United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 1998 Decided April 21, 1998
No. 95-7225
Thomas P. Athridge, Sr., et al.,
Appellants
v.
Hilda Rivas, trading as
Churreria Madrid Restaurant,
Appellee
No. 95-7226
Thomas P. Athridge, Sr., et al.,
Appellants
v.
Aetna Casualty & Surety Company,
Appellee
---------
No. 95-7227
Thomas P. Athridge, Sr., et al.,
Appellants
v.
Jesus Iglesias, et al.,
Appellees
No. 95-7228
Thomas P. Athridge, Sr.,
Individually and as Father and
Next Friend of Thomas P. Athridge, Minor,
Appellant
v.
Jorge Iglesias, et al.,
Appellees
Appeals from the United States District Court
for the District of Columbia
(No. 89cv01222)
(No. 92cv01866)
(No. 92cv01867)
(No. 92cv01868)
William J. Rodgers argued the cause for appellants.
Charles B. Long was on brief.
Paul R. Pearson argued the cause for appellees Jesus and
Alicia Iglesias. Irving Starr entered an appearance.
David F. Grimaldi argued the cause for appellees Rivas
and Churreria Madrid Restaurant.
Roger W. Heald was on brief for appellee Aetna Casualty &
Surety Co.
Before: Ginsburg, Henderson and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Plaintiffs Tom-
my Athridge (Tommy) and his father Thomas P. Athridge,
Jr., appeal the district court's grant of summary judgment to
the defendants in a civil action arising from an automobile
accident in which Tommy was seriously injured. We affirm
the grant of summary judgment to defendants Jesus and
Alicia Iglesias and their insurer, the Aetna Casualty & Surety
Company (Aetna), and reverse and remand with respect to
defendants Francisco and Hilda Rivas and the Churreria
Madrid Restaurant for the reasons set forth below.
I.
On July 29, 1987 defendant Alicia Iglesias sent her
16-year-old son, Jorge, (Jorge) to mow the lawn at the
residence (located in the District of Columbia) of his cousins,
defendants Francisco and Hilda Rivas, who were out of town
at the time. While at the Rivases', Jorge entered their house
through an open window, found the keys to the Rivases'
manual transmission VW Jetta on a kitchen windowsill and
decided to drive the car. The Jetta was registered to Fran-
cisco Rivas and to the restaurant he owns, defendant Churre-
ria Madrid Restaurant.
Jorge and his friend, James Ko, drove the Jetta to a local
mall where they met up with Tommy, John Thornburg and
several other friends at about noon. Jorge drove Tommy,
Thornburg and some of the other teenagers to the house of
another friend, Erin Rupp, for a pool party. Jorge, Thorn-
burg and Ko left the party in the Jetta an hour later. As
Jorge was driving away, however, Thornburg noticed that
Tommy's school books were still in the car. Jorge then
turned the car around and drove back toward Rupp's house,
stopping at a stop sign approximately 440 feet from the
house. Jorge then began to accelerate towards the Rupp
house. Tommy, who was with a group of people in the Rupp
driveway, moved into the street and began waving his arms in
an apparent attempt to stop the car. Jorge, however, contin-
ued to accelerate towards Tommy, reaching a speed of ap-
proximately 40 mph. Tommy remained in the middle of the
road. At the last moment, Tommy tried to leap out of the
way but Jorge swerved in the same direction. The Jetta
struck Tommy and threw him against the windshield. The
car then swerved, ran onto a neighbor's lawn, struck a large
rock, became airborne and eventually landed in a ravine
where it hit two trees. Tommy sustained multiple injuries,
including extensive skull fracture and permanent brain injury.
On May 4, 1989 Tommy and his father filed a diversity 1
suit against Jorge (as operator of the vehicle) and Francisco
Rivas and Churreria Madrid Restaurant (as registered own-
ers of the vehicle), alleging that Jorge's negligence caused
Tommy's injuries. On October 21, 1991 Francisco Rivas and
his restaurant moved for summary judgment, asserting that
Rivas had not given Jorge permission to drive the car. The
plaintiffs opposed the motion on the ground that the "permis-
sive use" issue involved disputed facts and was only one of
several bases of liability. On February 24, 1992 the district
court denied the motion.
In August 1992 the plaintiffs moved for leave to file an
amended complaint and also filed three new actions: (1) one
against Hilda Rivas, who was not named in the original
action, on theories of agency and negligence; (2) one against
Jorge's parents, Jesus and Alicia Iglesias, on theories of
agency, negligence and negligent entrustment; and (3) one
against Aetna, the Iglesiases' insurer. The district court
consolidated the three new actions with the original lawsuit.
The Iglesiases then moved for summary judgment and Aetna
__________
1 The Athridges are residents of the state of Maryland; the
Rivases are residents of the District of Columbia.
subsequently joined the motion. The district court set a pre-
trial conference for October 22, 1992. The parties attended
but there is no record of the proceedings. The plaintiffs'
counsel maintains that he was instructed by the district court
to be prepared at the next hearing, scheduled for November
16, 1992, to "show that they were entitled to get to a jury" by
submitting "an opening statement ..., a proffer of evidence,
showing sufficient facts that would entitle them to get to a
jury." Plaintiffs' Statement of Proceeding Under Fed. R.
App. P. 10(c) at 3; JA 783. According to the plaintiffs'
counsel, the court informed him that he need not be prepared
on November 16 to establish the facts.
At the November 16 hearing the district court heard argu-
ments by the Iglesiases and Aetna on their joint motion for
summary judgment. The court also considered the Rivases'
oral motion to dismiss. The plaintiffs' counsel responded by
proffering the proposed testimony of Thornburg, who would
testify that before the incident Jorge had bragged about
having driven cars in the past, including a Porche owned by
the Rivases. The proffer was oral because, as the Athridges'
lawyer explained to the court:
There is no pending motion for summary judgment as to
[the Athridges'] claims on [sic] the Rivases. There has
not even been an answer filed on the Hilda Rivas newer
case. And I am kind of caught between a rock and a
hard place on that one, because had I been opposing a
formally filed motion for summary judgment, which I did
on a previous occasion, having to do with permissive
use--had I been opposing that today, which is not really
before the Court, I would have, obviously, been com-
pelled to produce affidavits, testimony or otherwise.
I came in under the posture that I am to proffer evi-
dence, which I stand by my proffer of what the evidence
will be, but there is no pending motion for summary
judgment.
So, consequently--and I have disclosed if I may, because
I want to be abundantly clear. I don't want to be
thought of as having misled the Court or counsel.
Had I believed that it was in a different posture, then we
could have done that, but what we have done today is
simply a proffer of evidence. And I have disclosed the
existence of these people. This is my work product.
And that there are no depositions is not my problem or
my fault.
11/16/92 Proceedings Tr. 43:20-44:16.
By order filed July 19, 1995 the district court dismissed the
claims against all defendants except Jorge, explaining that
it is apparent that Jorge Iglesias acted upon a youthful
impulse of his own. His relationship to each and every
one of the named defendants in these cases was not such
as to render any one or more of them vicariously liable
for his tortious conduct. He was not driving the car in
the service of either his own parents or their relatives, or
of the restaurant coincidentally registered as a co-owner
of the car. He had no permission to use the car from
anyone, express or implied. There is no evidence from
which it could be found that any defendant could or
should have reasonably foreseen that Jorge would com-
mit a criminal act, much less that an innocent youngster
far removed from the scene would suffer in consequence.
Athridge v. Iglesias, No. 89-1222, slip op. at 2 (D.D.C. filed
July 19, 1995).
The plaintiffs appealed and moved for an order settling the
record on appeal under Fed. R. App. P. 10(c) in order to
summarize the substance of what occurred during the Octo-
ber 22 conference. The Iglesiases and Aetna filed objections.
The district court denied the plaintiffs' motion, stating that
"the Memorandum and Order of July 19, 1992 granting
judgments from which the appeal is taken is self-explanatory"
and that "[t]he informal (and inconclusive) pretrial proceed-
ings in chambers of October 22, 1992, played no part in the
Court's decision." Athridge v. Iglesias, No. 89-1222, slip op.
at 2 (D.D.C. filed Apr. 23, 1997).
The case against Jorge proceeded to a bench trial. On
November 8, 1996 the district court held, inter alia, that
Jorge "t[ook] the car without the permission of the owner."
Athridge v. Iglesias, 950 F. Supp. 1187, 1189 (D.D.C. 1996).
The court held that Jorge "violated the duty of care to avoid
colliding with" Tommy and "was also negligent when he
operated at an excessive speed, approximately 40 mph, on a
street in a residential neighborhood." Id. at 1190. The court
found that "this excessive speed was a proximate cause of the
collision with plaintiff." Id. The court also "conclude[d] on
the basis of the evidence that plaintiff was contributorily
negligent" since "[a] reasonably prudent person would not
stand in the middle of the road when an inexperienced driver
is rapidly approaching in a vehicle." Id. at 1191. Neverthe-
less, the district court noted that "[d]espite his contributory
negligence, a plaintiff may be permitted to recover under the
last clear chance doctrine" and that Tommy was entitled to
recover since "[t]here was ample room for [Jorge] to pass
[Tommy] on either side, but [Jorge] continued directly to-
wards him." Id.
The district court entered judgment for the plaintiffs,
awarding Tommy's father $110,010.78 in damages for medical
expenses and awarding Tommy damages of $1,400,000 for
diminished earning capacity and $4,000,000 for pain and suf-
fering. Id. at 1194. On June 30, 1997 this Court summarily
affirmed the district court, explaining that Jorge "failed to
demonstrate that the district court's findings of fact were
clearly erroneous." Athridge v. Iglesias, No. 96-7261, slip op.
at 1 (D.C. Cir. June 30, 1997).
Now before this Court are the Athridges' appeals of the
district court's grant of summary judgment to the Iglesiases
and their insurer as well as its sua sponte grant of summary
judgment to the Rivases and the Churreria Madrid Restau-
rant.
II.
Summary judgment is granted if "there is no genuine issue
as to any material fact." Fed. R. Civ. P. 56(c). Our review of
a grant of summary judgment is de novo. Riddell v. Riddell
Washington Corp., 866 F.2d 1480, 1483-84 (D.C. Cir. 1989).
"While district courts possess the authority to enter summary
judgment against a party sua sponte, ... that authority may
only be exercised 'so long as the losing party was on notice
that she had to come forward with all her evidence.' "
McBride v. Merrell Dow & Pharmaceuticals, Inc., 800 F.2d
1208, 1212 (D.C. Cir. 1986) (quoting Celotex Corp. v. Catrett,
447 U.S. 317, 326 (1986)).
A.
We first consider the district court's sua sponte grant of
summary judgment to the Rivases. We reject the Rivases'
claim that the Athridges were on notice because of the
October 22, 1992 conference. We cannot determine whether
such notice was adequate because of the district court's
failure to settle the record regarding that conference. Rule
10(c) of the Federal Rules of Appellate Procedure provides:
If no report of the evidence or proceedings at a hearing
or trial was made ... the appellant may prepare a
statement of the evidence or proceedings from the best
available means, including the appellant's recollec-
tion.... Thereupon the statement and any objections or
proposed amendments shall be submitted to the district
court for settlement and approval and as settled and
approved shall be included by the clerk of the district
court in the record on appeal.
Fed. R. App. P. 10(c) (emphasis added). In addition, our
Circuit Handbook of Practice and Internal Procedures
states:
If no transcript is available, the appellant may prepare
and file with the district court a statement of the evi-
dence or proceedings from the best available means,
including recollection, and serve it on the appellee. The
appellee has ten days to serve objections or proposed
amendments in response. The district court then ap-
proves the statement as submitted or amended, and
certifies it to this Court as the record on appeal.
Handbook of Practice and Internal Procedures: United
States Court of Appeals for the District of Columbia Circuit
36-37 (1997) (emphasis added). While the appellant's deci-
sion to move for settlement of the record is discretionary,
once the motion is made the district court is obligated to act
in accordance with Fed. R. App. P. 10(c) and Circuit proce-
dure. Here, the Athridges properly filed a proposed state-
ment and served it on the appellees. The Iglesiases and
Aetna timely filed objections.2 In its curt denial of the
appellants' motion, the district court merely stated that "the
Memorandum and Order of July 19, 1992 granting judgments
from which the appeal is taken is self-explanatory" and "[t]he
informal (and inconclusive) pretrial proceedings in chambers
of October 22, 1992, played no part in the Court's decision."
Athridge v. Iglesias, No. 89-1222, slip op. at 2 (D.D.C. filed
Apr. 23, 1997).
Whether Rule 10(c) and Circuit procedure were followed is
of critical importance in determining if adequate notice was
provided to the appellants that they were to come forward
with all of their evidence at the November hearing. See, e.g.,
McBride, 800 F.2d at 1212. Moreover, we are not persuaded
by the appellees' argument that Fed. R. App. P. 10(c) is
inapplicable because the October proceeding cannot be char-
acterized as a "hearing or trial." The purpose of Fed. R.
App. P. 10(c) would be thwarted by such a narrow reading.
Indeed, "[a]ppellate consideration of the ultimate question in
a case must not be frustrated by ... failure to include in the
record preliminary proceedings which were in reality part of
the trial process, and which might be found to be of vital
significance on appeal." Gatewood v. United States, 209 F.2d
789, 792 & n.5 (D.C. Cir. 1953) (explaining this Court's sua
sponte request that trial court reporter produce transcript of
relevant pretrial proceedings "in the interest of both parties,
and of the due administration of justice").3
__________
2 The record does not reflect that the Rivases objected to the
plaintiffs' motion to settle the record.
3 Even assuming the October proceeding was a pre-trial confer-
ence but not a "hearing," Fed. R. Civ. P. 16(e) requires "[a]fter any
conference held pursuant to this rule, an order shall be entered
reciting the action."
What is clear from the record is that (1) Francisco Rivas
did not renew his summary judgment motion after his first
motion was denied in February 1992, (2) Hilda Rivas, who
was added as a defendant after Francisco and the restaurant
had moved for summary judgment, did not move for sum-
mary judgment and in fact never answered the complaint, (3)
the Athridges had no opportunity to depose Hilda or Francis-
co Rivas because the district court stayed discovery at the
October 1992 proceeding 4 and (4) the negligence claims made
against the Iglesiases (agency, negligent supervision and neg-
ligent entrustment) were different from those asserted
against the Rivases (consent) so that the fact that the Iglesi-
ases had filed a summary judgment motion did not adequate-
ly place the plaintiffs on notice that summary judgment might
be granted sua sponte to the Rivases if the Iglesiases pre-
vailed on their motion.
Rule 56 of the Federal Rules of Civil Procedure requires
that "a nonmoving party go beyond the pleadings and by [its]
own affidavits, or by the 'depositions, answers to interrogato-
ries, and admissions on file,' designate 'specific facts that
there is a genuine issue for trial.' " Celotex, 477 U.S. at 324
(quoting Fed. R. Civ. P. 56(e)); see also DKT Memorial
Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 298 (D.C.
Cir. 1989). If the Athridges had known that they faced
summary judgment with regard to the Rivases, they could
have invoked Fed. R. Civ. P. 56(f) "which allows a summary
judgment motion to be denied, or the hearing on the motion
to be continued, if the nonmoving party has not had an
__________
4 The record suggests that discovery was stayed by the district
court on October 22. The plaintiffs' assertion that the district court
informed the parties on October 22 that "no discovery or further
discovery would be allowed to anyone pending the Court's further
rulings," JA 784, was not challenged by the Iglesiases or by Aetna
in their responses to the plaintiffs' Rule 10(c) motion. See JA 784-
85, 791-93, 811-15.
opportunity to make full discovery." Celotex, 477 U.S. at 326.
Here, however, the court granted summary judgment sua
sponte in a written order well after the hearing--leaving the
appellants with no option but to appeal, on an inadequate
record, to this Court. The district court erred in granting the
Rivases summary judgment sua sponte because it is unclear
whether the district court afforded the Athridges sufficient
notice or "a full opportunity to conduct discovery." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); see also First
Chicago Int'l v. United Exch. Co., Ltd., 836 F.2d 1375, 1380
(D.C. Cir. 1988). Accordingly, we must reverse the summary
judgment as to the Rivases and remand to the district court
for further proceedings on the plaintiffs' claims against them
and the Churreria Madrid Restaurant.
B.
By contrast, the Iglesiases moved for summary judgment
in September 1992 and the appellants therefore had ample
notice of their duty to respond and sufficient time to file a
Rule 56(f) motion for additional discovery but did not. The
Athridges had advanced three bases of liability against the
Iglesiases: (1) negligent supervision because they should
have known of Jorge's history of driving without a license; (2)
negligent entrustment based on their having placed Jorge in
a position with access to car keys; and (3) agency because the
instruction to "mow the lawn" created an employer-employee
relationship. None of their claims has merit.
First, the Iglesiases are not liable for "breach of duty to
supervise" as the cases cited by the appellants themselves
demonstrate. For example, in Batemen v. Crim, the District
of Columbia Court of Appeals explained that parents are
liable for the acts of their children "where the parent has
permitted a minor to use a dangerous instrumentality, or
where they have knowingly permitted, encouraged, or failed
to discourage, conduct inherently dangerous to others or
prohibited by laws intended to promote public safety." 34
A.2d 257, 258 (D.C. 1943). In Batemen, however, the court
rejected the plaintiff's "claim[ ] that a lack of supervision,
without evidence of prior conduct requiring the exercise of
parental restraint, renders a parent responsible for acts of a
minor which with greater supervision would not have oc-
curred" because "the evidence does not show that the conduct
of the minors prior to the instant occurrence was such that
their parents, with closer supervision, would have been aware
that they were engaging in conduct which was unlawful or
which might inflict injury upon others." Id. at 258.
Here the Athridges similarly failed to demonstrate that
Jorge's parents were "aware that [Jorge was] engaging in
conduct which was unlawful or which might inflict injury upon
others." Id. They offered no evidence that Jorge's parents
knew that he had driven before the day of the accident. They
offered no evidence that the Iglesiases knew that Jorge had
access to the Rivases' house or car; rather, the evidence
indicated that the Rivases were out of town and that the
house would therefore be locked. We reject their assertion
that Jorge drove well enough to raise an inference that the
Iglesiases were aware that he could drive. Finally, the fact
that Jorge knew how to drive, and, according to the plaintiffs,
had driven a motorcycle, is insufficient to support an infer-
ence that Jorge's parents should have known that Jorge could
also drive a car. Moreover, this evidence does not support an
inference that Jorge had driven recklessly on any earlier
occasion or that his parents knew about any such reckless-
ness. In sum, "to render a parent responsible for injuries
resulting from the wrongful acts of a minor, his negligence in
the exercise of parental supervision must have some specific
relation to the act complained of, which is lacking in the
present case." Id.
We also affirm the grant of summary judgment to the
Iglesiases on the negligent entrustment claim. The Restate-
ment of Torts provides:
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 unreason-
able risk of harm to others.
Restatement (Second) of Torts s 308. This section applies
only if the third person is "entitled to possess or use the thing
or engage in the activity only by the consent of the actor."
Id. comment a. Here the plaintiffs offered no evidence that
the Iglesiases had control of the Rivases' car or that the
Iglesiases authorized their son to use it. Further, there was
no evidence presented that they knew Jorge would have
access to a car or to car keys.
Finally, the Iglesiases are not liable under the theory that
Jorge was acting as their employee. The Restatement of
Torts provides:
A master is under a duty to exercise reasonable care so
to control his servant while acting outside the scope of
his employment as to prevent him from intentionally
harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them, if (a)
the servant (i) is upon the premises in possession of the
master or upon which the servant is privileged to enter
only as his servant, or (ii) is using a chattel of the master,
and (b) the master (i) knows or has reason to know that
he has the ability to control his servant, and (ii) knows or
should know of the necessity and opportunity for exercis-
ing such control.
Id. s 317; see also International Distrib. Corp. v. American
Dist. Tel. Co., 569 F.2d 136, 139-40 (D.C. Cir. 1977) (holding
security company liable for its employees' theft at business
where it provided security).
Although the record is somewhat unclear whether Jesus
Iglesias operated a lawnmowing business, the plaintiffs pro-
duced no evidence that Jorge mowed the Rivases' lawn as
part of any business. Indeed, there is no evidence that
Jorge's father directed him to mow the lawn; instead, Mrs.
Iglesias gave the order. Nor is there any evidence that
Jorge was using a chattel of his father. Finally, as with the
negligent supervision claim, Jorge's history as a driver was
not sufficient to infer that the Iglesiases should have known
of the need to supervise Jorge.5
III.
For the foregoing reasons, we reverse the grant of sum-
mary judgment to the Rivases and to the Churreria Madrid
Restaurant, affirm the grant of summary judgment to the
Iglesiases and Aetna and remand for further proceedings
consistent with this opinion.
So ordered.
__________
5 While the plaintiffs rely on Giese v. Montgomery Ward, Inc.,
331 N.W.2d 585 (Wis. 1983), where the father's instruction to "mow
the lawn" was sufficient to create an employer-employee relation-
ship, we find that case easily distinguishable in that there the lawn
was located next to the father's tavern.