HENRY J. KUNKEL, JR. vs. FRANCIS N. ALGER & another. [Note 1]

GREANEY, J. On December 4, 1971, in Action, Maine, the plaintiff suffered a fractured leg while riding as a passenger on a snowmobile operated by the defendant Theodore Lebida and owned by the defendant Francis N. Alger. His action in the Superior Court originally sought recovery

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against Lebida for negligent operation of the snowmobile and against Alger on the basis of vicarious liability. The case was tried to a jury (under the substantive law of the State of Maine) against Lebida on the theory expressed above, and against Alger on the theory that he negligently entrusted the snowmobile to an inexperienced person. The defendants' motions for directed verdicts (Mass.R.Civ.P. 50[a], 365 Mass. 814 [1974]), made at the close of the plaintiff's case and again at the close of all the evidence, were denied. The jury returned verdicts for Lebida and against Alger, assessing damages against Alger in the amount of $100,000. Alger moved for judgment notwithstanding the verdict (Mass.R.Civ.P. 50[b], 365 Mass. 814 [1974]), and, alternatively, sought a new trial. Kunkel moved for a new trial as to Lebida. [Note 2] That portion of Alger's motion seeking judgment n.o.v. was denied; that part of his motion requesting a new trial was allowed only as to damages, unless the plaintiff should accept a remittitur of $25,000. At the same time, the plaintiff's motion to amend his complaint "to conform [it] to the evidence" (Mass.R.Civ.P. 15[b], 365 Mass. 761 -762 [1974]), by adding an express claim against Alger for negligent entrustment, was allowed, [Note 3] and the motion for new trial as to Lebida was denied. When the plaintiff accepted the remittitur, an amended judgment setting damages at $75,000 was entered. The plaintiff has not appealed from the judgment in favor of Lebida or from the denial of his motion for new trial. Alger has appealed from the denial of his motions seeking posttrial relief and from the amended judgment. We hold that the judgment in Alger's case must be reversed, the verdict set aside and a

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new trial ordered. [Note 4] Questions as to the status of the case against Lebida are left for consideration in the Superior Court.

The following is a summary of the relevant evidence and other material events at the trial. The plaintiff, along with others, had been performing work at Alger's residence in Acton, Maine, on December 4, 1971. There were about ten or twelve inches of new snow on the ground. The workers had left their automobiles parked on a road about one mile distant from the residence. Throughout the course of the day, passengers and supplies were transported to and from the house by snowmobile and sled along a camp road which led from the parking area to the residence. Alger's neighbor, one Doherty, an experienced snowmobile operator, had established a clear path of tamped snow about four and one-half feet wide over the length of the road.

By dusk the workers were preparing to return to their cars. Kunkel arranged to ride as a passenger on Alger's snowmobile, which was operated by Lebida. Lebida's familiarity with the snowmobile consisted of operating it

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that day for approximately forty-five minutes, after having received instructions from Doherty, and on a previous occasion from another experienced driver. Tools were loaded on the sled behind the vehicle, and Alger's son, then age twelve, prepared to ride on the back of the sled. Kunkel was provided with a helmet and, according to their testimony, was instructed by Messrs. Alger, Lebida and Doherty to tuck in loose clothing, to lean in the same direction as the operator when traveling over contoured terrain, and to keep his feet within the stirrups provided on the machine for the protection of the passenger's feet. Kunkel did not recall receiving these instructions. Kunkel testified that he kept his feet inside the snowmobile, that after the machine reached the top of a steep hill "it just went sideways, out of control . . . [and] something hit my leg . . . tak[ing my] leg out of the stirrup . . . . [T]he next thing I know, I was in the snowbank." Alger testified that he observed Kunkel removing his right foot from the stirrup and that he shouted at him to keep his foot in but could not be heard over the noise of the snowmobile engine. Alger's son testified that from his position on the sled behind the snowmobile, he also observed Kunkel's foot out of the stirrup just prior to the accident. He testified that the path "slanted to the right," that the snowmobile "slid" or "leaned" to the right, that he heard Lebida yell to Kunkel to lean (to the left), that Kunkel did not lean, that the machine tipped, and that Kunkel, who had his right foot out of the stirrup, caught it in the snow as the machine was tipping. He testified that after the accident the sled, which moved independently of the snowmobile, was in the center of the path. He saw no ruts in the path. Lebida testified that as the vehicle "started up the second hill . . . I could feel the machine or the weight shift, so I yelled to lean and I leaned and . . . I felt resistance, so I let off the throttle . . . [and][t]he snowmobile stopped . . . in the middle of the path . . . lying against the embankment on the right-hand side . . . [but did not] hit the enbankment."

A game warden of the State of Maine, Vernon Walker, investigated the accident. His deposition read at the trial

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indicated that he had completed a snowmobile accident report. That report stated, as to the cause of the accident, that the machine was "[t]ravelling on rutted road at moderate speed, sled went into old wheel rut, passenger's leg caught between sled and frozen banking. [O]perator never drove a snow sled before." Walker also stated in the deposition that, although he had made the foregoing entry, based on his investigation, "[n]obody was to blame, [it] was just an accident, [and he] did not mean to indicate by this entry that [inexperience] was a cause of the accident [because] I don't know what caused the accident." The remainder of the evidence is not relevant to our disposition of the issues.

In his summation, the plaintiff's counsel argued to the jury: "Ladies and gentlemen, as to the liability in this matter, I'm going to ask you to find that both defendants in this case were negligent. That Ted Lebida was negligent in the operation of that vehicle, by reason of his inexperience. I'm also going to ask you to find that Frank Alger was negligent in entrusting this dangerous instrumentality, and making provisions for the transportation of Henry Kunkel, out of there by such an inexperienced person. That he certainly did not have the experience or the knowledge to instruct anybody with respect to anything concerning the operation or being a passenger on such a motor vehicle." Defense counsel in his closing argued to the jury that Lebida was not negligent in operating the snowmobile and that the accident was caused solely by Kunkel's having his right foot outside of the stirrup in a position where it could, and did, encounter an obstacle in the path. He did not discuss the connection between Lebida's conduct and Alger's potential responsibility. Both parties submitted requests for instructions which framed liability in terms of whether the defendants' conduct subjected the plaintiff to an unreasonable risk of harm. The judge's instructions on the standard of care and legal causation are set forth in the margin. [Note 5]

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1. A proper resolution of the liability issues in the case required that the jury be carefully instructed, under Maine law, on the tort of negligent entrustment. In Sweet v. Austin, 158 Me. 90, 94 (1962), a negligent entrustment case, the Supreme Judicial Court of Maine cited with approval Section 390 of the Restatement (Second) of Torts (1965), which defines the concept of negligent entrustment in this manner: "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others

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whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them." See also Restatement (Second) of Torts Sections 307, 308 (1965); Prosser, Torts Section 104, at 677-679 (4th ed. 1971). In order to prevail under this test, a plaintiff must prove not only that the defendant actually entrusted a chattel to someone whom he knew or should have known was incompetent or unfit to use it safely, [Note 6] but also that the entrustee's incompetence or unfitness constituted the legal cause of the plaintiff's injuries. [Note 7] The necessity of establishing both elements as a predicate to recovery for negligent entrustment is made apparent by the illustrations to Comment b of Section 390, [Note 8] and is implied by the few Massachusetts

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cases that have dealt with the tort. See Kenyon v. Hathaway, 274 Mass. 47, 55 (1931); Woodman v. Haynes, 289 Mass. 114, 116-117 (1935); Zarski v. Creamer, 317 Mass. 744, 746 (1945); Leone v. Doran, 363 Mass. 1, 11 (1973). The causation standard has been clearly stated in Bensman v. Reed, 299 Ill. App. 531, 534 (1939): "The liability of the owner does not arise by merely proving that he gave permission to an incompetent driver to drive his automobile but it must also appear that the incompetency alleged was the proximate cause of the commission of the . . . act which caused the injury." See Harrison v. Carrol, 139 F.2d 427, 428 (4th Cir. 1943); Syah v. Johnson, 247 Cal. App. 2d 534, 545 (1966); Fogo v. Steele, 180 Kan. 326, 328 (1956); Deck v. Sherlock, 162 Neb. 86, 92-93 (1956); Elliott v. Harding, 107 Ohio St. 501, 506-508 (1923); Hopkins v. Droppers, 184 Wis. 400, 412 (1924). See also Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark. L. Rev. 101, 109-113 (1966); 8 Am. Jur. 2d, Automobiles and Highway Traffic Section 573 (1963).

A careful reading of the pertinent Maine decisions reveals that they adopt the same standard for legal causation. See Kelley v. Thibodeau, 120 Me. 402, 405 (1921) (defendant's liability for entrustment to an inexperienced driver based on a showing that the entrustee drove at an unreasonable and dangerous rate of speed and without regard to the safety of pedestrians); Cullinan v. Tetrault, 123 Me. 302, 304 (1923) (suggestion that drugstore owner might be liable for entrusting care of his store to a "manifestly incompetent" teenager, but only where the incompetence was not obvious to plaintiff); and Sweet v. Austin, supra (suggesting that the jury's determination of the negligence, or lack thereof, on the part

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of the entrustee would control the question of causation and liability of the entrustor).

In the instant case the judge's charge as to Alger's liability, although exemplary in all other respects, was deficient in explaining the specific elements of negligent entrustment, in particular (and what is crucial to the determination of this appeal) its causation requirement. As a result, the jury were left in the dark on the relationship between Lebida's conduct and Alger's responsibility. The instruction that Alger could be found negligent "in letting Mr. Lebida use the sled" together with the instruction that the defendants would be responsible if "the result that occurred . . . [was] within the risk that was created by their negligence" permitted the jury to conclude incorrectly that Alger could be found liable for entrustment apart from Lebida's proper or improper handling of the machine. The problem stemmed from counsel's failure to make it clear throughout the trial that the case against Alger was being tried as one for negligent entrustment. It was only after the verdicts were in, and then in an effort to save the results, that the complaint was amended to insert negligent entrustment as the foundation of the case against Alger. Despite the lack of trial counsels' help in elucidating the governing law, the case still required "full . . . correct and clear instructions as to the principles of law governing all the essential issues presented, so that the jury may understand their duty and be enabled to perform it intelligently." Buckley v. Frankel, 262 Mass. 13, 15 (1928). Although the instructions as to ordinary negligence applicable to Lebida's conduct were, on the evidence against him at the trial, substantially accurate, the charge viewed as a whole was flawed and left the jury in a position where they could not properly analyze the case against either defendant or understand the basis for their verdicts. "[W]here a portion of the charge incorrectly states the applicable law, the accuracy of the charge as a whole may be affected." Wilson v. Boston Redev. Authy., 366 Mass. 588, 592 (1975). Posner v. Minsky, 353 Mass. 656, 660 (1968). The lack of sharp and clear distinctions in

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the charge on the principal issues invited inconsistent results and requires reversal.

2. The plaintiff speculates that the jury may have reached their verdicts by finding that Alger failed to warn him of the operator's inexperience, or by finding that Alger failed to instruct him "concerning where to place his feet in the snowmobile [and] the danger attendant on not doing so." Neither of these theories was expressly argued to the jury, included in any fashion in the judge's charge, or incorporated into the case by the posttrial amendments to the complaint which were purposely designed to conform the pleadings to the evidence. Compare Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 353-355 (1978). The verdicts cannot be supported by a hypothesis which was neither tried nor passed upon by the jury. Minot v. Boston, 201 Mass. 10, 14 (1909). In this respect, there can be "no pretense that the verdict . . . expresses any idea which the jury had, much less anything they intended to express" (id.), concerning Alger's failure to warn Kunkel that Lebida may have been a novice snowmobile driver. Moreover, there is not a shred of evidence that would have warranted a conclusion that Alger had failed to advise Kunkel about Lebida's inexperience or that, if Kunkel had known this fact, he would not have accepted the ride. In our view, this assertion is an afterthought designed to solve the problem with the verdicts, without proof to advance the notion beyond the realm of conjecture. [Note 9] Compare Williams v. Fontes, 9 Mass. App. Ct. 882, 883-884 (1980), with Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 328-30 (1973).

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The plaintiff's failure-to-instruct theory (which also appears to be an afterthought) similarly lacks an adequate evidentiary basis. At several points in his direct examination, Kunkel was asked whether he had been "instruct[ed] . . . with respect to being a passenger on that motor vehicle?" On each occasion he testified that he had no memory on the subject. On cross-examination he was expressly asked: "Just to straighten it out, when you were answering . . . questions about conversations about where to put your feet and loose clothing and things of that nature, it was not your testimony that these things did not take place. You meant that you just don't remember, isn't that so?" He replied, "That's correct." The defendants Alger and Lebida, and their witness Alger's son, each testified that the plaintiff had been instructed, among other safety precautions, to keep his feet within the stirrups provided on the machine for the protection of a passenger's feet. While the jury were free to disbelieve this testimony by the defendants and their witness, there was no affirmative evidence upon which to base a conclusion that Kunkel had not been instructed to keep his feet in the stirrups. It is settled that mere disbelief of testimony does not constitute evidence to the contrary. A case lacking adequate affirmative proof is insufficient to support a verdict in favor of the party with the burden on the issue. Wakefield v. American Sur. Co., 209 Mass. 173, 177 (1911). McDonough v. Vozzela, 247 Mass. 552, 558 (1924). Carmichael v. Carmichael, 324 Mass. 118, 121 (1949). Sutherland v. Scardino, 334 Mass. 178, 181-183 (1956). O'Connell v. Esso Standard Oil Co., 337 Mass. 639, 642 (1958). Morse v. Selectmen of Ashland, 7 Mass. App. Ct. 739, 750 (1979). See also Leach & Liacos, Massachusetts Evidence 314 (4th ed. 1967).

3. We reach the question of disposition. Only the judgment against Alger is before us; he is entitled to a new trial solely on the negligent entrustment claim. Although the plaintiff seasonably sought a new trial against Lebida, he had not appealed from the denial of that motion or from the

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judgment entered on the jury verdict in Lebida's favor, thereby barring consideration as of right of the common remedy in a case with inconsistent results -- namely that of new trials on the claims against the owner and operator. No one has raised the possible preclusive effect of the Lebida judgment on the retrial of the plaintiff's negligent entrustment claim against Alger. See generally Restatement (Second) of Judgments Section 61.1 (Tent. Draft No. 5, 1978). See also Rudow v. Fogel, 376 Mass. 587, 591-592 (1978); Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153, 159-160 (1979); Restatement (Second) of Judgments Section 68 (Tent. Draft No. 4, 1977). In the absence of briefing on the issues implicit in that question, or the opportunity for the parties, particularly Lebida, to be heard thereon, we leave problems that might arise to be passed upon by the judge in the Superior Court. The plaintiff, if he chooses, may seek resolution of the matters, either by seasonably seeking reconsideration of the sixth ground of his motion for new trial or by a motion testing the appropriateness of relief under Mass.R.Civ.P. 60(b)(5) or 60(b)(6), 365 Mass. 829 (1974). See Smith & Zobel, Rules Practice Sections 59.6, 60.13 & 60.15 (1977); 11 Wright & Miller, Federal Practice and Procedure Section 2863 (1973). We express no view on the disposition of such requests. Finally, at retrial, the deposition testimony of the game warden concerning the entry in his report as to the accident's cause is to be excluded for the reasons discussed in Julian v. Randazzo, 380 Mass. 391, 392-394 (1980).

The amended judgment entered on June 12, 1978, against Alger is reversed, and the verdict on which it is based is set aside. The case is to stand for further proceedings in the Superior Court consistent with this opinion. Neither party is to have costs of appeal.

So ordered.