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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 969 September Term, 1994 ________________________________

EDDIE MACKEY, JR., et al.

v.

MICHAEL R. DORSEY, et al. __________________________________ Alpert, Harrell, Hollander, JJ. ___________________________________ Opinion by Alpert, J. ___________________________________

Filed: March 31, 1995

1 In September 1989, appellants, Eddie Mackey, Jr. and Mildred Mackey, filed suit against appellee, Michael R. Dorsey, in the Circuit Court for Prince George's County seeking damages sustained as a result of a motor vehicle accident that occurred on June 9, 1988. On May 22, 1990, Dorsey filed a motion for

summary judgment, which was denied by the Honorable Arthur H. Monty Ahalt on July 2, 1990. On October, 28, 1993, Dorsey filed

a renewed motion for summary judgment, which was granted by the Honorable Richard Sothoron on April 22, 1994. followed. Facts Mr. Mackey is employed as a bus driver for the Washington Metropolitan Area Transit Authority in the District of Columbia. On the morning of June 9, 1988, he was stopped at a bus terminal at the intersection of Thirteenth Street and Pennsylvania Avenue in downtown D.C. While Mackey was waiting for passengers to This appeal

board his bus, appellee, Michael R. Dorsey, parked his vehicle across the street in the median behind a police car. Dorsey

exited his car in order to ask the officer for assistance with his passenger, Audrey Cooper. Dorsey had picked up Cooper when She

he found her wandering on the highway on his way to work.

had indicated to him that she was lost and was looking for her

2 mother.1 According to Dorsey, when he exited his vehicle he took The officer informed him that he should When Dorsey

his car keys with him.

take Cooper directly to D.C. General Hospital. returned to his vehicle, it did not start.

Dorsey alleges that

he then exited the car again in order to look under the hood. The police officer assisted him as he checked some wiring and the car's battery. He then reentered the car, successfully started

the engine, "and exited again only long enough to shut the hood of the car." "At that time," Cooper slid over to the driver's Despite efforts by Dorsey and the

seat and locked the door.

police officer to stop her, Cooper pulled away from the median and collided with the bus driven by Mr. Mackey. Cooper was

subsequently placed under arrest for unauthorized use of a motor vehicle. Mr. Mackey's version of what transpired after Dorsey parked in the median is somewhat different. He contends Dorsey exited

his vehicle on only one occasion, never left the car with his keys, and never unlatched the hood of the car to check underneath it. The Mackeys brought suit against Dorsey under theories of negligent entrustment (Count II), vicarious liability (Count

Appellants alleged in their complaint that Cooper was intoxicated and/or under the influence of drugs. There is no evidence in the record to this effect.

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3 III), and gross negligence (Count VIII).2 In granting Dorsey's

motion for summary judgment as to all counts, the lower court stated: The Court feels there is no genuine dispute of material facts as to the fact that Ms. Cooper was not a permissive driver in this situation. The only time frame that Mr. Dorsey could be presumed to be negligent in any way[,] shape or form by allowing his vehicle to be not under the care of himself, possibly accessible to Miss Cooper is when he exited the vehicle after the police officer and himself were able to start the same to simply close the hood. Based on the affidavits, that appears to be unrefuted. . . . It is my sense based on the facts before me, that even if this matter went to trial as far as Mr. Dorsey, that a trial judge would direct Mr. Dorsey out at the end of the plaintiff's case. The Mackeys assert that the lower court erred in finding that there were not issues of material fact with respect to each count of their complaint. Specifically, they contend that there

are disputed issues of fact as to whether Cooper was the agent of Dorsey, and whether Dorsey relinquished control of his vehicle to Cooper when he left keys in the ignition and exited the vehicle. Historically, it was only with great reluctance that summary

Although characterized in appellants' brief as a claim for primary negligence against Dorsey, Count VIII is in actuality phrased as a negligent entrustment claim in appellants' complaint. The implications of this are discussed later in this opinion. A claim for loss of consortium was also brought, on Mr. and Mrs. Mackey's behalf, against Dorsey. Cooper was sued under theories of primary negligence, loss of consortium, and gross negligence.

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4 judgment was granted. State and federal courts often "carelessly

proclaimed that summary judgment was to be denied if there was any factual dispute or even any inference adverse to the movant which could be drawn from the facts." Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md. App. 236, 242 (1992). In a now

famous trilogy of cases, Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Ltd., 477 U.S. 242 (1986), and Matsushita Elec. Ins. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986), the Supreme Court articulated the modern standard for summary judgment, which has been cited with approval by this court in Seaboard, 91 Md. App. at 242-45. 44, we summarized these three decisions: The [Supreme] Court expressly stated that summary judgment was not a `disfavored procedural shortcut.' Thus, the `mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.' `Factual disputes that are irrelevant or unnecessary will not be counted,' and when a movant has carried its burden, the party opposing summary judgment `must do more than simply show there is some metaphysical doubt as to the material facts.'. . . The mere existence of a scintilla of evidence in support of plaintiff's claim is insufficient to preclude the grant of summary judgment; rather there must be evidence from which the jury could reasonably find for the plaintiff. (Emphasis in original; citations omitted.) Thus, only a "genuine issue" as to a "material fact" will prevent the granting of an otherwise sufficient motion for In Seaboard, at 243-

5 summary judgment. A "material fact" has been defined as one that

will "somehow affect the outcome of the case." King v. Bankerd, 303 Md. 98, 111 (1985). In contrast, a factual dispute "relating

to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute will not prevent the entry of summary judgment." Seaboard Surety Co., 91 Md. App. at 242-43 (quoting Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40 (1973)). Our task in the present case, then, is to determine if there were any such disputes of "material fact" that would prevent the trial court from finding that appellants were not entitled to judgment, as a matter of law, as to all three counts against Dorsey. I. Negligent Entrustment The tort of negligent entrustment was first recognized by the Court of Appeals in Rounds v. Phillips, 166 Md. 151, 160-61 (1934). The Court adopted the theory of negligent entrustment as

expressed in the Restatement (Second) of Torts, currently

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