Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARK KELLY; MARY TAYLOR-KELLY, )                    NO. 66431-0-I
individually and as the guardians for the)
minor children JESSICA KELLY and            )       DIVISION ONE
BRETT KELLY,                                )
                      Appellants,           )
                                            )
                      v.                    )
                                            )
JANICE L. RICKEY and JOHN DOE               )       UNPUBLISHED OPINION
RICKEY, husband and wife, and the           )
marital community composed thereof,         )       FILED: January 30, 2012
                                            )
                      Respondents.          )

       Lau, J.  --  Mark Kelly and Mary Taylor-Kelly appeal the trial court's summary 

judgment order dismissing their negligent entrustment personal injury lawsuit.  The 

case stems from a car accident in which Robert Kaloger -- driving a car registered to his 

roommate, Janice Rickey -- crossed the center line of SR 96 and hit the Kellys' van 

head on, killing Kaloger and injuring the Kellys.  Because the Kellys present no material 

fact issues regarding whether Rickey knew or reasonably should have known that 

Kaloger was a reckless, heedless, or incompetent driver, we affirm the summary  

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judgment dismissal order.      

                                            FACTS

       We construe the facts and reasonable inferences most favorably to the Kellys.  

On December 24, 2006, Robert Kaloger was driving eastbound on SR 96 when he 

crossed over the center line and struck a Toyota Sienna van head-on.  In the van were 

Mark Kelly (the driver), his wife Mary Taylor-Kelly, and their two children (collectively 

"the Kellys").  The Kellys suffered physical and emotional injuries, and their van was 

damaged.  Kaloger later died of his injuries at Harborview Medical Center.  Witnesses 

reported seeing Kaloger "cross[ing] the center line at least 6 times" and swerving "all 

over the road" prior to the accident.  Those same witnesses also reported seeing what 

appeared to be illegal drug paraphernalia in Kaloger's hand after the accident.  

Responding police officers found illegal drug paraphernalia next to Kaloger's driver's 

seat and a pipe commonly used to smoke controlled substances.  Kaloger's autopsy 

and toxicology report indicated .09 mg/L of methamphetamines in his body at the time 

he died.  The Kellys' expert witness, Dr. Jennifer Souders, testified:

              3.  It is my expert medical opinion that Robert Kaloger was impaired or 
       otherwise significantly affected by methamphetamines at the time that the car he 
       was driving struck the car in which the Kelly family was riding on December 24, 
       2006.  I base this conclusion on the several eye witnesses accounts in the 
       record as to Mr. Kaloger's driving behavior of swerving in and out of his lane.  
       Such behavior is consistent with someone affected by methamphetamines.
              4.  Mr. Kaloger's toxicology report, indicating a .09 mg/L level of 
       methamphetamines on December 24, 2006, is also consistent with Mr. Kaloger 
       being under the influence of methamphetamines. . . .

       Kaloger drove a 1991 Honda Prelude registered to his roommate, Janice Rickey, 

when the accident occurred.  Rickey, a registered nurse, met Kaloger at Delta 

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Rehabilitation Center in Snohomish County where they both worked.  Kaloger's 

adoptive mother, Kathy Wilson, also worked at Delta.  In 2005, Wilson told Rickey that 

Kaloger was homeless.  Rickey invited Kaloger to live with her.  About two months 

before the accident, Rickey purchased and registered the Honda Prelude in her name.  

She testified in her deposition that she bought the car as a gift for Kaloger.  Rickey 

acknowledged legal ownership of the car, paying the insurance premiums and a car 

repair bill; Kaloger paid for the gas.  Rickey testified that she never drove the car, did 

not keep a key to it, and only rode in it once.  Rickey described Kaloger's driving ability 

on that occasion as "excellent."  

       As to her knowledge about Kaloger's drug use, Rickey spoke multiple times to 

Wilson about Kaloger's prior drug use before he moved in.  Rickey said that Wilson 

told her Kaloger "had [drug] problems for years" but gave no specifics. Rickey 

explained that by December 24, 2006, she knew Kaloger had at least one criminal 

conviction and a sex offender registration requirement.  She knew nothing more about 

Kaloger's criminal history or driving record.  Rickey never asked Kaloger about his 

criminal or driving records.  

       Rickey said she had not seen Kaloger for at least three days before the accident 

because they worked different hours.  Rickey described the last time she saw Kaloger 

alive, "he seemed completely sober and normal" and noted no signs of intoxication or 

being under the influence of any substance.  She also testified to her familiarity with the 

symptoms of methamphetamine use, including appetite loss and long periods without 

sleep.  She never observed Kaloger exhibit any of these symptoms, appear intoxicated, 

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or possess drug paraphernalia. Rickey testified that Kaloger admitted to "falling off the 

wagon:"

              Q. Were you aware that Mr. Kaloger ingested methamphetamines prior to 
       December 24, 2006?
              A. One time.
              Q. So you knew prior to December 24, 2006 that Mr. Kaloger had what, 
       smoked meth?
              A. Yes.
              Q. How is it that you came to know that?
              A. I came home from work and his head was shaved, and I said, What 
       happened?  
              And he said  --  it's all hearsay, but, anyway, he said, I messed up.  So I 
       shaved my head.  
              And I said, what do you mean, you messed up?  
              And he said, Well, I fell off the wagon.
              Q. I'm sorry?
              A. I fell off the wagon.
              Q. What else did you say?  I didn't hear that other part.
              A. That's how he put it.  I thought he was talking about alcohol, but I never 
       saw him drink anything but soda or water.[1]

       The Kellys sued Rickey in October 2009, alleging negligent entrustment and 
respondeat superior.2  The Kellys alleged that Rickey knew or should have known that 

Kaloger was not competent to properly operate the car.  Rickey successfully moved to 

dismiss this claim on summary judgment.  The Kellys appeal.

                                  STANDARD OF REVIEW

       We review a summary judgment order de novo, performing the same inquiry as 

the trial court and considering facts and reasonable inferences in the light most 

favorable to the nonmoving party.  Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 

       1 The parties dispute whether Rickey meant methamphetamines or alcohol.

       2 The respondeat superior claim was dismissed and is not the subject of this 
appeal.  See Appellant's Br. at 5 n.1.
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P.3d 1068 (2002).  The nonmoving party may not rely on mere allegations, denials, 

opinions, or conclusory statements but must set forth specific admissible facts 

indicating a genuine issue for trial.  Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 

122 Wn. App. 736, 744, 87 P.3d 774 (2004); CR 56(e).  Summary judgment is 

appropriate only where there is no genuine issue of material fact and the moving party 

is entitled to judgment as a matter of law.  CR 56(c); Jones, 146 Wn.2d at 300 -- 01.  

"We do not weigh the evidence or determine the truth of the matter; the only question is 

whether there is a genuine issue for trial."  Arreygue v. Lutz, 116 Wn. App. 938, 940-

41, 69 P.3d 881 (2003).  Summary judgment will be granted only if "reasonable persons 

could reach but one conclusion" from all the evidence.  Vallandigham v. Clover Park 

Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).  

                                          ANALYSIS

       The Kellys contend the trial court erred by granting summary judgment because 

they raised material fact issues regarding (1) Rickey's ownership of the Honda Prelude,

(2) Rickey's actual knowledge of Kaloger's "reckless behavior," (3) whether Rickey 

exercised ordinary care in entrusting the Honda to Kaloger, and (4) Kaloger's 

intoxication.  They also claim these material issues of fact remain justifying a trial: 

(1) Rickey's purchase and registration of the Honda in her own name and payment of 

insurance premiums and repairs to the Honda, (2) Kaloger's intoxication on 

methamphetamines at the time of the crash, (3) Rickey's familiarity with Kaloger's drug 

abuse history based on conversations with Kaloger's mother, (4) Rickey's knowledge of 

Kaloger's current drug use, and (5) Rickey's failure to inquire about Kaloger's criminal 

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or driving records.  Rickey responds the Kellys presented no evidence that he knew or 

reasonably should have known that Kaloger was a reckless, heedless, or incompetent 

driver.

       "Negligent entrustment is a 'well-established' common law doctrine."  House v. 

Estate of McCamey, 162 Wn. App. 483, 264 P.3d 253, 256 (2011) (quoting Christen v. 

Lee, 113 Wn.2d 479, 499, 780 P.2d 1307 (1989)).  The party claiming negligent 

entrustment "must establish that the person entrusting the vehicle knew, or should have 

known in the exercise of ordinary care, 'that the person to whom the vehicle was 

entrusted is reckless, heedless, or incompetent.'"  House, 264 P.3d at 256 (quoting 

Mejia v. Erwin, 45 Wn. App. 700, 704, 726 P.2d 1032 (1986)).  Negligent entrustment 

claims are "premised on foreseeability -- the entrustor of a vehicle is liable only if a 

reasonable person could have foreseen the negligent acts of the entrustee."  House, 

264 P.3d at 256.  When past actions or conduct form the basis for foreseeability of 

some harm, the conduct must be "'so repetitive as to make its recurrence foreseeable.'"  

Mejia, 45 Wn. App. at 706 (emphasis omitted) (quoting Curley v. Gen. Valet Serv., Inc., 

270 Md. 248, 267, 311 A.2d 231 (1973)).  To establish liability for negligent 

entrustment, the Kellys must show that Rickey knew -- or in the exercise of ordinary 

care should have known -- about the danger of relinquishing control of the Honda to 

Kaloger.

       The Kellys maintain that a material issue of fact exists regarding whether Rickey 

knew or should have known that Kaloger was a reckless, heedless, or incompetent 

driver.  Rickey responds that the negligent entrustment issue can be decided as a 

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matter of law because Kaloger was properly licensed to drive at the time of the accident 

and had no history of reckless, heedless, or incompetent driving.   

       Division Two of this court addressed negligent entrustment of a car in Mejia and 

emphasized that the proper inquiry is the entrustor's perception of the entrustee's 

competence to drive at the time of entrustment.  In Mejia, Felix Erwin rented a car in his 

own name in 1980 with the understanding that his son, Phillip Erwin, would be driving 

it.  Mejia, 45 Wn. App. at 701.  While driving the rented car, Phillip was involved in an 

accident that injured his passenger, Mejia.  Mejia, 45 Wn. App. at 701.  Mejia brought a 

negligent entrustment claim against Felix and his wife.  Mejia, 45 Wn. App. at 701.  

Phillip had been in several accidents and received several traffic citations between 

1968 and 1980.  Mejia, 45 Wn. App. at 702. There was no evidence that Felix knew 

about any of Phillip's infractions or accidents after 1969.  Mejia, 45 Wn. App. at 702.  

The court held, "As a matter of law, Phillip's citations and accident 11 years before the 

date of the alleged entrustment were too remote in time to permit the question of Felix's 

alleged negligence to go to the jury."  Mejia, 45 Wn. App. at 706.  While acknowledging 

the general principle that negligence is generally a jury question, the court reasoned, 

"After some period of time, knowledge of an entrustee's previous reckless acts should 

have little bearing on the entrustor's present perception of the entrustee's competence 

to drive at the time of the entrustment."  Mejia, 45 Wn. App. at 705.

       Our Supreme Court has explained the importance of proving recklessness, 

heedlessness, or incompetence with respect to driving in negligent entrustment cases: 

              While an automobile is not regarded in law as an inherently dangerous 
       instrumentality, and the owner thereof is not generally liable for its negligent use 

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       by another, to whom he loans or intrusts it for that other's purposes, yet there is 
       an exception to the rule.  If the owner loans or intrusts his automobile to another 
       person, even for that person's purposes, who is so reckless, heedless, or 
       incompetent in his operation of automobiles as to render the machine while in 
       his hands a dangerous instrumentality, he is liable if he knows, at the time he so 
       intrusts it, of the person's character or habits in that regard.

Jones v. Harris, 122 Wn. 69, 74, 210 Pac. 22 (1922) (emphasis added).  Appellate 

courts have consistently required negligent entrustment plaintiffs to show that the 

entrustor knew or should have known that the entrustee was a reckless, heedless, or 

incompetent driver.  See Weber v. Budget Truck Rental, LLC, 162 Wn. App. 5, 13-14, 

254 P.3d 196, review denied sub nom., Weber v. Turner, 172 Wn.2d 1015 (2011) 

(holding that even if an entrustee's physical features suggested past drug use, they did 

not show that the entrustee was likely to use illegal drugs while driving a rented van); 

House, 162 Wn. App. at 258 (concluding that the plaintiff/appellant "failed to present 

sufficient evidence from which a fact finder could reasonably conclude that [the 

entrustee] was an incompetent, reckless driver when [the entrustor] entrusted him with 

the pickup."); Kaye v. Lowe's HIW, Inc., 158 Wn. App. 320, 333, 242 P.3d 27 (2010) 

("the trial court did not err by concluding that there was no evidence that [the entrustor] 

knew [the entrustee] was an incompetent driver or should have been on notice that [the 

entrustee] posed a danger."); Mejia, 45 Wn. App. at 704 ("there is no evidence from 

which one could conclude that [the entrustor] had personal knowledge that between 

1969 and 1980 [the entrustee's] driving was not satisfactory, much less 'reckless, 

heedless, or incompetent.'"); Cameron v. Downs, 32 Wn. App. 875, 879, 650 P.2d 260 

(1982) ("There is also evidence in the record that [the entrustor] knew, or in the 

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exercise of ordinary care, should have known that [the entrustee] was both a reckless 

driver and likely to be intoxicated.").

       There is no dispute that Kaloger was properly licensed to drive at the time of the 

accident, so we presume he was a competent and qualified driver.  See Vikelis v. 

Jaundalderis, 55 Wn.2d 565, 570, 348 P.2d 649 (1960) (noting in negligent 

entrustment case that "in view of the fact that Talis had a valid and subsisting driver's 

license, at the time, we must presume as a matter of law; that he was competent and 

qualified to operate his parents' car").

       The Kellys contend, however, that Kaloger's criminal and driving records and 

drug use history establish a jury question on whether Rickey knew or should have 

known that Kaloger was a reckless, heedless, or incompetent driver when she 

entrusted the Honda to him.  This argument fails for several reasons.  

       First, Kaloger's criminal convictions included first degree rape of a child, failure 

to register as a sex offender, and patronizing a juvenile prostitute.  His criminal history 

shows no drug related criminal convictions.  The Kellys fail to demonstrate how these

offenses relate to Kaloger's driving and cite no authority that the types of crimes 

Kaloger committed reasonably establish that he is a reckless, incompetent driver under 

a negligent entrustment claim.  In House, we noted that the plaintiff cited no authority 

that the types of crimes the entrustee committed (crimes against persons and property, 

nonmoving traffic violations, and marijuana possession offenses) reasonably 

established that the entrustee was a reckless or incompetent driver.  House, 264 P.3d 
at 257.3  "'Where no authorities are cited in support of a proposition, [we are] not 

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required to search out authorities, but may assume that counsel, after diligent search, has found 

none.'"  McCormick v. Dunn & Black, P.S., 140 Wn. App. 873, 883, 167 P.3d 610 (2007) 

(quoting State v. Logan, 102 Wn. App. 907, 911, 10 P.3d 504 (2000)).  Thus, even if 

Rickey knew about one or more of these convictions, the Kellys fail to show how they 

are relevant in proving negligent entrustment.  

       Next, Kaloger's driving record shows several nonmoving traffic violations in 2005 

and 2006, including multiple driving without liability insurance infractions, driving while 

license suspended, registration violations (no tabs), unpaid parking tickets, and one 

moving violation for failure to stop.  The record reveals no traffic accidents other than 

the December 24, 2006 accident involving the Kellys.  Rickey testified that she knew 

nothing about Kaloger's driving history, and the Kellys present no evidence to the 
contrary.4  The record shows no evidence that Rickey ever observed Kaloger drive 

recklessly or negligently -- Rickey described Kaloger as an excellent driver on the one 

occasion she rode with him.  Even if Rickey knew about these traffic violations, the 

Kellys fail to show that she knew or should have known Kaloger was a reckless, 

heedless, or incompetent driver.  Nothing in Kaloger's driving record suggests any 

dangerous conduct was "'so repetitive as to make its recurrence foreseeable.'"  Mejia, 

       3 Our Supreme Court recently denied review in House v. Estate of McCamey, 
173 Wn.2d 1005 (2011).  

       4 House involved a father who entrusted a vehicle to his adult son, who then ran 
a stop sign and collided with the plaintiff's van.  House, 264 P.3d at 255.  The son was 
49 years old and last lived with his father 31 years before the accident.  House, 264
P.3d at 257-58. We concluded no evidence indicated the father knew or should have 
known about his son's criminal or driving records.  House, 264 P.3d at 257-58.
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45 Wn. App. at 706 (emphasis omitted) (quoting Curley, 270 Md. at 267).  

       Turning next to Kaloger's history of drug use, the Kellys fail to show that Rickey 

knew or reasonably should have known that Kaloger was a reckless or incompetent 

driver based on his drug use history.  As discussed above, a negligent entrustment 

plaintiff must show that the entrustor knew or should have known the entrustee was a 

reckless or incompetent driver.  Even assuming Rickey knew about Kaloger's past drug 

use and also knew he had previously "fallen off the wagon," we conclude this 

knowledge, as a matter of law, is insufficient to establish that Kaloger was likely to use 

illegal drugs while in possession of the Honda Prelude.  We recently addressed a 

similar issue in Weber.  In that case, Timothy Turner rented a moving van from Budget 

Truck Rental.  Weber, 162 Wn. App. at 7.  Turner had smoked methamphetamine 

several hours prior to renting the van, but none of the Budget agents noticed any sign 

of intoxication.  Weber, 162 Wn. App. at 7-8.  The following day, while driving the van, 

Turner ran over Gretchen Weber in a crosswalk.  Weber, 162 Wn. App. at 8.  An officer 

responding to the scene "observed Turner exhibiting symptoms of methamphetamine 

use: fast heart rate, bloodshot eyes, droopy eyelids, little to no pupil reaction to light, 

and 'two fresh, red injection marks' on his left arm."  Weber, 162 Wn. App. at 8 (quoting 

Clerk's Papers at 264).  A blood test performed after the accident showed 

methamphetamine and amphetamine in Turner's system.  Weber, 162 Wn. App. at 8.  

Weber sued Budget under a negligent entrustment theory, alleging, inter alia, that even 

if Turner displayed no sign of intoxication at the time he rented the van, Budget agents 

should have recognized him as an addict who was likely to drive while intoxicated.  

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Weber, 162 Wn. App. at 9.  Weber relied on "Turner's many tattoos, two of which may 

suggest a reference to drug use; his darkened fingertips, which Weber contended is 'a 

hallmark characteristic' of drug users who employ a glass pipe; and two injection marks, 

which [the responding officer] described as 'fresh' at the time of Turner's arrest the 

following day."  Weber, 162 Wn. App. at 13. We held, "Even if these features suggest 

past drug use, and even if [the Budget agent who handled the rental] noticed them, 

they do not show Turner was likely to use illegal drugs while in possession of the rental 

van."

Weber, 162 Wn. App. at 13-14.  Our holding in Weber controls here.5 Even if Rickey 

knew about Kaloger's prior drug use, no evidence suggests that she knew or should 

have known at the time she entrusted Kaloger with the car that he would drive while 

under the influence of drugs.   

       Although the Kellys argue that Rickey "had a duty to exercise ordinary care in 

the entrustment of her vehicle, and she violated her duty of care when she failed to 

inquire as to any of Mr. Kaloger's criminal history, traffic history, drug history, or 

propensity to be reckless," they cite no authority establishing such a duty to inquire.  

Appellant's Reply Br. at 13.  As discussed above, we are not required to search out 

authorities in support of a proposition where the parties cite none.  McCormick, 140 

Wn. App. at 883 (quoting Logan, 102 Wn. App. at 911).  

       5 Our Supreme Court recently denied review in Weber.  See Weber, 172 Wn.2d 
1015 (2011). 
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       Nevertheless, no case law imposes a duty to investigate the background of a 

potential driver in a negligent entrustment claim.  In Mejia, the court reasoned, "It is not 

reasonable to expect a parent of an emancipated child to be intimately acquainted with 

all aspects of his grown child's personal life."  Mejia, 45 Wn. App. at 704.  Accordingly, 

it could not be said that Felix (entrustor and father of the entrustee, Phillip) should have 

known of Phillip's traffic citations and accidents that occurred when Phillip was 

emancipated and not living in his parents' home.  Mejia, 45 Wn. App. at 704.  Nothing 

in Mejia suggests that Felix had a duty to ask Phillip about his driving history.  And in 

House, the plaintiff argued that the entrustor "'had an obligation to read [Department of 

Corrections] files'" to learn about the entrustee's criminal behavior.  House, 264 P.3d at 

258 (quoting Appellant's Br. at 20).  We noted the plaintiff cited no authority to 

establish such an obligation.  House, 264 P.3d at 258.  As in House, the Kellys cite to 

no authority establishing a duty to inquire.

                                        CONCLUSION

       For the reasons discussed above, we conclude that the trial court properly 

granted Rickey's summary judgment motion.  The Kellys failed to present sufficient 

evidence from which a fact finder could reasonably conclude that Kaloger was an 

incompetent, reckless driver when Rickey entrusted him with the Honda.  We affirm the 
order dismissing the Kellys' negligent entrustment claim.6

       6 The parties also dispute ownership of the Honda Prelude.  The Kellys argue 
that they sufficiently established Rickey owned the vehicle, had control over it, and 
relinquished control to Kaloger.  Rickey responds that she gave the vehicle to Kaloger 
and the Kellys presented no evidence showing she had the right to control it.  We need 
not address this issue because even viewing the facts in the light most favorable to the 
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WE CONCUR:

Kellys (and thus assuming without deciding that Rickey owned the vehicle), we 
conclude that no negligent entrustment occurred.
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