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Nunez v. A&M Rentals2/14/2005
es on appeal. On appeal the plaintiffs contend that the defendant caused the death of the plaintiffs' decedent when it (1) negligently entrusted the Corvette to Patten; (2) breached its statutory duty under G. L. c. 90, §§ 12 and 32C; and (3) negligently failed to verify that Patten had a valid driver's license. Because an essential element of each of these claims was unlikely to be forthcoming at trial, we affirm the judge's order allowing summary judgment for the defendant.
1. Common-law Negligent Entrustment
In order to prevail on a claim for negligent entrustment in the Commonwealth, the plaintiff must show that "(1) the defendant entrusted a vehicle to an incompetent or unfit person whose incompetence or unfitness was the cause of the [victim's] injuries; (2) [the defendant] gave specific or general permission to the operator to drive the [vehicle]; and (3) the defendant had actual knowledge of the incompetence or unfitness of the operator to drive the vehicle." Picard v. Thomas, 60 Mass. App. Ct. 362, 369 (2004), citing Mitchell v. Hastings & Koch Enterprises, Inc., 38 Mass. App. Ct. 271, 276-277 (1995). Compare Restatement (Second) of Torts § 390 (1965) (permitting a finding of negligent entrustment on a showing that the entrustor had reason to know the entrustee was incompetent).
In this case, the Superior Court judge determined that the plaintiffs failed, as matter of law, to prove that the defendant had knowledge of any incompetence or unfitness on the part of Patten. In fact, Patten had rented vehicles from the defendant on several prior occasions without incident. The defendant was entitled to summary judgment on the claim for common-law negligent entrustment.
2. General Laws c. 90, §§ 12 and 32C
As an alternative theory to common-law negligent entrustment, relying on Mitchell v. Hastings & Koch Enterprises, Inc., supra, the plaintiffs argue, as they did below, that the defendant violated G. L. c. 90, § 12, and that such violation was evidence of negligence sufficient to warrant sending their claim to the jury. The Superior Court judge rejected this argument. Pointing out that " section 32C . . . specifically addresses the [duty] of car rental agencies," she determined that § 32C rather than § 12 applies to this case.
General Laws c. 90, § 12, was originally enacted in 1903. The language at issue was added in 1911 and has not been further amended since then despite the significant increase in motor vehicle traffic. It provides:
"No person shall allow a motor vehicle owned by him or under his control to be operated by any person who has no legal right so to do, or in violation of this chapter."
St. 1911, c. 37. (Driving with a suspended license is a violation of G. L. c. 90, § 10.)
Section 32C was originally adopted in 1934. That version regulated the method of measuring the mileage for rental cars where the lessee paid for the car on a per mile basis. See St. 1934, c. 209, § 1; St. 1966, c. 222, § 3. The sentence relevant to this case was added in 1971. See St. 1971, c. 117. It provides that
"No lessor shall lease any motor vehicle or trailer until the lessee shows that he or his authorized operator is the holder of a duly issued license to operate the type of motor vehicle or trailer which is being leased."
Neither statute -- either § 12 or § 32C -- makes reference to the other on its face or in its legislative history.
In deciding this case, the judge relied on the principle of statutory construction that "when two statutes . . . conflict . . . the more specific provision, particularly where it has been enacted subsequent to a more
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