In Dao v. Garcia Ex. Rel. Salinas, a man borrowed the defendant’s car to pick up his friend at a restaurant. The defendant and the man were former roommates, friends, and business associates. On the day that the man borrowed the defendant’s car, she’d had dinner with the man and fallen asleep at his apartment. While she was sleeping, he took her keys and drove her car to get his friend at the restaurant. While at the restaurant, he drank part of a glass of wine, one of several he’d consumed that day.
As the man and the friend left the restaurant in the car, they started to go the wrong way on a one-way street. The man then tried to drive across the street to go into a driveway. At that point, Rojelio Salinas came down the street in his moped, and the defendant crashed into him. Salinas died from his injuries. His estate sued the man, the defendant, the restaurant, and another party for negligence.
Included in the causes of action was a claim against the defendant for negligent entrustment. The jury found that the defendant, the man, and the restaurant were negligent, awarding $737,000 in damages. The jury apportioned damages with 10% to the defendant, 5% to the restaurant, and 85% to the man. The court ordered that the defendant and the man were jointly and severally liable for $700,150. The defendant filed a motion for new trial, which was denied on the grounds that it was against the operation of law.
On appeal, the defendant argued that the plaintiff hadn’t presented enough evidence for the jury to find negligent entrustment. To show negligent entrustment, the plaintiff had to prove: (1) the defendant entrusted her car to the driver; (2) the driver was unlicensed, reckless, or incompetent; (3) at the time of entrusting the car, the defendant knew or should have known that the driver was incompetent, reckless, or unlicensed; (4) the driver was negligent at the time of the accident; and (5) the driver’s negligence was the legal cause of the crash.
The defendant argued there wasn’t enough evidence to support the elements of (1) entrustment and (2) that she knew or should have known of the driver’s incompetence, recklessness, or lack of license. With regard to the first of these elements, she argued that there was no evidence she gave the driver express or implied permission to use the car. She was sleeping at the time he took it.
The appellate court explained that implied permission is based on the parties’ use and practice over the period of time before the accident. While the defendant argued that she’d only ever loaned her car to the man for specific business purposes, the plaintiffs argued that there was a very close relationship between them and that she’d let him borrow the car on occasions that were not related to business. The court found there was legally sufficient evidence that she’d given him implied consent to drive the car.
With regard to the other element, the defendant argued that she didn’t know or have reason to know that the man was unlicensed or intoxicated at the time of the entrustment. The appellate court explained there wasn’t a dispute that the man actually was unlicensed. The defendant testified that she only knew he didn’t have a license when she was at his criminal trial related to the same accident.
Although she was his employer, she’d never asked if he had a valid driver’s license. She argued that this was the responsibility of HR or management, and someone else was responsible for employee information. The man had testified he previously lied to the defendant that he had a driver’s license. However, the appellate court found that a jury could reasonably infer that she should have known as his employer that he didn’t have a license, particularly since they were close friends and roommates for two years.
The defendant also argued that Chapter 33.013 of the Civil Practice and Remedies Code shouldn’t have been applied to find that a defendant assigned only 10% liability could be held jointly and severally liable for all of the damages. She argued that only a defendant assigned 50% or more could be jointly and severally liable and that since she was being held derivatively liable for the driver, she’d be responsible for 85% like him, and she couldn’t also be held jointly and severally liable.
The court explained that since she was derivatively responsible for 85%, her responsibility was more than 50% as required by statute, and she could be held jointly and severally liable for the damages assessed against her and the driver (95%).
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