Victor Mercaldo and Nancy Jenkins, individually and as Parents and Natural Guardians of Kelly P. Mercaldo, Minor Child v. Andrew Hagenow and Alyssa R. Brown

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, May 05 2014, 9:58 am
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
ROBERT D. BROWN MATTHEW J. HAGENOW
Kenneth J. Allen Law Group Newby, Lewis, Kaminski & Jones, LLP
Valparaiso, Indiana LaPorte, Indiana

IN THE
COURT OF APPEALS OF INDIANA

VICTOR MERCALDO and NANCY JENKINS, )
individually and as Parents and Natural )
Guardians of KELLY P. MERCALDO, )
Minor Child, Deceased )
)
and )
)
MAGEN M. SINGLETON, ALLEN )
SINGLETON and SHARI SINGLETON )
)
Appellants-Plaintiffs, )
)
vs. ) No. 64A04-1311-CT-579
)
ANDREW HAGENOW and ALYSSA R. )
BROWN, )
)
Appellees-Defendants. )

APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Special Judge
Cause No. 64D01-0902-CT-1777

May 5. 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
 Victor Mercaldo and Nancy Jenkins, individually and as the parents and natural

guardians of Kelly P. Mercaldo (“Kelly”), along with Magen M. Singleton (“Magen”),

Allen Singleton, and Shari Singleton (collectively “the Plaintiffs”), brought a claim for

wrongful death and personal injury against Andrew Hagenow (“Hagenow”) after Magen

was injured and Kelly was killed in an automobile accident involving a vehicle owned by

Hagenow and driven by their friend Alyssa Brown (“Alyssa”). The trial court granted

Hagenow’s motion for summary judgment, and the Plaintiffs appeal, claiming that there

was a genuine issue of material fact regarding whether Hagenow negligently entrusted his

vehicle to Alyssa.

We affirm.

Facts and Procedural History

On the evening of October 3, 2008, eighteen-year-old Alyssa Brown, seventeen-

year-old Magen, and sixteen-year-old Kelly went to the house of twenty-one-year-old

Hagenow. Alyssa drove Magen and Kelly to Hagenow’s house in her Volkswagen Jetta.

Hagenow offered the girls a beer, and Kelly and Magen each drank one beer. There is no

indication, however, that Alyssa drank any alcohol or was otherwise impaired. While at

Hagenow’s home, the parties listened to music and “h[u]ng out.” Appellant’s App. p.

281.

At some point in the evening, Alyssa asked Hagenow if she could drive his car, a

2008 Ford Mustang, to meet her boyfriend. Alyssa planned to take Magen and Kelly

with her and drop Kelly off before returning to Hagenow’s house. Hagenow declined

Alyssa’s first two requests to drive his car. According to Magen, Hagenow told Alyssa

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that he did not want her to drive the car because it was “too powerful, too fast, and he did

not think she could drive it safely.” Appellant’s App. p. 293. Alyssa had, however,

driven Hagenow’s car in the past without incident. When Alyssa asked a third time,

Hagenow did not refuse, but stated that he needed to see if the car had enough fuel. The

parties then walked outside to the car, where Hagenow checked the fuel gauge and threw

his keys to Alyssa.

Alyssa, Magen, and Kelly then got in the car, which had been parked in a gravel

driveway. Alyssa accelerated the car quickly, spinning the rear tires and throwing gravel

as she took off. Alyssa quickly drove down the long driveway and again spun the wheels

of the car and threw up gravel. Alyssa then drove the car on a county road where the

posted speed limit was thirty-five miles per hour. Alyssa, however, was travelling in

excess of eighty miles per hour. As the car approached a stop sign near the intersection

of the road and a railroad track, Alyssa stated her intention to “jump” the tracks. She

disregarded the stop sign and hit the tracks at approximately seventy-six miles per hour.

This caused the car to go airborne for over seventy-seven feet. When the car landed,

Alyssa lost control, and the vehicle went into a ditch and struck a tree. Magen was

seriously injured in the accident, and tragically, Kelly was killed.

On February 24, 2009, Kelly’s parents filed suit against Hagenow and Alyssa,

claiming that Hagenow negligently entrusted his vehicle to Alyssa and that Alyssa

negligently operated the vehicle. The complaint was subsequently amended to include

Magen and her parents as additional plaintiffs. On April 19, 2010, Hagenow filed a

motion for summary judgment. After receiving several extensions of time, the Plaintiffs

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responded to Hagenow’s motion on July 17, 2013. The court held a summary judgment

hearing on October 24, 2013, and issued an order granting Hagenow’s motion for

summary judgment on November 6, 2013. The Plaintiffs now appeal.

Summary Judgment Standard of Review

Our standard for reviewing a trial court’s order granting a motion for summary

judgment is well settled: a trial court should grant a motion for summary judgment only

when the evidence shows that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand, 963

N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citing Ind. Trial Rule 56(C)). The trial court’s

grant of a motion for summary judgment comes to us cloaked with a presumption of

validity. Id. “‘An appellate court reviewing a trial court summary judgment ruling

likewise construes all facts and reasonable inferences in favor of the non-moving party

and determines whether the moving party has shown from the designated evidentiary

matter that there is no genuine issue as to any material fact and that it is entitled to

judgment as a matter of law.’” Id. (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d

184, 186 (Ind. 2010)). However, a de novo standard of review applies where the dispute

is one of law rather than fact. Id. On appeal, we examine only those materials designated

to the trial court on the motion for summary judgment, and we must affirm the trial

court’s entry of summary judgment if it can be sustained on any theory or basis in the

record. Id.

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 Discussion and Decision

The Plaintiffs claim that there was a genuine issue of material fact with regard to

whether Hagenow negligently entrusted his vehicle to Alyssa, thereby precluding

summary judgment. Generally, when an instrumentality passes from the control of a

person, his responsibilities for injuries inflicted by it ceases. Johnson v. Patterson, 570

N.E.2d 93, 96 (Ind. Ct. App. 1991) (citing 79 Am.Jur.2d Weapons & Firearms § 38

(1975)). An exception to this general rule is the concept of negligent entrustment, i.e.

“where the instrument is entrusted to one who is incompetent or irresponsible or who

lacks the capacity to safely use or operate the instrumentality.” Id. (citing 57A Am.Jur.2d

Negligence § 329 (1989)). Although the concept of negligent entrustment has usually

been applied to cases involving motor vehicles, its applicability does not depend on the

nature of the chattel or instrumentality, but on the supplying of the chattel for probable

negligent use. Id.

To support a claim of negligent entrustment of a vehicle, the plaintiff must

demonstrate that the defendant: (1) entrusted his vehicle; (2) to an incapacitated person or

one who is incapable of using due care; (3) with actual and specific knowledge that the

person is incapacitated or incapable of using due care at the time of the entrustment; (4)

proximate cause; and (5) damages. Williams v. Safe Auto Ins. Co., 980 N.E.2d 326, 329

(Ind. Ct. App. 2012); see also Johnson v. Owens, 639 N.E.2d 1016, 1022 (Ind. Ct. App.

1994) (holding that, for liability to attach under a theory of negligent entrustment, “a

‘must have actual and immediate knowledge of the driver’s unfitness to drive at the time

of the entrustment.’”) (quoting Sutton v. Sanders, 556 N.E.2d 1362, 1365 (Ind. Ct. App.

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1990)). In most negligent entrustment cases, the driver’s unfitness typically refers to

intoxication or youth. Owens, 639 N.E.2d at 1022. More generally stated, a person is

incompetent to drive if she is incapacitated, uninstructed in the vehicle’s use, or

unfamiliar with the dangers of using the vehicle. Roessler v. Milburn, 692 N.E.2d 1377,

1379 (Ind. Ct. App. 1998).

The Plaintiffs insist that they designated evidence sufficient to create a genuine

issue of material fact with regard to whether Hagenow acted negligently when he

permitted Alyssa to drive his car. Specifically, they focus on Magen’s affidavit in which

she averred that Hagenow told Alyssa that he did not want her to drive the car because it

was “too powerful, too fast, and he did not think she could drive it safely.” Appellant’s

App. p. 293. In contrast, Hagenow designated evidence indicating that Alyssa had driven

the car in the past without incident and that Alyssa was not intoxicated or otherwise

impaired.

Viewing all the designated evidence in the light most favorable to the Plaintiffs, as

the non-moving parties, we still come to the conclusion that the Plaintiffs’ designated

evidence is insufficient to establish a genuine issue of material fact on the issue of

whether Hagenow is liable under a theory of negative entrustment. Even if Hagenow

expressed a concern that his car was “too powerful” or “too fast” there is nothing that

shows that he had actual and immediate knowledge that Alyssa was “incapacitated” or

incapable of using due care. With regard to incapacitation, there was no evidence that

Alyssa was intoxicated, ill, or otherwise incapable of driving the car. To the contrary,

there was evidence that she had not been drinking and did not otherwise appear to be

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incapacitated. There was also no evidence that Hagenow had actual and immediate

knowledge that Alyssa was incapable of using due care. Although Hagenow may have

expressed concern about her ability to drive the car, she had, in fact, driven the car before

without incident. The fact that Alyssa later drove the car without exercising due care

does not mean that she was incapable of exercising due car. We therefore conclude that

the trial court properly concluded that there was no evidence that Hagenow had actual

and immediate knowledge that Alyssa was incapacitated or incapable of exercising due

care when he entrusted her with his vehicle.

We also reject the Plaintiffs’ suggestion that Hagenow should have contacted

Alyssa after she did a “burn out” at the end of the driveway and warned her about the

capabilities of the car or told her to return. The fact that Alyssa spun the tires on the car

as she drove down the driveway does not establish that Hagenow had actual and

immediate knowledge that Alyssa was incapable of using due care. Indeed, she had

driven the car in the past without incident. Further, this behavior occurred after Hagenow

entrusted Alyssa with the car. Negligent entrustment requires actual and immediate

knowledge of the driver’s unfitness to drive at the time of the entrustment. Alyssa’s

behavior in the car occurred after the entrustment. And we are not inclined to extend the

concept of negligent entrustment to require remedial behavior on the part of the

defendant after the entrustment has occurred.

Conclusion

Viewing the designated evidence in the light most favorable to the Plaintiffs, they

failed to designate evidence sufficient to create a genuine issue of material fact with

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regard to the question of whether Hagenow negligently entrusted his vehicle to Alyssa.

Accordingly, the trial court properly granted summary judgment in favor of Hagenow.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.

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