Swicegood v. Cooper , 113 N.C. App. 802 ( 1994 )

GREENE, Judge.

Carol Inman Cooper (defendant) appeals from judgment entered 20 January 1993 in favor of Clarence Edward Swicegood, Jr. (plaintiff), in this action for damage to personal property.

On 1 April 1992, defendant was involved in an automobile accident with a car driven by Reggie Swicegood (plaintiffs son) and owned by plaintiff. As defendant was driving her Plymouth van west on Brassfield Road through the intersection of Honeycutt Road, her van was struck in the right rear wheel area by plaintiffs automobile, which Reggie Swicegood was driving south on Honeycutt Road.

At the time of the accident, Reggie Swicegood, age twenty-five, did not live with plaintiff, although he was driving plaintiffs automobile with plaintiffs permission. Testimony established that he had driven plaintiffs automobile on several previous occasions.

Plaintiff brought this suit to recover for damages to his automobile. Prior to trial, the trial court granted plaintiffs motion in limine to prohibit any evidence regarding the issue of negligent entrustment. Defendant, during her offer of proof submitted Reggie Swicegood’s driving record, which revealed that, between 1986 and 1991, Reggie Swicegood had been convicted of six separate speeding violations, ranging from a high of traveling seventy-five miles per hour in a sixty-five mile per hour zone to a low of forty miles per hour in a thirty-five mile per hour zone. He had also been convicted of three safe movement violations. On one occasion in 1988 his license was suspended for a sixty-day period for accumulating more than twelve driving license points. Defendant also tendered the testimony of plaintiff that plaintiff was aware only of two of his son’s violations of the motor vehicle law, namely two of the safe movement violations. Plaintiff testified that he was not aware that his son’s license had been suspended.

Defendant’s request to submit negligent entrustment to the jury was denied by the trial court. The trial court submitted only the following issue to the jury:

1. Was the plaintiff, Clarence Edward Swicegood, [J]r., damaged by the negligence of the defendant, Carol Inman Cooper?

The jury answered this issue “yes” and awarded plaintiff $8,000. On the bottom of the jury verdict form the jury wrote: “We also feel that Mr. [Reggie] Swicegood was guilty of speeding & was partly responsible for this accident.”

The determinative issue presented is whether the evidence tendered by defendant on the issue of negligent entrustment supported submitting that issue to the jury.

In North Carolina, the owner of an automobile “who entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver” who is “likely to cause injury to others in its use” is liable to third parties for injuries caused by the borrower’s negligence. Dinkins v. Booe, 252 N.C. 731, 735, 114 S.E.2d 672, 675 (1960); Roberts v. Hill, 240 N.C. 373, 377, 82 S.E.2d 373, 377 (1954). Likewise, under the doctrine of contributory negligence, the owner of an automobile who is negligent in the entrustment of his automobile to another is barred from recovering for damages to his automobile caused by a negligent third party while the automobile was being operated by the borrower.

The cases are not particularly helpful in providing guidance as to what qualifies the borrower as “incompetent or reckless.” In Dinkins, the Supreme Court held that evidence that the owner knew that the borrower had been involved in several automobile accidents and had been convicted of driving without his license was sufficient to present a jury question as to negligent entrustment. Dinkins, 252 N.C. at 735, 114 S.E.2d at 675. Evidence that the borrower of the owner’s automobile did not have a driver’s license and had not been given adequate driving instructions was held adequate to support submission of negligent entrustment in a Michigan case. Shepherd v. Barber, 174 N.W.2d 163, 164 (Mich. App. 1969). A Louisiana case held that evidence that, the borrower suffered from severe emotional disorder and was under the influence of drugs was sufficient to support negligent entrustment. Frain v. State Farm Ins. Co., 421 So. 2d 1169, 1173 (La. Ct. App. 1982).

In this case, even if we assume plaintiff knew of his son’s complete record of traffic violations, it would have been error to submit the issue of negligent entrustment to the jury. Traffic violations of the type and frequency as shown in this case cannot support a conclusion that the son was an incompetent or reckless driver likely to cause harm to others in the operation of the plaintiffs motor vehicle. See McFetters v. McFetters, 98 N.C. App. 187, 390 S.E.2d 348 (substantial evidence needed to support submission of issue to jury), disc. rev. denied, 327 N.C. 140, 394 S.E.2d 177 (1990). Thus, the trial court correctly refused to submit the issue of negligent entrustment to the jury.

No error.

Judge ORR concurs. Judge COZORT dissents.