[Cite as Jarvis v. Staley , 2014-Ohio-271.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

DENNIS R. JARVIS, et al., : Plaintiffs-Appellants, Case No. 12CA46 : vs. : MORGAN S. STALEY, et. al., Defendants-Appellees. :

DECISION AND JUDGMENT ENTRY

_____________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANTS: Douglas J. Blue , Blue & Blue, L.L.C., 471 East Broad Street, Ste. 1100, Columbus, Ohio 43215 COUNSEL FOR APPELLEE: George J. Cosenza, 515 Market Street, P.O. Box 4, Parkersburg, West Virginia 26102

CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 1-13-14 ABELE, P.J. {¶ 1} This is an appeal from a Washington County Common Pleas Court judgment in favor of Claudia Staley, defenda nt below and appellee herein, on the claim brought by Dennis R. Jarvis and Diane Jarvis, plaintiffs below and a ppellants herein. Appellants assign the following

errors for review:

FIRST ASSIGNMENT OF ERROR:

“WHETHER DEFENDANT-APPELLEE CLAUDIA STALEY’S PERMITTING DEFENDANT MORGAN STALEY TO USE THE ALL-TERRAIN VEHICLE MADE THE ALL-TERRAINVEHICLE A DANGEROUS INSTRUMENTALITY SUCH THAT DEFENDANT-APPELLEE CLAUDIA STALEY SHOULD BE LIABLE FOR NEGLIGENT ENTRUSTMENT TO PLAINTIFFs/APPELLANTS DENNIS AND DIANA JARVIS.” SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT-APPELLEE CLAUDIA STALEY DID NOT FAIL TO EXERCISE CONTROL OVER HER SON, DEFENDANT MORGAN STALEY, IN HIS USE OF THE ALL-TERRAIN VEHICLE SUCH THAT DEFENDANT-APPELLEE CLAUDIA STALEY WAS LIABLE FOR NEGLIGENT ENTRUSTMENT.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT-APPELLEE CLAUDIA STALEY DID NOT SANCTION OR OTHERWISE DIRECT PLAINTIFF [sic ] MORGAN STALEY’S NEGLIGENCE.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE CLAUDIA STALEY SUMMARY JUDGMENT WHEN THE ISSUE OF OWNERSHIP OF THE ALL-TERRAIN VEHICLE PRESENTED A GENUINE ISSUE OF MATERIAL FACT.” {¶ 2} On July 31, 2006, Appellant Dennis R. Jarv is and Appellee Morgan S. Staley

were involved in an automobile accident. A ppellants commenced the case sub judice on July 28, 2008 and alleged, inter alia, that Appellee Morgan S. Staley negligently operated his motor vehicle and that his mother, Cl audia Staley, negligently entrus ted that vehicle to her son. Appellees, as well as various other parties, denied liability. {¶ 3} On May 28, 2010, the trial cour t entered summary judgment in favor of Appellee Claudia Staley on the negligent entrustment claim. The trial court, in so doing, concluded that appellants did not carry their bur den to show that a genuine i ssue of material fact exists concerning appellee’s son's “reckle ss or had negligent te ndencies.” Eleven days earlier, MorganWASHINGTON, 12CA46 3 Staley filed for bankruptcy and a notice of stay of proceedings was filed on May 18, 2010. As a result, the parties filed a June 1, 2010 agreed entry that all orders previously filed in the case would be considered “final and constitute final appealable orders.” {¶ 4} Appellants thereafter filed a notice of appeal from summary judgment. This Court later dismissed that appeal for the failure to include the Civ.R. 54(B) “no just reason for delay” language. Jarvis v. Staley , 4 th Dist. Washington No. 10CA15, 2012-Ohio-3832, at ¶¶9-10 ( Jarvis I ). On October 1, 2012, the trial court issu ed an entry that (1) granted summary judgment in favor of Appellee Claudia Staley, and (2) found “no just reason for delay.” This appeal followed. {¶ 5} We jointly consider all assignments of error together because they all posit, in essence, the same question – did the trial court correctly grant summary judgment on the negligent entrustment claim? Our review of all of the evidentiary materials leads us to answer that question in the affirmative. {¶ 6} Appellate courts ge nerally review summa ry judgments de novo. Sutton Funding,

L.L.C. v. Herres , 188 Ohio App.3d 686, 2010–Ohio– 3645, 936 N.E.2d 574, at ¶59; Broadnax v.

Greene Credit Service , 118 Ohio App.3d 881, 887, 694 N.E.2d 167 (2nd Dist.1997). In other words, reviewing courts afford no deference whatsoever to trial court summary judgment

decisions. See Sampson v. Cuyahoga Metro. Hous. Auth. , 188 Ohio App.3d 250, 935 N.E.2d 98, 2010– Ohio–3415, at ¶19; Kalan v. Fox , 187 Ohio App.3d 687, 933 N.E.2d 337, 2010–Ohio–2951, at ¶13. Instead, appe llate courts will independently review the case to determine if summary judgment is appropriate. Woods v. Dutta , 119 Ohio App.3d 228, 233–234, 695 N.E.2d 18 (4th Dist. 1997); McGee v. Goodyear Atomic Corp. , 103 Ohio App.3d 236, 241,WASHINGTON, 12CA46 4 659 N.E.2d 317 (4th Dist.1995). {¶ 7} Summary judgment under Civ. R. 56(C) is appropriate when a movant shows that (1) no genuine issues of material fact exist, (2) she is entitled to judgment as a matter of law, and (3) after the evidence is construed most strongly in favor of the opposing party, reasonable minds

can come to but one conclusi on and that conclusion is adve rse to the non-moving party.

Kaminski v. Metal & Wire Prods. Co. , 125 Ohio St.3d 250, 2010–Ohio–1027, 927 N.E.2d 1066, at ¶103; Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369–370, 696 N.E.2d 201 (1998). The moving party also bears the initial bur den to show that no genuine issue of material facts exist and that she is entitled to judgment as a matter of law. Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997); Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If that burden is satisfied, the onus sh ifts to the non-moving party to adduce rebuttal evidentiary materials. See Trout v. Parker , 72 Ohio App.3d 720, 723, 595 N.E.2d 1015 (4 th Dist.1991); Campco Distributors, Inc. v. Fries , 42 Ohio App.3d 200, 201, 537 N.E.2d 661 (2 nd Dist. 1987). {¶ 8} We have previously held, in a negligen t entrustment of a motor vehicle action, that the plaintiff has the burden to prove tha t: (1) the vehicle was driven with the owner's permission; (2) the entrustee was, in fact, an incompetent driver; and (3) the owner knew, at the time of the entrustment, that the entrustee was in competent or unqualified to operate the vehicle, or had knowledge of such facts and circumstances as to imply that the owner had knowledge of the incompetency. See Evans v. Sayers , 4 th Dist. Ross No. 04CA2783, 2005-Ohio-2135, at ¶26;

also see Gulla v. Strauss , 154 Ohio St. 193, 93 N.E.2d 662, at pa ragraph five of the syllabus (1950). Here, appellee’s motion incl uded a copy of a bill of sale th at purports to have sold theWASHINGTON, 12CA46 5 four-wheeler to a live-in boyfriend a few year s before the accident. Appellants produced no Civ.R. 56(C) evidentiary material to rebut that bill of sale. Thus, a negligent entrustment action would arguably not lie against appellee as she is not the owner of the instrumentality at the time of the accident. However, a division of authority exists among Ohio appellate districts as to

whether someone can be held lia ble for negligent entrustment when they no longer own the vehicle. The First and Eighth Di stricts have concluded that they can if the entrustor at least had

control over the vehicle. See Rice v. Kanoza , 1 st Hamilton No. C–110595, 2012-Ohio-2581, at ¶¶8-9; Motorists Ins. Co. v. Sokol , 8th Cuyahoga No. 45380, 1983 WL 5911 (Apr. 7, 1983). By contrast, the Sixth and Ninth Di stricts have held that they cannot be held liable under those

circumstances. See Dunne v. Hanson , 6th Dist. Lucas No. L–01–1414, 2002–Ohio–2267, at ¶11; DiFilippo v. Hamrlik , 9 th Dist. Lorain No. 93CA005698, 1994 WL 721847 (Dec. 30, 1994).

{¶ 9} Although in Evans our use of the word “owner” would suggest that we fall into the latter category, this Court ha s not directly considered the i ssue of whether a non-owner could be held liable for negligent entr ustment if the non-owner retained control of the vehicle. We, however, need not address that issue in this case. {¶ 10} First, Rice and Sokolboth are based on the fact that the entrustor had control over the vehicle. Here, Claudia Staley testified at her deposition that she “basically had nothing to do with Morgan and the use of the four wheeler.” She had nothing to do with the vehicle's maintenance (except for occasionally giving her s on money to buy gas) and the four-wheeler was “locked” in “Randy Jarvis’s garage” rather th an on her property. Appellee thus carried her

initial burden to show she had no control over the vehicle.[Cite as Jarvis v. Staley , 2014-Ohio-271.] {¶ 11} More important, Claudia Staley had to know at the time of entrustment that the entrustee was incompetent or unqua lified to operate the vehicle, or had knowledge of such facts and circumstances as to imply that the owner had knowledge of the incompetency. Assuming, arguendo, that Morgan Staley was incompetent or unqualified, his mother te stified as follows in her deposition: “Q. Before the incident, had you ever ha d to discipline Morgan with regard to mis-operating the ATV?

A. No. Q. Had anyone else had to disc ipline Morgan, to your knowledge? A. Not that I’m aware of, no.” {¶ 12} Thus, appellee carried her initial burden to show that she was not aware that her son was incompetent or unqualified to operate the four-wheeler. The burden then shifted to appellants to provide rebuttal evidentiary material s to show that appellee knew that her son was either incompetent or unqualified to drive the four-wheeler. We c onclude, as did the trial court, that appellants failed to satisfy that burden. {¶ 13} In their memorandum opposing summary j udgment, appellants cited appellee’s deposition wherein she admitted that her son did not wear a safety helmet. Appellants then attempt to triangulate that admission and argue that if “Morgan failed to wear his helmet as instructed, it is reasonable that he failed to follow other instruc tions given to him[.]” Although a failure to wear a safety helmet may demonstrate a lapse in judgment, it does not establish that appellee’s son was unqualifie d or incompetent. As for the assumption that he failed to follow other rules, speculative conclusory assertions are generally ina ppropriate in summary judgment analysis.WASHINGTON, 12CA46 7 {¶ 14} Based upon all the foregoing reasons, we c onclude that the tr ial court correctly granted summary judgment to appellee on the neg ligent entrustment claim. Consequently, we hereby overrule appellant ’s four assignments of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.[Cite as Jarvis v. Staley , 2014-Ohio-271.] JUDGMENT ENTRY It is ordered that the judgment be affirmed and appellees recover of appellants the costs

herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Harsha, J. & Hoover, J.: Concur in J udgment & Opinion For the Court

BY: Peter B. Abele Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.