was
irrelevant to the issue of negligence. Id.
Most states have patterned their versions of the
negligent entrustment doctrine after two sections of the
Restatement (Second) of Torts. Section 308 states:
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 of harm
Restatement (Second) of Torts sec. 308 (1965).
Restatement (Second) of Torts sec. 390 is a special
application of the rule stated in sec. 308. Restatement (Second)
Torts sec. 390 cmt. b (1965). Section 390 states:
One who supplies directly or through a third
person a chattel for the use of another whom the supplier knows or
has reason to know to be likely because of his youth, inexperience,
or otherwise, to use it in a manner involving unreasonable risk of
physical harm to himself and others whom the supplier should expect
to share in or be endangered by its use, is subject to liability
for physical harm resulting to them.
Restatement (Second) of Torts sec. 390.
As so described, negligent entrustment liability cannot
be established unless the defendant had sufficient control of the
vehicle, and negligently supplied it to an incompetent third party.
B. Did the Parents Have Sufficient Control of the Vehicle?
Neary argues that because Claudette McDonald was a co-
owner of the vehicle and knew of her son's poor driving record, she
should be found liable for negligently entrusting the vehicle to
Bobbie Jr. Citing AS 28.10.261, [Fn. 2] Neary asserts that co-
ownership and the accompanying right to control should be
considered established because Claudette was listed as co-owner on
the certificate of title. Neary also argues that because the
application form lists Bobbie as owner, does not insert "Jr."in
the suffix space, and bears the parents' address, there is a
genuine fact dispute whether Bobbie Sr. and Claudette are the co-
owners of the Pathfinder.
The parents reply that evidence establishes that
Claudette was not a co-owner of the vehicle, rebutting the title's
prima facie evidence of ownership. See Weaver v. O'Meara Motor
Co., 452 P.2d 87, 90 (Alaska 1969) (allowing oral testimony as to
ownership and right to possession to rebut certificate of title).
In addition, the parents assert that courts disfavor the rigid
conception of ownership based upon certificates of title.
The superior court found no genuine issue of material
fact regarding ownership. Although the title documents permitted
a reasonable inference that Claudette had an ownership interest in
the vehicle, the evidence as a whole nonetheless did not permit an
inference that the parents had sufficient control over the vehicle
to prevent Bobbie Jr. from operating it and colliding with Neary.
To be liable for negligent entrustment, the defendant
must have a right to control or possess the vehicle. Lopez v.
Langer, 761 P.2d 1225, 1227 (Idaho 1988) (finding that the title
owner did not have sufficient control over the possessor of the
vehicle for liability purposes). A right to control does not
always mean ownership, but generally means that the defendant must
have a greater right of possession or control than the "entrustee."
See, e.g., Zedella v. Gibson, 650 N.E.2d 1000, 1003-04 (Ill. 1995)
(stating that "if the [defendant] does not have an exclusive or
superior right of control, no entrustment of the property can
occur"). The defendant must have the power to permit or prohibit
the third party from using the vehicle. See Neale v. Wright, 585
A.2d 196, 201 (Md. 1991). The Neale court explained:
[I]n order for [defendant] to . . . be liable
under a negligent entrustment theory, [defendant] had to have the
power to permit or prohibit [entrustee] from using the vehicle.
That power could emanate from a superior right to control the
operation of the car, or from a special relationship between the
"entrustor"and the driver, such as a parent-child relationship.
Id. at 201 (citations omitted).
Neary produced no evidence creating a genuine issue of
material fact about whether the parents had a superior right of
control over the vehicle. See Hildebrandt v. City of Fairbanks,
863 P.2d 240, 244 n.6 (Alaska 1993) (explaining that party opposing
summary judgment motion supported by evidence must demonstrate that
a material issue of fact exists). In their affidavits the parents
asserted that they did not assist in or even know about Bobbie
Jr.'s purchase of the vehicle until after it took place. Claudette
attested that she found out she was listed as a co-owner shortly
before the accident, and although she tried to remove her name from
the title, she could not. Bobbie Sr. attested that he did not know
until after the accident that Claudette was listed on the title as
a co-owner. Both affied they did not know until they were served
with the complaint that anyone would consider Bobbie Sr. to have
been an owner of the vehicle.
In addition, there was no evidence permitting reasonable
persons to infer that Bobbie Jr.'s parents in fact had control over
their eighteen-year-old son such that they could have prevented him
from driving the vehicle. [Fn. 3] See Peterson v. Halsted, 829
P.2d 373, 379-80 (Colo. 1992) (holding that co-owner father had no
control over his twenty-five-year-old daughter's car for negligent
entrustment purposes); compare McCart, 641 P.2d at 388 (concluding
that co-owner father had control over his seventeen-year-old son's
Some courts have held that co-owners have equal rights of
control over a vehicle. See Zedella, 650 N.E.2d at 1004 ("[O]ne
co-owner does not have a superior right of control over a vehicle
compared to another co-owner."); Neale, 585 A.2d at 201.
Nonetheless, assuming Neary is correct in arguing that Claudette
was a co-owner of the Pathfinder, that status alone would not have
given her sufficient control over the vehicle for negligent
entrustment liability because there is no evidence reasonably
permitting an inference that she could have lawfully or practically
prevented Bobbie Jr. from operating the Pathfinder.
Neary argues that Claudette could have asserted her
rights in the vehicle. He suggests that Claudette could have asked
Bobbie Jr. for the keys, asked him to stop driving, asked him to
park the vehicle, had the vehicle towed from Bobbie Jr.'s
residence, or transferred his ownership in the Pathfinder to her or
To assume she could have done such things assumes that
she had what she did not have: any control over the vehicle or her
son. She unsuccessfully asked him to take her name off the title.
According to the affidavit of a representative of DMV, a person in
Claudette's position could not remove her name from the title
without her son's "cooperation and active participation." There is
no evidence that she had any ability or authority to take his name
off the title, take the keys from him, have the vehicle towed, or
sell the vehicle to a third person. Even if Claudette was a co-
owner, she would not have had the authority to take those measures.
See Neale, 585 A.2d at 201 (stating that, when two spouses own a
car, "neither ordinarily has the power to permit or prohibit the
other from using the vehicle").
The dissent suggests that a genuine issue of material
fact remains as to Claudette's possible superior control over the
vehicle. Dissent at 18-19. The dissent reasons that Claudette, as
the only licensed record owner, "had a clear legal right to prevent
the car's illegal use by her son and an obvious interest in doing
so." Dissent at 19. We respectfully disagree. Assuming that the
application, registration, and title created a genuine issue of
material fact about whether Claudette was a co-owner with Bobbie
Jr., there is no evidence that she had any authority to prevent him
from possessing the keys and the vehicle on the date of the
accident. The dissent appears to assume that she could have
prevented him from driving, but it does not explain how one co-
owner can lawfully prevent another co-owner from possessing or
driving the vehicle. Nor does it explain how a person who
disclaims ownership and whose ostensible co-ownership derives only
from the title documents she disputes has a superior right of
control sufficient to take the vehicle from the person listed on
the documents as co-owner. It was not illegal for Bobbie Jr. to
possess the vehicle or the keys. Informing the police of incipient
vehicular violations (operating without a license or insurance) or
swearing out a misdemeanor complaint would not have given Claudette
possession or deprived Bobbie Jr. of access. See Neale, 585 A.2d
at 200-02 (explaining that insured wife had no power to prohibit
her uninsured husband from driving the car that the couple co-
owned, even though liability insurance was required by state law).
Neary refers to Claudette's deposition, in which she
testified that Bobbie Jr. had previously returned cars either
spontaneously or when asked to do so, and that she had taken
another vehicle away from him. Neary argues that this is evidence
that she could have controlled use of the Pathfinder. This
evidence, however, pertained to a Plymouth the parents undisputably
owned (and which Bobbie Jr. borrowed without permission and
apparently returned spontaneously), and to another car he had
purchased and driven without his parents' permission. He had
hidden that car and parked it in a nearby neighborhood. Bobbie Jr.
was not yet eighteen and was still living at home when those events
took place. He was eighteen when he bought the Pathfinder, was no
longer living at home, was difficult to contact, made only brief
visits to his parents' home, did not spend the night there (except
on July 30, after the accident), and did not park the Pathfinder
The evidence cited by Neary is insufficient to raise a
genuine fact dispute about Claudette's ability to control the
Pathfinder or her son's use of it.
Attempting to show that the parents had a superior right
to control the Pathfinder, Neary argues that a jury could find that
both parents were actually the titleholders. The application for
title and registration lists the owners as "Bobbie L. McDonald"and
"Claudette M. McDonald." The application lists Bobbie Jr.'s date
of birth and social security number (although the last digit of
that nine-digit number is incorrect); it does not contain Bobbie
Sr.'s birth date or social security number. The listed birthday is
not remotely similar to Bobbie Sr.'s; the listed social security
number contains only one number, the first, in common with Bobbie
Sr.'s. However, the application gives Bobbie Sr.'s home address as
the owner's mailing address.
Neary's argument fails. The application, registration,
and title strongly indicate that Bobbie Jr., not Bobbie Sr., was
the owner because the identifying data -- the date of birth and the
social security number -- were those of Bobbie Jr., not Bobbie Sr.
The parents also affied that they recognized their son's signature
on the title application. Neary does not explain why the
application would bear Bobbie Jr.'s date of birth, social security
number, and signature if Bobbie Sr. were the true owner. The only
indication on the application that Bobbie Sr. was an owner -- the
parents' home address -- is insufficient to give rise to a
permissible inference that Bobbie Sr. was an owner.
Because Bobbie Sr. was not even a co-owner, there is no
theoretical basis for finding that he could have prevented Bobbie
Jr. from driving the Pathfinder. Because Claudette was at most a
co-owner with her son, and because co-owners have equal rights of
control, she could not have lawfully prevented her son from driving
the Pathfinder. Absent a superior right to control their son's use
of the vehicle, neither parent could be liable for negligent
C. Did the Parents Supply the Vehicle?
Neary argues that neither Bobbie Jr. nor his parents have
explained the financing of the vehicle. Neary asserts that Bobbie
Jr.'s parents likely contributed to the purchase, and therefore may
be liable for supplying the Pathfinder to Bobbie Jr. Neary also
contends that the parents were negligent in failing to insure the
The parents argue that they did not finance their son's
purchase of the Pathfinder. They also argue that, never having had
possession of the Pathfinder, they never could have given its
possession or entrusted it to their son. They explain that they
could not have insured the vehicle for Bobbie Jr.'s use.
Negligent supply or transfer is an essential element of
negligent entrustment. In a typical case, a parent, who knew or
had reason to know that the donee's use of the vehicle could
reasonably be expected to cause injury, provides a vehicle for the
donee's use. Kahlenberg v. Goldstein, 431 A.2d 76 (Md. 1981)
(holding that the donor father had negligently entrusted the
automobile to his son). If the parent only partially assists in
the purchase of a car for a child, who is an adult, the courts are
less likely to find the parent liable. See Zedella, 650 N.E.2d at
1001-02 (holding co-owner father not liable, though he cosigned
loan and occasionally gave money to twenty-three-year-old son for
car and insurance payments). The only evidence -- the parents'
affidavits and the title papers -- is consistent with their
arguments, and would not permit a reasonable inference that they
supplied the vehicle to their son.
Neary argues that the parents must have negligently
supplied the vehicle to Bobbie Jr., given that Bobbie Jr. did not
earn enough money to pay for it himself. No evidence traced the
cash used to buy the Pathfinder. The parents provided some of
their bank records, which show no withdrawals large enough to pay
for the Pathfinder. Both parents unequivocally stated in
affidavits that they did not help their son buy the Pathfinder.
The party opposing summary judgment "is required . . . to
set forth 'specific facts showing that he could produce evidence
reasonably tending to dispute or contradict the movant's evidence
and thus demonstrate that a material issue of fact . . . exists.'"
Hildebrandt, 863 P.2d at 245 n.6 (citations omitted). Neary did
not adduce specific facts tending to show that the parents
purchased the Pathfinder for their son or otherwise provided it for
his use. Neary therefore did not demonstrate any genuine issue of
material fact regarding the financing or supply of the Pathfinder.
Neary also claims that the parents negligently failed to
insure the vehicle. It is not apparent how this assertion relates
to a negligent entrustment claim. Other than one sentence in the
brief, Neary provides no further discussion of the issue. This
theory is insufficiently briefed for our consideration. See, e.g.,
Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska
D. Can the Issue of Negligent Entrustment Be Decided on
Neary argues that negligent entrustment issues cannot be
decided on summary judgment, because negligence issues normally
present fact questions.
As a general rule, issues of negligence are not
appropriate for summary judgment. See Maddox v. River & Sea
Marine, Inc., 925 P.2d 1033, 1035, 1040 (Alaska 1996) (reversing
summary judgment, finding fact issues remained regarding
negligence). The rationale for this rule is
the elusive nature of the concept of
negligence, the determination of the existence of which requires
the forming of a judgment as to the reasonableness of the conduct
of the parties in the light of all the circumstances of the case.
If reasonable minds could draw different inferences and reach
different conclusions from the facts the issue must be reserved for
Webb v. City of Sitka, 561 P.2d 731, 735 (Alaska 1977) (citations
This case differs from the typical negligence case
because the legal questions presented here do not turn on whether
the parents acted reasonably. Absent any evidence that they had
any ability to control use of the vehicle, or that they supplied it
to their son, a fact finder need never consider the reasonableness
of their conduct under a negligent entrustment theory. Absent a
genuine fact dispute about the control and supply elements, the
claim can be decided as a matter of law. The superior court did
not err in entering summary judgment on the negligent entrustment
Because there was no evidence creating a genuine issue of
material fact about the parents' ability to control the Pathfinder
or about whether they supplied it to their son, we AFFIRM the
summary judgment. BRYNER, Justice, dissenting in part.
I disagree with the court insofar as it concludes that
there is no evidence creating a genuine issue of material fact as
to Claudette McDonald's negligent entrustment of the Nissan
Pathfinder to her son, Bobbie McDonald, Jr.
There was sufficient evidence here to create a genuine
issue of fact as to Claudette McDonald's right to control the car:
under AS 28.10.261(a), her name on the car's registration and
certificate of title are "prima facie evidence of [her] ownership
or right to possession." In granting summary judgment against
Neary, the trial court concluded that the McDonalds' unanswered
affidavits professing their lack of actual ownership and right to
possession rebutted this presumption and left no jury question.
This conclusion is simply incorrect. Under Evidence Rule 301,
evidence that rebuts a statutory presumption such as the one
established in subsection 261(a) actually creates a jury issue as
to the presumed fact -- a fact that would otherwise be conclusively
established by the presumption: "When the burden of producing
evidence to meet a presumption is satisfied, the court must
instruct the jury that it may, but is not required to, infer the
existence of the presumed fact from the proved fact[.]" A.R.E.
This court skirts the point by finding that there is "no
evidence creating a genuine issue of material fact about whether
[Claudette] had a superior right of control over the vehicle." Op.
at 9 (emphasis added). The court reasons that, as a mere co-owner
with her son, Claudette's right of control was at most equal to
Bobbie Jr.'s. Op. at 14.
In my view, however, a genuine issue as to superior
control arises here from undisputed record evidence that Bobbie Jr.
is not and never has been a licensed driver. Because Bobbie Jr.
had no license to drive, his right to possess and control his new
car was severely limited; Claudette admitted that she knew of his
unlicensed status. Reading the record in the light most favorable
to Neary, it supports a finding that Claudette was a licensed
driver. As a licensed driver, Claudette was subject to no similar
limitations. As between the two record owners, then, Claudette was
the only one who was entitled to drive the car; in her capacity as
co-owner, she also had a clear legal right to prevent the car's
illegal use by her son and an obvious interest in doing so.
Given these circumstances, if the jury found Claudette to
be a genuine co-owner -- a question of fact placed in genuine
dispute for summary judgment purposes by the statutory presumption
stemming from Claudette's name on the Pathfinder's registration --
it could also reasonably find that she had the right and the
ability to control the car herself and to prevent Bobbie Jr. from
using it. Thus, when viewed in the light most favorable to Neary,
the record contains sufficient evidence to raise a genuine issue of
material fact as to Claudette's superior right of control and to
support a finding of liability against her.
I would accordingly reverse the summary judgment order as
to Claudette McDonald.
We review a grant of summary judgment using our independent
judgment. K & L Distribs., Inc. v. Kelly Elec., Inc., 908 P.2d
429, 431 (Alaska 1996). Summary judgment is to be granted only
when the record indicates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law. Alaska R. Civ. P. 56(c); Cozzen v. Municipality
of Anchorage, 907 P.2d 473, 475 (Alaska 1995). In considering a
motion for summary judgment, both the trial court and the reviewing
court must draw all reasonable inferences from the evidence in
favor of the non-moving party. Loeb v. State ex rel. Estate of
Arrowwood, 894 P.2d 642, 644 n.2 (Alaska 1995).
AS 28.10.261 states, in part:
(a) In a civil or criminal proceeding,
when the title or right to possession of a vehicle is involved, the
record of registrations and certificates of title as they appear in
the files and records of the department are prima facie evidence of
the ownership or right to possession. Proof of ownership or right
to possession of a vehicle shall be made by a copy of the record
certified by the department or by an original certificate of
registration or title issued by the department.
The age of majority is eighteen. See AS 25.20.010, which
A person is considered to have arrived at
majority at the age of 18, and thereafter has control of the
person's own actions and business and has all the rights and is
subject to all the liabilities of citizens of full age, except as
otherwise provided by statute.