Proving implied permission

A look at liability under the negligent-entrustment theory or permissive-use statute

2020 August

Liability under a negligent-entrustment theory or a permissive- use statute requires that the vehicle owner give the driver “permission” to operate the vehicle. That oftentimes is easy to prove as express permission: the owner says the driver was allowed to operate the vehicle. But what if permission is disputed? This article will look at the factors courts consider to determine whether the driver had the “implied permission” of the owner to operate the vehicle.

Permission as an element of cause of action

Under California’s permissive-use statute, an owner of a vehicle is vicariously liable for injury or death up to $15,000 for one person and up to $30,000 for more than one person for the negligence caused by a driver operating the owner’s vehicle with permission. (Veh. Code, §§ 17150, 17151; CACI 720.)¹ That limitation on liability does not apply when the owner is independently negligent. One basis of independent negligence is through a negligent-entrustment claim.

To establish negligent entrustment, the plaintiff must prove that the driver was negligent in operating the vehicle, that the defendant owned the vehicle, that the defendant-owner knew or should have known that the driver was incompetent or unfit to drive the vehicle, that the defendant-owner permitted the driver to operate the vehicle, and that the unfitness to drive was a substantial factor in causing harm to plaintiff. (CACI 724.) Liability also may be vicariously imposed for the harm caused by the negligence of a minor who was given permission by the minor’s custodian to operate a vehicle. (See Veh. Code, § 17708; CACI 722.)

These all require proof of “permission” as an element of the claim.

Implied permission

Permission is not an issue when it is undisputed that the owner expressly gave the driver permission. An issue arises when the owner disclaims that any permission was given.

Implied permission to operate a vehicle may be found even where the owner denies permission was given. (Anderson v. Wagnon (1952) 110 Cal.App.2d 362, 366.) The courts have developed a number of factors to consider in determining whether a driver had the implied permission of the owner.

As a threshold matter, it is important to note that implied permission is a question of fact. (Northwestern Security Ins. Co. v. Monarch Ins. Co. (1967) 256 Cal.App.2d 63, 65.) “The existence of the requisite permission . . . is to be determined by the trier of fact based on all the circumstances and inferences reasonably to be drawn therefrom.” (Fremont Comp. Ins. Co. v. Hartnett (1993) 19 Cal.App.4th 669, 674.)

The most important factor is the relationship between the owner and the driver. (Elkinton v. CSAA (1959) 173 Cal.App.2d 338, 344.) Some relationships create a strong inference of implied person. For example, owner/driver relationships involving spouses, principal/agent, or blood relatives such as parent/child are highly persuasive in establishing implied permission.  (Elkinton, 173 Cal.App.2d at 344; Marquez v. Enterprise Rent-A-Car (1997) 53 Cal.App.4th 319, 323; Hardware Mutual Casualty Co. v. Home Indemn. Co. (1966) 241 Cal.App.2d 303, 313 [“In assessing this issue of permissive use, we do not lose sight of the fact that Bowens and Madden were cousins.”].)

Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994 illustrates the importance of the relationship between the owner and driver in determining whether implied permission has been given. Taylor approved a jury instruction on implied permission which stated that one of the factors the jury could consider was whether “the owner either failed to monitor or supervise the use(s) of its vehicles(s).” (Id. at 1001.) In determining that case law supported this factor, Taylor compared the employer/employee relationship at issue there to the parent/child relationship in Elkinton, noting that in Elkinton, “[s]uch facts involved a measure of failure by the mother to monitor and supervise or control her daughter’s actions.” (Id. at 1002.)

The importance of the relationship factor is also highlighted by Mucci v. Winter (1951) 103 Cal.App.2d 627. In Mucci, no parent/child or employer/employee relationship existed. There, the owner had only met the driver on three prior occasions. (Mucci, 103 Cal.App.2d at 628-29.) On the night of the accident, while at a bar, the driver took the owner’s vehicle without the owner’s knowledge, subsequently getting into an accident. (Id. at 629-30.) Mucci found that implied permission could not be found on these facts. (Id. at 630-31.) Notably, however, Elkinton recognizes that “[h]ad the parties in Mucci been parent and child or had the owner the right to control the acts of the operator, certainly a different result would have obtained.” (Elkinton, 173 Cal.App.2d at 346.)

The location of the keys is another factor. Where keys to the vehicle are kept in an accessible place, that is probative evidence of implied permission. (See Elkinton, 173 Cal.App.2d at 343, 345; Fremont Comp. Ins., 19 Cal.App.4th at 675 [“The keys were kept in the house in the place ‘where we put our keys.’”]; Casey v. Fortune (1947) 78 Cal.App.2d 922, 924-925 [keys kept “where they were easily obtainable by (the driver), ‘in plain view’ on the buffet where ‘We always keep our keys.’”].)

Where the driver lives with the owner, and the owner takes no action to prevent access to the keys, that too is probative evidence of implied permission. (See Fremont Comp. Ins. Co., 19 Cal.App.4th at 673 [the owner “took no positive steps to deny access to” the driver]; Casey, 78 Cal.App.2d at 923, 926 [driver was living with owner; “[f]rom the fact that (owner) took no positive steps to prevent the use of the car by (driver) under the circumstances, it could reasonably be inferred that she impliedly consented to its use”].)

Espe v. Salisbury (1968) 262 Cal.App.2d 621 illustrates where implied permission was not found as a matter of law. There, a nonsuit on permissive use was upheld where there was no evidence that the 14-year-old unlicensed driver had ever driven before, or that the owner suspected that his son intended on driving the owner’s vehicle. (262 Cal.App.2d at 625.) Espe distinguished Elkinton on the ground that the mother did not give the daughter a “firm admonition” not to drive and left the keys in an easily findable location. (Ibid.) Espe distinguished Casey on the ground that the mother knew that the son had driven the car but continued to keep the keys in plain view. (Ibid.)

Importantly, in determining whether there has been an implied permission, it is not necessary that the owner have prior knowledge that the driver intends to use the car. (Phipps v. Shacklett (1934) 137 Cal.App. 109, 111.) However, the fact that the owner has knowledge that that driver has previously driven the vehicle before is evidence of implied permission. (Hardware Mutual Casualty Co., 241 Cal.App.2d at 312; Casey,78 Cal.App.2d at 924.)

Conclusion

The courts therefore look to a number of factors in determining whether, under the totality of the circumstances, a driver had implied permission to operate a vehicle: the relationship between the owner and driver, i.e., parent/child as opposed to some mere acquaintance or stranger; whether the keys are in an accessible place; whether the driver was living with the owner; whether the owner knew the driver had previously driven the vehicle; and whether the owner took affirmative steps to ensure the driver did not obtain the keys.