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October 15, 2001


The opinion of the court was delivered by: Facciola, United States Magistrate Judge


This case has been referred to me for all purposes pursuant to LCvR 73.1. Before me are the parties' cross motions for summary judgment.


There is no dispute as to the following facts:

In July 1987, defendants Francisco Rivas ("Mr. Rivas") and Hilda Rivas ("Mrs. Rivas"), husband and wife ("the Rivases"), residents of Washington, D.C., took an extended vacation to Guatemala. Before they left, the Rivases and Alicia Iglesias ("Mrs. Iglesias"), Mrs. Rivas' first cousin, arranged for Jorge Iglesias ("Jorge"), the 17-year-old son of Mrs. Iglesias, to mow the Rivas' lawn while they were away. On July 29, 1987, Jorge appeared at the Rivas' residence and began mowing the lawn. Upon entering the Rivas' home to use the bathroom, Jorge found the keys to the Rivas' 1986 Volkswagen Jetta in a jar on a window sill by the door. Although he was not a licensed driver, Jorge decided to go for a drive. After meeting up with some friends, he accidentally struck and injured 15-year-old Thomas Athridge, Jr. ("Tommy"), causing permanent brain damage. The Jetta was titled in the name of Churreria Madrid Restaurant, at the time a partnership owned by Mr. and Mrs. Rivas. Mrs. Rivas was the primary operator of the vehicle, which was driven both for restaurant functions and for her personal use.
The collision generated five lawsuits in this Court. In Civ. No. 89-1222 Tommy sued Jorge, Mr. Rivas, and Churreria Madrid Restaurant. In Civ. No. 92-1866, Tommy sued the Aetna Casualty & Surety Company, premising his complaint on the failure of Jorge's parents to supervise him. In Civ. No. 92-1867, Tommy sued Jorge's parents, and in Civ. No. 92-1868, Tommy sued Mrs. Rivas. Lastly, in Civ. No. 96-2708, Tommy again sued Aetna Casualty and Surety, Jorge's insurer.
By his order of November 13, 1992, Judge Thomas Penfield Jackson consolidated Civ. No. 89-1222 with Civ. Nos. 92-1866, 92-1867 and 92-1868. On July 19, 1995, Judge Jackson granted summary judgment in favor of all defendants in all these cases except Jorge. The remaining claim, Tommy's negligence action against Jorge in Civ. No. 89-1222, was then transferred to Judge Harold Greene on March 3, 1996. After a trial, Judge Greene found for plaintiffs and entered judgment in Tommy's favor in Civ. No. 89-1222 on November 8, 1996. Judge Greene's decision was summarily affirmed on August 12, 1997. Athridge v. Iglesias, No. 96-7261 (D.C. Cir. June 30, 1997).
In the meantime, Tommy appealed from Judge Jackson's July 19, 1995, grant of summary judgment. The Court of Appeals affirmed the award of summary judgment as to all the defendants in all the suits, except the defendants Mr. Rivas and Churreria Madrid Restaurant in Civ. No. 89-1222 and the defendant Mrs. Rivas in Civ. No. 92-1868. Athridge v. Rivas, 141 F.3d 357 (D.C. Cir. 1998). After remand, Civ. Nos. 89-1222 and 92-1868 were consolidated once more. Since then, the parties have conducted further discovery, including the plaintiff's deposition of Mr. and Mrs. Rivas, and have now filed cross motions for summary judgment.*fn1


Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, a court must enter summary judgment if there is "no genuine issue as to any material fact and if the moving party is entitled to a judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
There is little question that the issue of whether Jorge had the Rivases consent to use the Jetta on July 29, 1987 is a material one, for it is a necessary requirement of the Athridges' claim. As to genuinenesss, Rules 56(c) & (e) require the non-movant to point to specific evidence that would permit a reasonable jury to return a verdict for the non-movant. Anderson v. Liberty Lobby, 477 U.S. at 248; Matsushita Elec. Indust Co. Ltd v. Zenith Radio Corp. 475 U.S. 574, 586 (1986); Flemmings v. Howard Univ., 198 F.3d 857, 860 (D.C.Cir. 1999); Anderson v. Zubieta, 180 F.3d 329, 338 (D.C.Cir. 1999). Furthermore, the court must draw all reasonable inferences in the non-movant's favor. Flemming, 198 F.3d at 860; Zubieta, 180 F.3d at 338. Therefore, although the non-movant's burden in defeating a summary judgment motion is not very demanding, neither is it negligible. As the Supreme Court phrased it in First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 290 (1968), the non-movant's evidence must be "significantly probative." As I have emphasized, that evidence is invariably tested by whether the inference to be drawn from it is reasonable and would thereby support a reasonable finder of fact's verdict in favor of the non-movant.
Moreover, as noted in Matsushita, 475 U.S. at 574, the factual context surrounding the disputed issues is central in determining genuineness. For example, in response to the moving party's contention that the opposing party had violated antitrust statutes, the Court stated, "It follows from these stated principles that if the factual context renders respondents' claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Id., at 587.

A similar obligation is equally applicable in the instant case. On the day of the accident, the Rivases were out of the country when their nephew, unlicenced and underage, took their car. The implausibility that they, without any reason, would have ever consented to such a remarkable, extraordinary, and dangerous use of their car while they were out of the country requires that plaintiffs' evidence of consent ...

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