Covell v. Olsen
Covell v. Olsen
Opinion of the Court
The plaintiffs decedent, John Carter, died after his motorcycle was struck by an automobile owned by, and registered to, the defendant, Sigrid A. Olsen. At the time of the accident, Erik S. Olsen, the defendant’s eighteen year old son, was operating the automobile. Erik subsequently pleaded guilty to homicide by negligent operation of a motor vehicle and to operating negligently so as to endanger. Thereafter, the plaintiff filed suit against the defendant in Superior Court seeking to
Viewed in the light most favorable to the plaintiff, see, e.g., Darviris v. Petros, 442 Mass. 274, 275 (2004), the summary judgment record reveals that on July 31, 1997, when eighteen year old Erik was driving from Rockport back to his apartment in Vermont in an automobile registered to the defendant, he collided with Carter’s motorcycle on Route 128 near Lynnfield. At the time of the accident, Eric was driving at approximately eighty-one miles per hour.
Although Erik’s primary residence was in Rockport, where he lived with the defendant, he attended a boarding school in Vermont. That summer, Eric was living in a Vermont apartment because he had a job in Vermont and, given some problems he was having, the defendant thought Vermont provided a good environment for him.
In August, 1995, about eight days after he received his driver’s license, Erik was cited for speeding. In January, 1996, Erik hit a guardrail while on his way to visit friends in Vermont, but he was not charged with any driving offense in connection with that incident and no personal injuries resulted.
On that factual foundation, the plaintiff premised her claims against the defendant on three theories of liability, i.e., that, by force of G. L. c. 231, § 85A, Erik was his mother’s agent; negligent supervision of a minor child; and negligent entrustment. In allowing the defendant’s motion for summary
In urging reversal, the plaintiff advances two principal arguments. First, she asserts that the common-law definition of minor, and not the definition contained in G. L. c. 4, § 7, Forty-eighth, should be used when assessing her common-law claim of negligent supervision. At common law, twenty-one was the age of majority.
Dealing first with negligent supervision, it is true that, in certain situations, “a parent is under a duty to exercise reasonable care to prevent his minor child from inflicting injury, intentionally or negligently, on others.” Caldwell v. Zaher, 344 Mass. 590, 592 (1962). In this case, however, Erik was over eighteen when the accident happened and, under G. L. c. 4, § 7, Forty-eighth, he was not a minor.
Observing that G. L. c. 4, § 7, begins with the statement that “[i]n construing statutes the following words shall have the meanings herein given, unless a contrary intention clearly appears,” the plaintiff argues that the definition of minority
As stated, the plaintiff’s second theory of liability is premised on G. L. c. 231, § 85A, which provides that, in actions to recover for injuries resulting from motor vehicle accidents, proof that the defendant is the registered owner of a motor vehicle is “prima facie evidence” of the defendant’s responsibility for the actions of the motor vehicle’s driver. The statute also imposes on the defendant the burden of proving the absence of
We recognize at the outset that G. L. c. 231, § 85A, does not change the substantive law of negligence. See Cheek v. Econo-Car Rental Sys. of Boston, Inc., 393 Mass. 660, 662 (1985). Under that substantive law, Erik’s “actions could be imputed to [the defendant] if, at the time of the accident, [the defendant] had the authority and means to control [Erik’s] conduct.” Thompson v. Auto Credit Rehabilitation Corp., 56 Mass. App. Ct. 1, 5 (2002). More specifically, the defendant’s liability as a principal flows from proof that she “had the right to control the result to be accomplished by [Erik] and the means employed to accomplish that result.” Id. at 5-6. See Cheek v. Econo-Car Rental Sys. of Boston, Inc., supra.
Although § 85A does not alter the substantive law of negligence, it does shift to the defendant the burden of proving the absence of the requisite control. See ibid. Indeed, “[u]nder [§ 85A] the mere fact of registration in the name of the defendant as owner commonly carries the case to the jury so far as the agency of the driver in behalf of the defendant is concerned. The jury may disbelieve the testimony of witnesses tending to the contrary.” Mitchell v. Hastings & Koch Enterprises, Inc., 38 Mass. App. Ct. 271, 276 (1995), quoting from Legarry v. Finn Motor Sales, Inc., 304 Mass. 446, 447
To be sure, G. L. c. 231, § 85A, “does not impair or modify the fundamental rights of a defendant, who is at liberty to overcome the prima facie evidence created by the statute by other evidence.” Cheek v. Econo-Car Rental Sys. of Boston, Inc., supra at 662-663, quoting from Smith v. Freedman, 268 Mass. 38, 41 (1929). By placing the burden of persuasion on the defendant, however, the statute necessarily makes it extremely difficult for the defendant to prevail at the summary judgment stage of the case. The difficulty arises because the party seeking summary judgment “has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue,” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997), and, thus, “is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). That burden, difficult enough when the moving party does not have the burden of proof at trial, is extremely difficult to carry when the moving party will have the burden of proof at trial, for “[i]t can rarely be ruled as matter of law that the party having the burden of proof has sustained that burden.” Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 166 (1999). See Sweenor v. 162 State St., Inc., 361 Mass. 524, 527 (1972); Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass. 115, 123 (1994).
Reduced to essentials, then, the substantive question in this case is whether the defendant had the authority and means to control Erik’s use of the automobile when the accident occurred. The question is not whether she exercised that control, but whether she had the authority and means to do so. See generally Cowan v. Eastern Racing Assn., 330 Mass. 135, 141 (1953). The procedural question is whether the summary judgment record reveals that the defendant has carried her burden of showing the absence of any such control. She cannot carry that burden merely by arguing that the record contains no evidence of her control. See Smith v. Massimiano, 414 Mass. 81, 85-86 (1993). Instead, the defendant must affirmatively eliminate any
The record is insufficient to carry the defendant’s burden. Her affidavit and the statement she filed to comply with Rule 9A(b)(5) of the Rules of the Superior Court (1998)
Insofar as the judgment dismisses the plaintiff’s claim under G. L. c. 231, § 85A, the judgment is reversed. In all other respects, the judgment is affirmed.
So ordered.
Erik had been attending the Rock Point School in Vermont since the ninth grade. Before he was admitted to the school, he had had some problems with marijuana. The school provided transportation to treatment and counselling for such problems. The summer of the accident, Erik was sharing the Vermont apartment with two other Rock Point students.
See generally Smith v. Haynes, 202 Mass. 531, 534 (1909); State Tax Commn. v. Burr, 350 Mass. 573, 574 (1966); Slaney v. Westwood Auto, Inc., 366 Mass. 688, 692 (1975); Feakes v. Bozyczko, 373 Mass. 633, 636 (1977).
See G. L. c. 4, § 7, Forty-ninth, inserted by St. 1973, c. 925, § 1 (“ ‘Full age’ shall mean eighteen years of age or older”); G. L. c. 4, § 7, Fiftieth, inserted by St. 1973, c. 925, § 1 (“ ‘Adult’ shall mean any person who has attained the age of eighteen”).
The plaintiff has not briefed, and we therefore do not address, the negligent entrustment theory she advanced in the trial court. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In its entirety, G. L. c. 231, § 85A, provides:
“In all actions to recover damages for injuries to the person or to property or for the death of a person, arising out of an accident or collision in which a motor vehicle was involved, evidence that at the time of such accident or collision it was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant.”
In material part, rule 9A(b)(5) states that “[ejach motion for summary judgment shall be accompanied by a concise statement, in consecutive numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried . . . .”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.