The opinion of the court was delivered by: Facciola, United States Magistrate Judge
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 amount
to more than dubious inferences to be "significantly probative." Cities
Services, 391 U.S. at 290.
Defendants contend that they are not vicariously liable as a matter of
law under the District of Columbia's Motor Vehicle Safety Responsibility
Act ("MVSRA"), D.C. Code Ann. § 50-1301.8 (2001) (formerly §
40-408).*fn2 Plaintiffs, with remarkable ambition, claim they are
entitled to summary judgment based on the very same provision, even
though Jorge himself has upon numerous occasions conceded that he took
the Jetta on impulse and without permission. Jorge's Answers to
Plaintiffs' First Set of Interrogatories and Requests for Documents, at
2; Jorge's Testimony at 1996 Trial, at 16; Jorge's Deposition, at 1-40.
Defendants' Motion for Summary Judgment
Under the MVSRA, the owner of an automobile bears the burden of proving
that the user did not have consent. But this presumption of consent is
rebuttable by uncontradicted and conclusive evidence of non-consent.
Gaither v. Myers, 404 F.2d 216, 218 (D.C. Cir 1968); Jones v. Halun,
296 F.2d 597 (D.C. Cir. 1961), cert denied 370 U.S. 904 (1962); Simon v.
Dew, 91 A.2d 214, 215-16 (D.C. Mun. App. 1952). On the other hand, if
the plaintiff can establish sufficient facts to discredit the defendant's
asserted non-consent, then submission of the issue to a jury is
warranted. Alsbrooks v. Washington Deliveries, Inc., 281 A.2d 220, 221
If defendants meet their burden by presenting uncontradicted and
conclusive evidence of non-consent, then their motion for summary
judgment must be granted.
Defendants' Evidence of Non-Consent
First and foremost, defendants offer the testimony of Mr. and Mrs.
Rivas, Francisco Rivas, Jr., their son, and Jorge himself that Jorge did
not have permission to use the Jetta on July 29, 1987. Like any other
evidence, an owner's testimony of non-consent is not in itself
dispositive, and may be contradicted by a lack of credibility,
inconsistencies in the testimony, or inconsistent external facts.*fn3
Gaithers, 204 F.2d at 218; Lancaster v. Canuel, 193 A.2d 555, 558 (D.C.
1963). Indeed, the owner may explicitly assert non-consent, but evidence
to the contrary may support
a judgment against him. See Schwartzbach v.
Thompson, 33 A.2d 624 (D.C. 1943). What makes this case unusual, if not
unique, for a MVSRA case, is the fact that the driver, too, has testified
to the owners' non-consent. In the ordinary vicarious liability tort
suit, the principal and the agent may adopt contrary positions with
respect to consent. The driver/agent may do his utmost to argue that he
had consent, in order to share liability with the owner in the hopes that
the owner's insurance carrier can satisfy the judgment that will be
rendered against him and the owner. Conversely, the owner/principal and
his insurance carrier will argue non-consent, trying to pin all the
blame, and the liability, on the driver. Here, the Rivases and GEICO
their carrier, representing their respective interests run true to that
form and assert Jorge's non-consent. But Jorge freely admits that he took
the car on impulse and without permission, confirming the Rivases'
testimony on this point.
Plaintiffs point to no direct inconsistencies in defendants'
testimony. In fact, the only direct attack on defendants' testimony of
non-consent is that Mr. Rivas' affidavit should be disregarded on the
grounds that he could not read English and therefore did not understand
what he had signed. This argument in no way shows that Mr. Rivas did not
have "personal knowledge" of the facts, and his testimony as to whether
he ever gave permission to Jorge would certainly be admissible.
Furthermore, his deposition testimony that Jorge did not have permission
to take the car is completely consistent with his wife's testimony to
that effect. No one is suggesting that he would say that Jorge had
permission to take the car, had the question been asked of Mr. Rivas in
Spanish. Moreover, even if we were to disregard Mr. Rivas' affidavit, the
affidavits of the other three affiants stand on their own, uncontradicted
in their statements that the Rivases never gave Jorge permission to drive
The unusual factual context of Jorge's use of the Jetta on July 29,
1987 further rebut the presumption of consent. Most importantly, the
Rivases were out of the country on this date. Jorge's charge was limited
to mowing the Rivas' lawn, a task in no way connected to the use of the
Jetta. The Rivases had left the car keys in a jar inside their home and
had no reason to expect that Jorge, an underage and unlicenced driver,
would find them and take the car for a ride. Thus, their uncontradicted
testimony, in the distinct factual context of this case, meets their
burden and entitles them to summary judgment.
Plaintiffs' Motion for Summary Judgment
While this would seem to end the case, plaintiffs' have crossed moved
for summary judgment which requires me to resolve their motion as well.
Plaintiffs, by moving for summary judgment themselves, have taken upon
themselves the burden of establishing that a reasonable finder of fact
would have to conclude that the Rivases impliedly consented to Jorge's
use of the car in the teeth of his statement under oath that he had no
express permission. This is so because, while the defendant may have the
burden of proof under the statute, the movant for summary judgment has
the burden of establishing that no reasonable finder of fact could return
a verdict in the defendant's favor and there is therefore no genuine
issue of material fact that the Rivases impliedly consented to Jorge's
use of the car. Thus, they have to show that based on the evidence they
present, a reasonable finder of fact would have to find that the Rivases
impliedly consented to Jorge's use of the car.
Evidence of Consent
Plaintiffs essentially concede that defendants never gave Jorge express
consent to use the Jetta. Instead, they focus on the existence of an
implied consent. In law, the word "imply" means that by his action or
inaction one party gives another a reason to believe that a certain
consequence may permissibly follow from that action or inaction. Black's
Law Dictionary 679 (5th ed. 1979);*fn4 See also Paul v. Howard
University, 754 A.2d 297, 311 (D.C. 2000). Thus, to use a hoary law
school example, the man who drops off his clothes at a laundromat,
watches as the owner writes him a ticket, and then departs without saying
a word, has impliedly agreed to pay for his laundry when he picks it up.
The question presented here is whether there is a genuine issue of
material fact as to whether the Rivases, by their action or inaction,
provided Jorge grounds to form a reasonable belief that he had their
permission to use their car.
The Athridges find evidence of implied consent in (1) Jorge's alleged
prior use of the vehicle; (2) the Rivas' failure to expressly prohibit
Jorge from using the vehicle; (3) the close family relationship between
the Rivases and Iglesiases; (4) skepticism on the part of the Iglesias'
insurer on the issue of implied consent; and (5) Mrs. Rivas' declining to
file a criminal complaint against Jorge for unauthorized use of the
vehicle.*fn5 Upon closer examination, each of these arguments proves
untenable, and in no meaningful way contradicts defendants' evidence of
non-consent, let alone entitles plaintiffs to summary judgment.
Prior Use — Plaintiffs insist that Jorge must have used the Jetta
before the accident because of his competence in handling the stick-shift
vehicle. They maintain, that the Jetta was the only stick-shift vehicle
available to Jorge and all the other cars to which he had potential
access had automatic transmissions. Plaintiff's Statement of Undisputed
Facts at 6. Testimony by a friend of Jorge suggests that on July 29,
1987, Jorge claimed to have driven the Jetta on one or two prior
occasions and that Jorge also had been seen in Francisco Rivas, Jr.'s
Porsche. Plaintiffs Exhibit 12. But even if one accepts that Jorge used
the Jetta or the Porsche on a prior occasion, the Athridges offer
absolutely no evidence that prior to, on, or after July 29, 1987, the
Rivases knew of any prior use by Jorge. If someone uses another person's
car, and the owner knows of that use and does not object, the person
borrowing might infer that the owner will not object if the borrower uses
it again. But if the owner never learns of the use, why would the
borrower think that the owner would not object the second time around?
Thus, if the Rivases did not know that Jorge ever used their car before
the accident, Jorge could not possibly think that he had their consent to
use it on the day of the accident. Jorge's prior use, if unknown to the
Rivases, cannot possibly be used as a basis to contradict the Rivases'
assertions that they did not consent to Jorge's use of the Jetta on the
day of the accident or to imply their consent. An inference of consent
from his unknown prior use is patently unreasonable and thus fails to
meet the minimal summary judgment standard set forth in Matsushita and
Anderson v. Liberty Lobby. Instead, the theorem that the Rivases knew
that Jorge had previously driven the Jetta and did not object to it is
based on the wildest of speculative leaps. The first leap is that Jorge
knew how to drive a manual transmission because he previously drove the
Jetta which, like millions of other cars, had a manual transmission. The
second leap is that the Rivases must have known that Jorge previously
drove the car. Neither of those leaps is based on any evidence whatsoever
and can possibly serve as a rational reason to infer the Rivases'
Additionally, even if one accepts on faith that Jorge used the Jetta on
prior occasions and the Rivases knew of this use, District of Columbia law
certainly does not compel the inference that Jorge therefore had
sufficient reason to think he had the Rivas' consent whenever and however
he intended to use the vehicle. Consent to use a vehicle in one context
or on a prior occasion is not tantamount to consent for all purposes in
the future. Permitting a friend to use one's car to pick up his laundry
is hardly grounds for the friend to presume he could drive the vehicle to
California. What is relevant for the purposes of D.C. Code Ann. §
50-1301.8 (2001) is consent at the time of the incident giving rise to
the suit. The District of Columbia understandably requires a reasonable
relationship between the prior use permitted and the actual use which
caused the accident. Lancaster, 193 A.2d at 558 (finding no consent to
use a business car after hours for personal uses, even where driver had
consent to use during business hours for delivery purposes); See Hudson
v. Lazarus, 217 F.2d 344, 346 (D.C. Cir. 1954) (finding no consent to use
the car to go to breakfast, even where driver had consent to return the
vehicle to a workplace); Curtis v. Cuff, 537 A.2d 1072, 1075 (D.C.
For the purposes of this case, then, plaintiff would have to show that
Jorge used the Jetta on prior occasions, that the Rivases knew of that
use and did not object, and that the use of the car on the day of the
accident was similar to Jorge's prior use. But there is no evidence
whatsoever upon which a reasonable finder of fact could predicate the
conclusion that the Rivases knew of Jorge's prior use and without such
evidence the finder of fact cannot possibly draw the ultimate inference
— that the Rivases impliedly consented to Jorge's use of the Jetta
on the date of the accident. In the absence of such evidence, plaintiffs
cannot possibly be entitled to summary judgment.
Failure to expressly prohibit Jorge from using the Jetta —
Plaintiff also finds consent in the Rivas' never forbidding Jorge, who
was an unlicenced minor at the time of the accident, to use the vehicle.
Although the absence of an express prohibition may be significant in
certain contexts, it is much less so when the owner has no reason to
expect an unauthorized use of the vehicle. In fact, Curtis, 537 A.2d at
1076, expressly holds that the owner is not required to take affirmative
steps to keep another from driving the car, especially where the owner
has no reason to believe that the person would attempt to use the
vehicle. See also Lancaster, 193 A.2d at 558. It is unreasonable to
suggest that a car owner should expressly forbid everyone who might have
limited access to his home not to take the car keys he finds in that home
and take the car in the driveway. No District of Columbia case has even
approached permitting the jury to predicate consent upon the failure of an
owner to forbid a person who has access to his home from using his car
because there was the potential that that person's access to the
car keys might tempt him to take the car.
Familial Relationship Between the Rivases and Iglesiases —
Likewise, the close family relationship between the Rivases and the
Iglesiases does not support a presumption of implied consent. While Jorge
was the Rivas' nephew, from that familial relationship one can hardly
presume consent. It cannot be seriously suggested that the Rivas' request
that Jorge mow their lawn while they were abroad included an implicit
invitation for Jorge to drive their car. Families differ radically in
their closeness, but it strains credulity past any reasonable breaking
point to suggest that a person, while traveling abroad, usually has no
objection when his underage, unlicenced relative takes his car.
Post-Accident Events — Deriving consent from events that occur
after an accident is a tricky business for the same reason that
earthquakes following cock crows does not mean that cock crows cause
earthquakes. The inference of pre-event consent to be drawn from the
post-event fact must be a reasonable, common-sense deduction. Plaintiffs
point to Curtis, 537 A.2d at 1076, where an already existing estrangement
between a wife and husband corroborated the wife's claim that she had
revoked any consent to her husband's use of the car. Here, however, the
fact that Jorge's accident did not rupture the Rivas-Iglesias affinity
does not materially bolster the plaintiff's claim. Both families knew
that Jorge had seriously injured a young man and that Jorge was in
serious trouble for what he had done. That the families continued their
relationship despite what Jorge did is so understandable that no
reasonable person could view it as proof that the Rivases did not object
to Jorge's driving the car. Such an argument is post hoc propter hoc
reasoning at its most illogical.
Plaintiffs also point to the fact that Mrs. Rivas declined to press
charges against Jorge for unauthorized use of the vehicle. In American
Car Rentals, Inc. v. Moore, 294 A.2d 361 (D.C. 1972), the court noted
that the presumption of consent could be rebutted by the filing of a
criminal complaint for unauthorized use. But it is misleading to draw
the converse conclusion from the owner's failure to file a criminal
complaint. It is entirely understandable that Mrs. Rivas would not want
Jorge to face criminal punishment, even if he acted without her consent
in driving the vehicle. That they did not tender their nephew to the
police so that he might go to jail is so understandable that it borders on
the fatuous to see it as "proof" that Jorge had consent to drive the
car, let alone compelling the conclusion that, because she did not have
her nephew arrested by the police, she must have given him permission to
drive the Jetta before the accident.
Finally, in her deposition Mrs. Rivas testified that it never occurred
to her to have her nephew formally charged with unauthorized use of the
Jetta. Mrs. Rivas's Deposition, at 170-171. It might be one thing to
derive some inference of consent from a conscious choice not to have a
person arrested for unauthorized use of one's vehicle. It is quite another
to draw that inference when there is no evidence of such a conscious
GEICO Disbelief — The Athridges also point to expressions of
skepticism by GEICO claims officials as to Jorge not having permission to
drive the Jetta. Shortly after the accident, a GEICO official wrote to a
co-worker, "the fact that [Jorge and the Rivases] are cousins should
cause us some skepticism about the lack of permission alleged by our
Memorandum of J.T. McMahon, GEICO Legal Claims Officer,
Plaintiffs' Exhibit 7. Another GEICO employee who interviewed Jorge also
expressed doubts as to his purported lack of permission. Memorandum of
Linda Smith, GEICO Claims Examiner, Plaintiffs' Exhibit 8. Yet the same
documents show that other GEICO officials were more credulous on the
permission question. As a whole, these documents show only that there was
some disagreement within GEICO as to whether Jorge had the Rivas' consent
to use the Jetta. In addition, the GEICO employees were assessing their
coverage responsibilities, not interpreting the D.C. liability statute.
Their skepticism, by itself, is not nearly enough to send this case to a
Moreover, the information proffered in opposition to a motion for
summary judgment must be admissible evidence. Under Fed.R.Civ.P. 608(a)
one witness may testify as to the credibility of another witness only in
the form of an opinion as to latter's character for truth telling.
Hence, one witness may not express the opinion that another witness is
not telling the truth. United States v. Azure, 801 F.2d 336, 340 (8th
Cir. 1986); United States v. Earley, 505 F. Supp. 117 (S.D.Iowa 1981).
Under that principle, the statements of GEICO officials to which the
Athridges point are not even admissible.
Perhaps the closest factual parallel to this case is Schwartzbach,33
A.2d 624, where the driver took the owner's keys without the owner's
knowledge or permission, yet the trial judge found for the plaintiff. On
appeal, the D.C. Court of Appeals affirmed. The trial judge found the
defendant's testimony unpersuasive and evasive, and subpoenaed the driver
to testify. Three key elements distinguish Schwartzbach from the instant
case. Rather than delineating a firm interpretation of the D.C. statute,
the Court emphasized that it simply was holding that the trial judge's
ruling was not clearly erroneous. Id., at 625. Furthermore, the trial
judge's ruling was based chiefly on inconsistencies and
self-contradictions in the defendant's testimony. Here, there are no
equivocations in the depositions of Jorge, Mr. and Mrs. Rivas, or
Francisco Rivas, Jr., regarding whether Jorge was permitted to use the
vehicle. All four invariably and unswervingly denied any consent or
permission. Finally, whereas in Schwartzbach the driver stated that the
defendant had allowed her to drive the car on prior occasions, both with
him and on her own, here there is no similar evidence of known prior
Summary and Conclusion
Defendants offer uncontradicted and conclusive evidence of the Rivas'
non-consent and are therefore entitled to summary judgment. For the
reasons stated in this opinion I first conclude that no reasonable finder
of fact could determine that Jorge had express or implied consent to
drive the Rivas' Jetta on July 29, 1987, and I therefore must grant
defendants' motion for summary judgment. I also have to conclude that a
reasonable finder of fact would not be compelled to conclude that the
Rivases impliedly consented to Jorge's use of the Jetta. I therefore
must deny plaintiffs' motion for summary judgment
Accordingly, it is hereby,
ORDERED that Defendants' Motion for Summary Judgment [#147] is
GRANTED. It is further hereby,
ORDERED that Plaintiffs' Motion for Summary Judgment [#146] is DENIED.
A separate order entering final judgment for defendants accompanies
this Memorandum. SO ORDERED.
The motion of the defendants, Francisco Rivas, Hilda Rivas, and
Churrascaria Restaurant, for summary judgment having been granted, IT IS
ORDERED THAT plaintiff take nothing, that the action be dismissed on its
merits and that the defendants Francisco Rivas, Hilda Rivas and
Churrascaria Restaurant, recover of plaintiff the costs of this action.