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QUESTIONS OF FACT WHETHER DEFENDANT WAS THE OWNER OF THE SCOOTER, WHETHER DEFENDANT KNEW DECEDENT WAS NOT COMPETENT TO OPERATE THE SCOOTER, AND WHETHER DEFENDANT GAVE DECEDENT PERMISSION TO TEST DRIVE THE SCOOTER; THE NEGLIGENT ENTRUSTMENT ACTION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court in this negligence entrustment action, determined there were questions of fact whether defendant had dominion and control over a scooter which was for sale at a car dealership and therefore “owned” the scooter, whether defendant knew decedent was not competent to operate the scooter, and whether defendant gave the decedent permission to take the scooter for a test drive. Decedent was killed in an accident when she was taking the test drive:

“An owner of a motor vehicle . . . may be liable for negligent entrustment if he or she was negligent in entrusting it to one who he or she knew, or in the exercise of ordinary care should have known, was incompetent to operate it” … . … The [dealership] owner stated in an affidavit that neither his father nor defendant [dealership] owned the scooter. Nevertheless, the scooter was displayed for sale on defendant’s front lot and the owner stated in his deposition testimony that he would push the scooter from the garage to the lot each morning. The keys for the scooter would be in the scooter when it was on display in the lot and then was kept in a separate box behind the owner’s desk when it was not on display. The helmet was likewise kept in the office of the owner’s father. Viewing the foregoing evidence in the light most favorable to plaintiff, we conclude that a question of fact exists as to whether defendant exerted dominion and control over the scooter so as to be its owner … . …

Defendant alternatively argues that it did not have knowledge that decedent was incompetent to operate the scooter. The owner stated that he thought decedent had a motorcycle permit, but he did not confirm this fact with decedent nor did he inquire as to whether she knew how to drive the scooter. The owner also did not check decedent’s driver’s permit or have her sign anything prior to when she drove the scooter. Other than knowing that decedent had ridden a two-wheel Yamaha Enduro road bike in the past, the owner had never seen decedent operate a scooter prior to the accident. In view of this evidence, we find that there is an issue of fact regarding whether the owner should have known that decedent was incompetent to ride the scooter … .

… The owner … admitted that, other than verbally telling decedent to wait for his father, he did not do anything else to try to stop decedent from taking the scooter. Indeed, when asked what he did when decedent walked into his father’s office and took the helmet for the scooter, the owner responded, “Nothing.” A customer who was with the owner when decedent arrived testified that it appeared that decedent did not take the scooter against the owner’s will and that “it look[ed] like . . . there was some sort of agreement because she did go.” Maguire v Upstate Auto, Inc., 2020 NY Slip Op 02226, Third Dept 4-9-20

 

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