Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RENEE MALDONADO and                         )       NO. 66467-1-I
ANN LOMBARDO,                               )
                                            )
                      Appellants,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
RAYMOND and BEVERLY HOLDREN,                )       UNPUBLISHED OPINION
and KELLY HOLDREN,                          )
                                            )       FILED: April 23, 2012
                      Respondents.          )
                                            )

       Lau, J.  --  The trial court granted summary judgment dismissing the lawsuit filed 

by Renee Maldonado and her mother Ann Lombardo for injuries Maldonado sustained 

as the passenger in a car accident.  Our de novo review of the record reveals that 

Maldonado failed to carry her burden to produce evidence demonstrating a genuine 

issue of material fact for trial.  Accordingly, we affirm.

                                            FACTS

       We construe the facts and inferences in the light most favorable to Maldonado.1  

       1 Holdren has moved to supplement the record on appeal with additional 
declarations that were not presented to the trial court.  Because the standards for  

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At about 3 a.m. on August 19, 2007, 16-year-old Maldonado was awakened by her cell

phone ringing.  The call was from her friend, Amber Hickerson, who was "hysterical"

and "sobbing." Hickerson told Maldonado she needed her help, but she could not 

coherently explain what was wrong.  Maldonado had a car, but did not want to drive 

herself because she had an intermediate license that allowed her to drive only during 

daytime hours.  Hickerson told Maldonado she would "send a ride" for her.  Maldonado 

said the she did not know for certain whether Hickerson and the group of teenagers 

she was with had been drinking, but it occurred to her that might be the case.

       About 45 minutes later, Casey Elmer arrived at Maldonado's house.  Elmer was 

the older brother of one of Maldonado's friends, and Maldonado had met Elmer a few 

times.  He was driving a car that belonged to another friend, Kelly Holdren, whom he 

was dating at the time.  The car was registered to Holdren's mother but used primarily 

by Holdren.  Maldonado snuck out of her house and got into the car with Elmer.  

Elmer's manner was friendly, and she did not notice any impairment.  Maldonado 

assumed Elmer was taking her to Hickerson's house.  

       On the way, Elmer stopped at a drive-through window of a Jack-in-the-Box.  

While waiting for their order, Elmer made some comments about being unafraid to die 

that made Maldonado feel "uncomfortable." Shortly after Elmer began driving again, he 

supplementing the appellate record under RAP 9.11 have not been met, we deny the 
motion.  We grant Maldonado's motion to strike references in the respondents' brief to 
the proposed evidence that was not before the trial court. 

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began to speed, lost control of the car, hit a barrier, and flipped the car.  Elmer was 

ejected from the car and died.  Maldonado sustained a wrist injury.

       Maldonado sued Kelly Holdren and her parents, Beverly and Raymond Holdren.  

She claimed that the accident was caused by Elmer's negligence and that Holdren was 

liable under the theory of negligent entrustment for allowing Elmer to drive her car.  

Maldonado asserted that Holdren's parents were vicariously liable under the "family car 

doctrine."    

       Holdren moved for summary judgment, contending that she did not consent to 

Elmer's use of her car on the night in question and that the car was not being operated 

for a family purpose at the time of the accident.  The trial court granted the motion and

dismissed.  Maldonado appeals.

                                  STANDARD OF REVIEW

       We review summary judgment orders de novo.  Hisle v. Todd Pac. Shipyards 

Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).  Summary judgment is proper if no 

genuine issue of material fact remains and the moving party is entitled to judgment as a 

matter of law.  CR 56(c).  Summary judgment is subject to a burden-shifting scheme.  A 

defendant may move for summary judgment on the ground that the plaintiff lacks 

competent evidence to support his or her claim. Young v. Key Pharms., Inc., 112 

Wn.2d 216, 226, 770 P.2d 182 (1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 

106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).  Once the moving party meets the burden to 

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show there is no genuine issue of material fact, the nonmoving party must set forth 

specific facts rebutting the moving party's contentions and disclosing that a genuine

issue of material fact exists.  Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 

12-13, 721 P.2d 1 (1986).  When considering a summary judgment motion, the court 

must construe all facts and reasonable inferences from those facts in the light most 

favorable to the nonmoving party.  Fed. Way Sch. Dist. No. 210 v. State, 167 Wn.2d 

514, 523, 219 P.3d 941 (2009).

                                          ANALYSIS

       Proof that Holden consented to Elmer's use of her car is essential to 

Maldonado's theory of negligent entrustment.  See Parrilla v. King County, 138 Wn.

App. 427, 441, 157 P.3d 879 (2007) (consent to relinquish control of the instrumentality 
is a necessary element of a negligent entrustment claim).2  Maldonado contends that 

the trial court erred in granting summary judgment because there was "abundant and 

substantially undisputed evidence" of consent to establish her negligent entrustment 

       2 Maldonado makes no argument on appeal with respect to her claim under the 
family car doctrine.  Thus, it appears that she has abandoned any contention that the 
trial court improperly dismissed this claim.  See Dickson v. U.S. Fid. & Guar. Co., 77 
Wn.2d 785, 787, 466 P.2d 515 (1970) (failure to argue or discuss an assignment of 
error in an opening brief results in an abandonment of the issue).  In any event, 
assuming the doctrine may extend to circumstances where the car is driven by 
someone other than a family member for whom the car is maintained when the family 
member is not in the car, proof of consent would also be essential under this theory.  
See Holthe v. Iskowitz, 31 Wn.2d 533, 548, 197 P.2d 999 (1948); Phillips v. Dixon, 236 
Ga. 271, 223 S.E.2d 678 (1976).  

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claim. Appellant's Br. at 2.  Maldonado claims that a jury could infer that Holdren 

consented to Elmer's use of her car based on the following facts she testified to:  

(1) Elmer showed up at her house driving the car, (2) Holdren was dating Elmer at the 

time, and (3) Holdren had let friends drive her car on prior occasions, even though her 
parents did not allow it.3

       But in support of her motion for summary judgment, Holdren produced evidence 

that she expressly denied permission for Elmer to use her car.  According to Holdren's 

version of events, Maldonado snuck out of her parents' house at around 10 p.m. and 

was hanging out and drinking with the group all night.  Holdren said at some point after 

1 a.m., Elmer wanted to use her car to go out and buy food, but she refused because 

Elmer had been drinking and inhaling a household product, "Dust Off," during the 

course of the evening. Holdren said she and Elmer argued back and forth about it.  

Someone suggested that Maldonado could drive, but Holdren still refused because she 

did not believe Maldonado was fit to drive.  Holdren said she left the others at that point 

because they were getting mad at her for refusing to let anyone drive the car.  She 

went into a room where Hickerson was already asleep and went to bed.  Her keys were 

in her jacket pocket.  She took off the jacket and placed it beside her before going to 

sleep.  

       3 Although Maldonado claims the evidence of Holdren's past behavior is 
admissible habit evidence under ER 406, she does not establish the regularity of this 
conduct.  Nor does Maldonado allege that Holdren previously allowed intoxicated 
friends to drive her car.

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       According to Maldonado, she was not at the house when Elmer left in Holdren's 

car.  Therefore, she did not, and could not, offer any evidence about whether Holdren 

gave Elmer permission to drive her car.  Holdren's testimony is the only evidence in the 

record on the issue of consent.  The inferences that Maldonado relies upon to support 

her claim of consent would be relevant in the absence of any evidence on the issue.  

But in the face of evidence establishing the lack of consent, she may not rely on 

speculation, conjecture, or mere possibility to raise issues of material fact precluding 

summary judgment.  Chamberlain v. Dep't of Transp., 79 Wn. App. 212, 215-16, 901 

P.2d 344 (1995); Greenhalgh v. Dep't of Corr., 160 Wn. App. 706, 714, 248 P.3d 150 

(2011). 

       Nothing in the record contradicts Holdren's claim that she expressly denied 

consent.   Maldonado claims that a jury could determine that Holdren's testimony is not 

credible and reject it.  A party opposing summary judgment may not, however, "'merely 

recite the incantation, "Credibility," and have a trial on the hope that a jury may 

disbelieve factually uncontested proof.'" Laguna v. State Dep't of Transp., 146 Wn. 

App. 260, 266-67, 192 P.3d 374 (2008) (internal quotation marks omitted) (quoting 

Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 627, 818 P.2d 1056

(1991)).  As we held in that case:

       Since a defendant without the burden of proof may move for summary judgment 
       based on nothing more than the absence of evidence to support the plaintiff's 
       case, the nonmoving party should not be able to escape summary judgment 
       simply by impeaching the defendant's witness without providing proof sufficient 
       to prove the plaintiff's case.

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Laguna, 146 Wn. App. at 266 n.12.  Holdren's testimony that she explicitly refused to 

allow Elmer to drive her car on the night in question is uncontroverted.  Maldonado's 

assertions that Holdren's testimony is not credible or is subject to impeachment are

insufficient to defeat summary judgment.

       Maldonado also claims that irreconcilable discrepancies between her version 

and Holdren's version of the night of the car accident raise material issues of fact that 

must be resolved by a jury.  According to Maldonado, her claim hinges on the critical 

fact of whether she was with Elmer when he left the party to buy food or whether she 

was waiting at her house for someone to pick her up.  But the standard of review on 

summary judgment requires that we accept as true the facts as presented by 

Maldonado.  Accordingly, we assume that Maldonado was at home until Elmer picked 

her up at around 4 a.m.  But even assuming this, Maldonado failed to carry her burden 

to produce evidence demonstrating a genuine issue of fact as to whether Holdren 

consented to the use of her car.  The defendants presented evidence that Holdren 

explicitly told Elmer he did not have permission to use her car. Nothing that Maldonado 

testified to contradicts this fact.  

       In sum, the evidence before the court on summary judgment construed in the 

light most favorable to Maldonado fails to establish that Holdren relinquished control of 

her car to Elmer on the night of the accident that resulted in Maldonado's injury.  

Summary judgment was proper.

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       Affirmed.   

WE CONCUR:

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