Before Pittman, P.j., Smith And Mills, JJ.
The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 05/23/1997
TRIAL JUDGE: HON. JOHN B. TONEY
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 2/4/1999
¶1. On January 30, 1993, William Sligh and Gene Lorance were involved in an automobile accident. William was paralyzed as a result of the accident. Gene Lorance was the son of Arthur and Edith Lorance. On September 7, 1988, Edith Lorance executed a trust agreement whereby an inter vivos trust consisting of $100,000 was created for the benefit of herself and her adult son Gene Lorance. By its terms, the trust was to continue during the lifetime of Edith Lorance and Gene Lorance, terminating on the death of the survivor of either. At that point, the trust property would vest in other beneficiaries. By the terms of the trust, First National Bank (hereinafter FNB) was appointed as trustee for the purpose of administering trust assets.
¶2. On September 29, 1989, Edith Lorance died, and pursuant to her last will and testament, all of her personal effects, jewelry, household goods and automobiles went to Gene Lorance. Her financial assets went to FNB in trust for Gene Lorance during his lifetime. As trustee for both the inter vivos and testamentary trusts, FNB was given full and complete authority to "expend all or any part of the income or corpus of said trust property for the benefit of Gene Lorance... Trustee shall exercise the powers herein granted for what may be, in the discretion of ...said Trustee, in the best interest of the said Gene Lorance, and shall pay the said Gene Lorance such sums and at such times as... said Trustee thinks in his best interest." FNB administered the combined trust assets of approximately $300,000 pursuant to the trust terms, and provided Gene Lorance a monthly stipend of $1500 to provide for his living expenses. Gene Lorance lived alone and paid his own bills.
¶3. On August 21, 1990, Gene Lorance obtained financing from FNB and purchased a 1991 Chevrolet S-10 pick-up truck from Harreld Chevrolet.
¶4. On January 30, 1993, two and one-half years after Lorance purchased the truck, Lorance was operating his truck while under the influence of alcohol when he collided head on with the vehicle being operated by William Sligh.
¶5. The complaint in this case was filed by William and Lucy Sligh against FNB and Harreld Chevrolet in the Circuit Court of Madison County, Mississippi, on September 23, 1994. On February 12, 1997, the trial court granted Harreld Chevrolet's Motion for Summary Judgment. On May 9, 1997, the trial court granted FNB's Motion for Summary Judgment. William and Lucy Sligh moved for reconsideration of both orders, which were denied by the lower court. It is from this judgment that the Slighs appeal. This is an appeal from a summary judgment predicated on the finding that there are no disputed issues of fact which could conceivably give rise to a prima facie case. The following issues are presented to this Court on appeal:
I. THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT FOR HARRELD CHEVROLET WAS ERROR.
A. HARRELD CHEVROLET IS LIABLE FOR NEGLIGENT ENTRUSTMENT.
B. HARRELD CHEVROLET IS LIABLE FOR SUPPLYING LORANCE WITH A DANGEROUS INSTRUMENTALITY.
C. THE NEGLIGENCE OF HARRELD CHEVROLET WAS A PROXIMATE CAUSE OF WILLIAM SLIGH'S INJURIES.
II. THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT FOR FIRST NATIONAL BANK WAS ERROR.
A. THE BANK'S RELATIONSHIP WITH LORANCE CREATED LEGAL DUTIES OF THE BANK.
B. THE NEGLIGENCE OF THE BANK WAS THE PROXIMATE CAUSE OF WILLIAM SLIGH'S INJURIES.
C. THE BANK IS LIABLE FOR ENTRUSTING A DANGEROUS INSTRUMENTALITY TO LORANCE.
D. THE BANK IS LIABLE FOR BREACH OF FIDUCIARY DUTIES.
¶6. The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts a de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996) (quoting Mantachie Nat. Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992)).
¶7. "The focal point of our standard for summary judgment is on material facts." Erby v North Mississippi Medical Center, 654 So. 2d 495, 499 (Miss. 1995). If the party opposing the motion is to avoid entry of an adverse judgment, he or she must bring forth evidence which is legally sufficient to make apparent the existence of triable fact issues. Id. Summary judgment is mandated where the nonmoving party fails to show evidence sufficient to establish the existence of an essential element to his case. Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss. 1996).
I. THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT FOR HARRELD CHEVROLET WAS ERROR.
¶8. The Slighs argue that Harreld Chevrolet's Motion for Summary judgment should not have been granted because Harreld is liable for negligent entrustment; Harreld is liable for supplying Lorance with a dangerous instrumentality; and Harreld was a proximate cause of William Sligh's injuries.
¶9. The Slighs contend that the trial court's holding that a seller could not be liable for negligent entrustment because it no longer owned the vehicle at the time of the accident is not and never has been the law in Mississippi.
¶10. The Slighs argue that although title had passed to Gene Lorance, this fortuitous event did not absolve Harreld of liability. Citing Kahlenberg v. Goldstein, 290 Md. 477, 431 A.2d 76 (Md. App. 1981), the Slighs argue that liability for negligent entrustment is not based upon the continued ownership of the chattel by the supplier, nor is it based upon the supplier's reservation either of the right to permit or the power to prohibit the use of the chattel. Instead, the supplier's liability is based upon his negligent entrustment when it operates together with the negligence of the user to become a concurrent cause of the injuries sustained. Id.
¶11. Further, the Slighs contend that the primary issue in this case is: What did Harreld know or have reason to know about Gene Lorance's incompetence to drive safely and the likelihood that he would operate the vehicle in such a manner as to involve an unreasonable risk of physical harm to himself or others.
¶12. The Slighs argue that they gave sufficient proof that Harreld knew, at the time of the sale, that Gene Lorance was an habitual drunkard and drug addict who suffered from mental problems; who had frequently been convicted of driving while intoxicated; and who had been involved in numerous motor vehicle accidents while drunk. Citing from the deposition of Gene Lorance, the Slighs further argue that Harreld Chevrolet should have known that Lorance was high on alcohol and crack over the two day period during which he purchased the pick-up in question from the dealership.
¶13. In their brief the Slighs offer that over sixty years ago, the Mississippi Supreme Court declared that an habitual drunkard is an incompetent driver. Slaughter v. Holsomback, 165 Miss. 161, 147 So. 318 (1933).
¶14. Since this is a case of first impression the Slighs cite cases from other jurisdictions holding that a cause of action for negligent entrustment exists against a car seller when the seller has reason to know that a prospective buyer is incompetent. See, Small v. St. Francis Hosp., 220 Ill. App. 3d 537, 163 Ill. Dec. 203, 581 N.E. 2d 154 (1991).
¶15. The Slighs contend that liability for negligent entrustment turns upon what the seller knew or should have known regarding the likelihood that the buyer would use the product entrusted to the detriment of another. Further, they contend that they have created a genuine issue as to what knowledge Harreld, through its agents and ...