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Boomer v. Frank3/18/1999
REVERSED AND REMANDED
The principal issue presented by this appeal is whether a licensed driver accompanying a driver with only a learner's permit has a duty to exercise reasonable care. The trial court decided that he does not, and entered summary judgment for the licensed driver, defendant Curtis Frank. We hold that as a matter of law, the licensed driver has a duty. See generally Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985) (whether a duty exists is a question of law).
The plaintiffs are the Boomer family. They were injured when their Toyota sport utility vehicle was struck by a Porsche driven by Frank's friend, Renee Rapisarda. She was driving with a learner's permit at the time, while Frank rode in the front seat. The presence of a licensed passenger is required by statute. The Boomers claim that Frank may be held liable in tort for their injuries under either an imputed negligence theory or for his negligent supervision of Rapisarda.
The details of the accident are as follows. The collision occurred on the evening of February 17, 1996, at the intersection of Shea Boulevard and 85th Place in Scottsdale, Arizona. The Boomer family was traveling eastbound in the innermost lane of Shea Boulevard. Rapisarda was driving south on 85th Place. She turned left to proceed east on Shea Boulevard, colliding with the Boomers' vehicle, apparently in the eastbound lane of Shea Boulevard closest to the median. The turn required crossing three lanes of westbound traffic in addition to a center median. Rapisarda's progress was controlled by a stop sign for southbound traffic on 85th Place at its intersection with Shea Boulevard.
Rapisarda was fifteen years old at the time, operating the vehicle with a learner's permit. Frank, who was riding in the front seat, was sixteen years old and had a driver's license. Three other passengers rode in the back seat of the Porsche.
There is some dispute about Rapisarda's speed and about whether she stopped at a stop sign prior to entering the intersection. Both Rapisarda and Frank deny that Rapisarda was speeding or failed to stop. However, several witnesses to the accident stated that they had observed Rapisarda speeding through the intersection prior to the accident. Although some witnesses said that, given her speed, Rapisarda must not have stopped, none actually observed whether she had stopped.
Frank moved for summary judgment. The Boomers submitted several witness statements in response to Frank's motion for summary judgment. Frank contested the admissibility of the witness statements in his reply. The record does not reveal whether the trial Judge considered the contested documents. The trial court granted Frank's motion for summary judgment, determining that there was "no duty and no evidence of violation of duty." The court certified its judgment as final under Arizona Rules of Civil Procedure 54(b). We have jurisdiction pursuant to A.R.S. section 12-2101(B) (1994).
The issues presented on appeal are: (1) Can Frank be held liable in tort under either an imputed negligence theory or a negligent supervision theory? (2) If so, was the evidence sufficient to create a genuine issue of material fact? We conclude that Frank, as the licensed passenger, had a duty to supervise Rapisarda, the permittee driver, and that there is sufficient evidence from which a jury could find that Frank violated that duty.
Our review of summary judgment is de novo. We decide anew whether genuine issues of material fact exist and whether a party is entitled to judgment as a matter of law. See Floyd v. Donahue, 186 Ariz. 409, 411, 923 P.2d 875, 877 (
Page 1 2 3 4 5 Arizona Personal Injury Attorneys
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