Garcia v. Steele

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SJC-13378

MARIA BLANCA ELENA GARCIA & another1 vs. SHANITQUA STEELE &

others.2

Suffolk. March 8, 2023. - June 27, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,

& Georges, JJ.

Motor Vehicle, Dealer, Entrustment. Negligence, Motor vehicle,

Vicarious liability, Entrustment. Contract, Consideration,

Lease of equipment. Federal Preemption. Statute, Federal

preemption, Construction. Practice, Civil, Summary

judgment.

Civil action commenced in the Superior Court Department on

July 27, 2018.

The case was heard by David A. Deakin, J., on motions for

summary judgment.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Peter Antonelli (Thomas H. Curran also present) for the

plaintiffs.

1 José Fafián Seijo.

2 Kolawole Oke; MBB Auto, LLC, doing business as Mercedes

Benz of Brooklyn; and MBF Auto, LLC, doing business as Mercedes

Benz of Caldwell.

2

Michael S. Melville for MBB Auto, LLC, & another.

David M. Lentini, II, for Kolawole Oke.

WENDLANDT, J. This case presents the question whether an

automobile dealership that includes an automotive service center

and provides a "courtesy" vehicle to its customer while

conducting repair work on the customer's car is entitled to the

protection set forth in 49 U.S.C. § 30106 (Graves Amendment).

The Graves Amendment generally protects rental car companies

from being held vicariously liable for torts committed by

customers driving their rental vehicles. Where a rental car

company demonstrates that it falls within the scope of the

Federal statute, including, inter alia, by showing that the

vehicle at issue was "rent[ed] or lease[d]," the Graves

Amendment preempts State laws such as G. L. c. 231, § 85A

(§ 85A), which sets forth a rebuttable presumption that the

owner of a vehicle is vicariously liable for injuries caused by

the driver of the vehicle.

In the present case, a New Jersey-based automobile

dealership that includes an automotive service center provided a

courtesy vehicle to a customer while it serviced the customer's

vehicle. Contrary to the terms of the courtesy vehicle

agreements, the customer drove the vehicle beyond the permitted

radius of travel and into the Commonwealth. While in Boston, he

left the vehicle illegally parked with the key in the ignition

3

and the engine running as he conducted an errand; his then-wife,

who did not have a driver's license and was not an authorized

driver under the courtesy vehicle agreements, remained in the

vehicle. When a parking officer required that the vehicle be

moved, the wife moved into the driver's seat and pushed a

button. The vehicle rolled forward through a red light and

struck one of the plaintiffs, causing serious injuries.

The plaintiffs brought a negligence claim against, inter

alia, the automobile dealership. In opposition to the

automobile dealership's motion for summary judgment, the

plaintiffs relied on § 85A, contending that, as the owner of the

courtesy vehicle, the dealership was presumptively vicariously

liable for the injuries caused by the customer's wife.

We conclude that, under the circumstances, the Graves

Amendment protects the automobile dealership from being held

vicariously liable for the tortious conduct of the driver of its

courtesy vehicle. In particular, the record on summary judgment

indisputably demonstrates that the dealership provided the

courtesy vehicle in consideration for the customer's over-all

service repair business, and thus it "rent[ed]" or "lease[d]"

the vehicle even though it did not charge the customer for his

use of the vehicle as a line item separate from the service

work. Further concluding that the record is devoid of any basis

whatsoever for liability against a second dealership defendant

4

and that there is a dispute of material fact as to the negligent

entrustment claim against the customer, we affirm the grant of

summary judgment in favor of the dealership defendants, vacate

the grant of summary judgment insofar as it pertains to the

customer, and remand the matter to the Superior Court for

further proceedings.

1. Background. a. Facts. "The following facts are

either undisputed 'or viewed in the light most favorable to

. . . the party against [whom] summary judgment entered.'" HSBC

Bank USA, N.A. v. Morris, 490 Mass. 322, 323 (2022), quoting

Berry v. Commerce Ins. Co., 488 Mass. 633, 634 (2021).

In August 2016, the defendant Kolawole Oke brought his car

to the defendant MBF Auto, LLC, doing business as Mercedes Benz

of Caldwell (MBF Auto), in New Jersey to be serviced . Because

the service work was expected to require MBF Auto to hold Oke's

car for more than three hours, MBF Auto provided a courtesy

vehicle to Oke for his use while his car was being serviced.

The courtesy vehicle was owned by and registered to MBF Auto,

one of approximately 125 vehicles in the "loaner car fleet"

maintained by the dealership.

Prior to supplying the courtesy vehicle, MBF Auto required

Oke to provide his driver's license, proof of insurance, and a

credit card. Oke also signed a document entitled "loaner car

authorization form," pursuant to which, inter alia, he

5

represented that he had a valid driver's license, he agreed that

he would return the courtesy vehicle within twenty-four hours of

notification that repairs had been completed on his car, and he

acknowledged both that he would be charged a daily fee if he

failed to return the courtesy vehicle timely and that he would

be responsible for all third-party claims arising from his use

of the courtesy vehicle.

In addition, Oke signed a document entitled "courtesy car

agreement" on which Oke's driver's license number, his insurance

carrier and policy number, and the last four digits of his

credit card number were recorded. The agreement specified the

make, model, year, license plate number, and "car number" of the

courtesy vehicle and set forth a "rate" of "$0.00" per mile for

the vehicle, with no "net amount due." The agreement provided

additional terms of the courtesy vehicle arrangement, including

that the vehicle was "[l]imited to operation within 100 mile

radius of Mercedes-Benz of Caldwell[, New Jersey]." Just above

Oke's name and signature, in a font that was noticeably larger

than the other provisions in the agreement, the agreement

provided: "UNDERSIGNED CLIENT IS THE ONLY PERSON AUTHORIZED TO

OPERATE VEHICLE." This term was boldfaced and in all capital

letters. Oke again acknowledged that he would be charged a

daily rate should he fail to return the courtesy vehicle within

twenty-four hours of receiving notice that repairs had been

6

completed on his own car; and he again agreed "[t]o hold Lessor

harmless and to assume full responsibility for any loss,

damage[,] or any claim that may occur, to any person, or

persons, or any other property, of any kind, through the use by

any person including the Lessee of the above vehicle while it is

entrusted to Lessee's use and/or care." At his deposition, Oke

testified that he understood that he was the only person

authorized to operate the courtesy vehicle.3 Oke's then-wife,

the defendant Shanitqua Steele, was not at MBF Auto and was not

involved in the courtesy vehicle transaction.

Despite the terms of these agreements, Oke drove the

courtesy vehicle to Boston, more than one hundred miles from MBF

Auto. While there, Oke drove the vehicle, with Steele as a

passenger, to visit his lawyer. He parked the courtesy vehicle

illegally in a drop-off only zone near a crosswalk; while he

attended to his errand, Steele, who Oke knew did not have a

driver's license, remained in the vehicle. Oke left the key in

the ignition, the engine running, and the turn signal activated.

3 In one joint statement of undisputed facts, the plaintiffs

admit that Steele did not have permission from Oke or MBF Auto

to drive the courtesy vehicle; however, in a different joint

statement of undisputed facts, the plaintiffs deny this same

fact, on the ground that MBF Auto did not read the courtesy

vehicle agreements aloud to Oke and that Oke left Steele in the

vehicle with the engine running. We address these arguments

infra.

7

Shortly thereafter, a parking enforcement officer asked

Steele to move the vehicle. Steele, who understood that she did

not have permission to drive the vehicle, nonetheless moved into

the driver's seat. She pressed a button ostensibly to

deactivate the turn signal; instead, the car rolled forward

through a red traffic light and struck the plaintiff Maria

Blanca Elena Garcia, who was walking in the crosswalk. Garcia

suffered severe injuries.

b. Procedural history. Garcia and her husband, the

plaintiff José Fafián Seijo, sued MBF Auto, MBB Auto, LLC, doing

business as Mercedes Benz of Brooklyn (MBB Auto)4 (together with

MBF Auto, dealership defendants), Oke, and Steele, alleging

negligence as to Steele and the dealership defendants, negligent

entrustment as to Oke, and loss of consortium as to all

defendants. A Superior Court judge granted summary judgment in

favor of Oke and the dealership defendants.5 The plaintiffs

timely appealed, and this court transferred the case sua sponte.

2. Discussion. a. Standard of review. "Our review of a

decision on a motion for summary judgment is de novo." HSBC

4 Although the plaintiffs initially contended that MBB Auto

co-owned the courtesy vehicle, they now admit that MBB Auto was

neither the owner of the courtesy vehicle nor otherwise involved

in the courtesy vehicle transaction between MBF Auto and Oke.

The record being devoid of any basis for MBB Auto's liability,

we affirm the grant of summary judgment in its favor.

5 Steele did not seek summary judgment.

8

Bank USA, N.A., 490 Mass. at 326, quoting Berry, 488 Mass. at

636. Viewing "the evidence in the light most favorable to the

party against whom summary judgment entered," HSBC Bank USA,

N.A., supra at 326-327, "[s]ummary judgment is appropriate where

there is no material issue of fact in dispute and the moving

party is entitled to judgment as a matter of law." Id. at 326.

We also "review questions of statutory interpretation de

novo." Conservation Comm'n of Norton v. Pesa, 488 Mass. 325,

331 (2021). In construing a statute, we "start . . . with the

language of the statute." Williams v. Taylor, 529 U.S. 420, 431

(2000). "It is a 'fundamental canon of statutory construction'

that, 'unless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning.'" Sandifer

v. United States Steel Corp., 571 U.S. 220, 227 (2014), quoting

Perrin v. United States, 444 U.S. 37, 42 (1979). We do not

construe terms in isolation; instead, we consider the specific

language of a provision in the context of the statute as a

whole. See Yates v. United States, 574 U.S. 528, 537 (2015)

(ordinary meaning may be different in "the specific context in

which that language is used, and the broader context of the

statute as a whole" [citation omitted]). Where the statutory

command is straightforward, "there is no reason to resort to

legislative history." United States v. Gonzales, 520 U.S. 1, 6

(1997). See Burlington N. R.R. v. Oklahoma Tax Comm'n, 481 U.S.

9

454, 461 (1987) ("Legislative history can be a legitimate guide

to a statutory purpose obscured by ambiguity, but [i]n the

absence of a clearly expressed legislative intention to the

contrary, the language of the statute itself must ordinarily be

regarded as conclusive" [quotations and citations omitted]).

b. Vicarious liability and the Graves Amendment. The

plaintiffs contend that MBF Auto is vicariously liable for the

tortious conduct of Steele. They rely on § 85A, which

establishes a presumption that evidence that the vehicle was

registered in the name of the defendant as owner at the time of

an accident involving the vehicle "shall be prima facie evidence

that [the vehicle] was then being operated by and under the

control of a person for whose conduct the defendant was legally

responsible, and absence of such responsibility shall be an

affirmative defence." G. L. c. 231, § 85A. The plaintiffs

maintain that § 85A precludes summary judgment because MBF Auto,

as the registered owner of the courtesy vehicle, was

presumptively in control of Steele at the time of the accident

giving rise to the plaintiffs' negligence claim under the theory

of vicarious liability.

MBF Auto contends, and the motion judge agreed, that the

Graves Amendment preempts § 85A and that, under the

circumstances of the present case, the Graves Amendment

10

precludes holding MBF Auto vicariously liable for Steele's

conduct. The Graves Amendment provides, in relevant part:

"An owner of a motor vehicle that rents or leases the

vehicle to a person (or an affiliate of the owner) shall

not be liable under the law of any State or political

subdivision thereof, by reason of being the owner of the

vehicle (or an affiliate of the owner), for harm to persons

or property that results or arises out of the use,

operation, or possession of the vehicle during the period

of the rental or lease, if -- (1) the owner (or an

affiliate of the owner) is engaged in the trade or business

of renting or leasing motor vehicles; and (2) there is no

negligence or criminal wrongdoing on the part of the owner

(or an affiliate of the owner)." (Emphases added.)

49 U.S.C. § 30106(a). Where applicable, the Graves Amendment

expressly preempts State laws, such as § 85A. See Hillman v.

Maretta, 569 U.S. 483, 490 (2013) ("Under the Supremacy Clause,

Congress has the power to pre-empt [S]tate law expressly"). In

particular, its protection extends to owners of vehicles that

rent or lease the vehicle, are in the business or trade of

renting or leasing vehicles, and are not negligent or criminal

in connection with the rental or lease. The plaintiffs maintain

that the Graves Amendment does not apply to MBF Auto's courtesy

vehicle program, arguing principally that MBF Auto did not rent

or lease the vehicle because it provided the vehicle merely as a

courtesy to Oke, receiving no consideration for doing so. They

also maintain that MBF Auto was negligent in its administration

of its courtesy vehicle program.

11

i. Rent or lease requirement. To trigger the protection

afforded to rental car companies pursuant to the Graves

Amendment, the owner of the car in question, inter alia, must

have "rent[ed]" or "lease[d]" the car. 49 U.S.C. § 30106(a).

In other words, the owner must have received consideration in

exchange for the car. See Black's Law Dictionary 909 (8th ed.

2004) (defining "lease" as "[t]o grant the possession and use of

[land, buildings, rooms, movable property, etc.] to another in

return for rent or other consideration" [emphasis added]); id.

at 1322 (defining "rent" as "[c]onsideration paid, usu[ally]

periodically, for the use or occupancy of property [esp[ecially]

real property]" [emphasis added]).6 Accord Thayer v. Randy

Marion Chevrolet Buick Cadillac, LLC, 30 F.4th 1290, 1293 (11th

Cir. 2022) (analyzing Graves Amendment and determining that "to

6 "Dictionaries are useful aids in determining a word's

ordinary meaning." Penobscot Nation v. Frey, 3 F.4th 484, 491

(1st Cir. 2021), cert. denied sub nom. United States v. Frey,

142 S. Ct. 1668 (2022), and cert. denied, 142 S. Ct. 1669

(2022), citing Octane Fitness, LLC v. ICON Health & Fitness,

Inc., 572 U.S. 545, 553-554 (2014) (interpreting "exceptional"

based on dictionary definitions), and Kellogg Brown & Root

Servs., Inc. v. United States ex rel. Carter, 575 U.S. 650, 662

(2015) (defining "pending" using dictionary definitions). See

Yates, 574 U.S. at 537 ("Ordinarily, a word's usage accords with

its dictionary definition").

The eighth edition of Black's Law Dictionary, "which was

current when the Graves Amendment was enacted and for several

years thereafter, does not define 'rent' as a verb." Thayer v.

Randy Marion Chevrolet Buick Cadillac, LLC, 30 F.4th 1290, 1293

n.3 (11th Cir. 2022).

12

rent or lease a vehicle requires an exchange of consideration

for the use of the vehicle").7

In the present case, MBF Auto contends that, even though it

provided Oke with a vehicle as a "courtesy," and thus did not

charge Oke to use the vehicle, it received consideration for the

vehicle in the form of acquiring the opportunity to perform the

repair work on Oke's car. Specifically, MBF Auto maintains that

the courtesy vehicle was part of a larger transaction to perform

repair work on Oke's car even though the courtesy vehicle itself

was not delineated as a separate line item in the service deal.

The plaintiffs, by contrast, argue that, because the courtesy

vehicle was provided to Oke free of any additional charge, MBF

Auto did not receive consideration and the vehicle thus was not

"rent[ed]" or "lease[d]" as required by the Graves Amendment.

Consideration is the inducement to a contract; it can take

the form of an act, a forbearance, or a return promise bargained

for and received by a promisor from a promisee. See Black's Law

7 The parties do not contend, and we see nothing to suggest,

that the context of the statute as whole indicates an

alternative construction of the term "rent" or "lease." See

Pub. L. No. 109-59, 109th Cong., 1st Sess., Title X, Subtitle B,

§ 10208(a), 119 Stat. 1935 (2005). The Graves Amendment was a

"Miscellaneous Provision[]" to the "Safe, Accountable, Flexible,

Efficient Transportation Equity Act: A Legacy for Users," 119

Stat. 1144, a statute that does not use the terms "rent" or

"lease" other than according to their ordinary meanings. See,

e.g., 119 Stat. 1765. And, because the words of the statute are

unambiguous, we need not consult its legislative history.

Gonzales, 520 U.S. at 6.

13

Dictionary, supra at 324 (defining "consideration" as

"[s]omething [such as an act, a forbearance, or a return

promise] bargained for and received by a promisor from a

promisee; that which motivates a person to do something,

esp[ecially] to engage in a legal act"); Webster's Third New

International Dictionary 484 (1993) (defining "consideration" as

"something given as recompense: as . . . something that is

legally regarded as the equivalent or return given or suffered

by one for the act or promise of another: an act or forbearance

or the promise of it done or given by one party").

Consideration need not take the form of a monetary payment.

See Thayer, 30 F.4th at 1294 ("consideration is broader than

simply the payment of money"). See also Stanley v. Schwalby,

162 U.S. 255, 276 (1896) ("A valuable consideration may be other

than the actual payment of money, and may consist of acts to be

done . . ."). It extends to "any act of [one party] from which

the [other party] . . . derives a benefit or advantage"

(citation omitted). Black's Law Dictionary, supra at 324.

"[C]onsideration in its widest sense is the reason, motive, or

inducement, by which a man is moved to bind himself by an

agreement" (citation omitted). Id. Accord Huang v. Ma, 491

Mass. 235, 240 (2023) ("a reciprocal exchange of benefit and

detriment constitut[es] consideration").

14

Here, MBF Auto provided the courtesy vehicle as part of a

servicing transaction to repair Oke's car; in exchange for the

opportunity to service Oke's car and to be paid for that repair

work, MBF Auto offered the repair work itself and the courtesy

vehicle as further inducement to obtain Oke's business. See

Thayer, 30 F.4th at 1294 & n.4 ("[the owner] provides vehicles

in exchange for the opportunity to service the customer's car"

and "the provision of a vehicle may serve as an inducement for

the customer").

The plaintiffs maintain that the Graves Amendment does not

apply where, as here, the courtesy vehicle was not billed

separately from MBF Auto's repair work on Oke's car. However,

"the law does not require every term of the contract to have a

separately stated consideration." Edwards v. First Am. Corp.,

798 F.3d 1172, 1182 (9th Cir. 2015). Rather, "[a] single

performance or return promise may . . . furnish consideration

for any number of promises." Id., quoting Restatement (Second)

of Contracts § 80 comment a (1981). See 3 R.A. Lord, Williston

on Contracts § 7:51 (4th ed. 2008) (stating basic premise that

one consideration may support several promises). Indeed, the

same argument made by the plaintiffs here was squarely rejected

by the United States Court of Appeals for the Eleventh Circuit,

which noted that often rental companies provide a vehicle as

15

part of a larger package deal and yet they are entitled to the

protection of the Graves Amendment. Thayer, 30 F.4th at 1294.8

The plaintiffs' contention that MBF Auto is not entitled to

the protection of the Graves Amendment because the courtesy

vehicle agreements refer to the vehicle as a "loaner" car fares

no better.9 To the contrary, the labels used by the contracting

parties are not controlling. See Thayer, 30 F.4th at 1294

("Whatever label [the owner] happened to assign to the vehicle

here does not control the legal determination of whether the

Graves Amendment applies. The substance of the transaction, not

the label used, controls"). Cf. Lone Star Silicon Innovations

LLC v. Nanya Tech. Corp., 925 F.3d 1225, 1229 (Fed. Cir. 2019),

citing Waterman v. Mackenzie, 138 U.S. 252, 256 (1891) (legal

effect of agreement "depends on the substance of what was

8 To the extent the plaintiffs argue that MBF did not "rent"

the courtesy vehicle because Oke was charged a one-time fee for

the service work and thus was not charged periodically as rent

usually is, see Black's Law Dictionary, supra at 1322, we

disagree. It is indisputable that the Graves Amendment protects

traditional rental car companies, yet "most rental cars are

rented for a one-time payment, meaning that fact cannot preclude

application of the Graves Amendment." Thayer, 30 F.4th at 1294.

9 The term "loan" means "[t]o lend, esp[ecially] money,"

Black's Law Dictionary, supra at 955, and "lend" means "[t]o

allow the temporary use of (something), sometimes in exchange

for compensation, on condition that the thing or its equivalent

be returned," id. at 921. The plaintiffs assert that because

the courtesy vehicle was a "loaner," it could not also have been

rented or leased. As is clear from their definitions, however,

the terms are not mutually exclusive.

16

granted rather than formalities or magic words"). As discussed

supra, looking at the substance of the transaction between MBF

Auto and Oke, the courtesy vehicle meets the ordinary meaning of

"rent[]" or "lease[]" because it was provided to Oke in exchange

for consideration -- namely, the opportunity to service Oke's

car.10

ii. Business of renting or leasing vehicles requirement.

To qualify for the protection of the Graves Amendment, MBF Auto

must be in "the trade or business of renting or leasing motor

10The plaintiffs, citing Zizersky v. Life Quality Motor

Sales, Inc., 21 Misc. 3d 871 (N.Y. Sup. Ct. 2008), contend

perfunctorily that extending the Graves Amendment to owners of

courtesy vehicles like the one at issue in the present case

raises concerns under the commerce clause of the United States

Constitution. See art. 1, § 8, cl. 3, of the United States

Constitution. See also Zizersky, supra at 880 (including

"loaner" vehicles would "raise a question about the

constitutionality of the [Graves] Amendment" because "[n]othing

has been proffered on this motion to suggest that a 'loaner'

vehicle, even if connected to the purchase or lease of another

vehicle, has any effect whatsoever on the market for leased or

rented vehicles"). The argument runs contrary to the near

unanimous holdings of Federal courts that have considered

similar challenges. See Rodriguez v. Testa, 296 Conn. 1, 22

(2010) (collecting cases and concluding that "all but one

district court have found [the Graves Amendment] to be a proper

exercise of the commerce power"). Indeed, it is beyond question

that Congress may protect and regulate "the instrumentalities of

interstate commerce," United States v. Lopez, 514 U.S. 549, 558

(1995), and "those activities having a substantial relation to

interstate commerce," id. at 558-559. The regulation of rentals

of courtesy vehicles falls within this power. In fact, here,

the MBF Auto courtesy car agreement limited Oke to driving the

vehicle within one hundred miles of Caldwell, New Jersey, a

radius that includes multiple other States. And, in

contravention of this limitation, Oke drove the courtesy vehicle

into Massachusetts.

17

vehicles." 49 U.S.C. § 30106(a)(1). The record on summary

judgment indisputably shows that it was. Specifically, MBF Auto

maintained approximately 125 vehicles in its "loaner car fleet."

Since 2014, MBF Auto has "regularly provide[d] loaner vehicles

to customers as a courtesy when a customer's car is being

serviced for more than three hours." At any given time,

approximately ninety to ninety-five percent of those vehicles

are with customers, and in the month of August 2016, when the

accident at issue occurred, MBF Auto provided courtesy vehicles

to its customers 886 times.11

iii. Negligence. In addition to the aforementioned

requirements, an owner who rents or leases a vehicle is

protected from being held vicariously liable only if there was

"no negligence or criminal wrongdoing on the part of the owner."

49 U.S.C. § 30106(a)(2).12 "To prevail on a negligence claim, a

plaintiff must prove that the defendant owed the plaintiff a

duty of reasonable care, that the defendant breached this duty,

11The plaintiffs did not contest before the motion judge

that MBF Auto was in the business of renting or leasing

vehicles; the argument is thus waived. See Boss v. Leverett,

484 Mass. 553, 563 (2020) ("issues not raised below cannot be

argued for the first time on appeal"). Even on appeal, the

plaintiffs mention the issue only briefly and make no argument

separate from their challenge that the courtesy vehicle was not

"rented" or "leased."

12The plaintiffs do not argue MBF Auto engaged in any

criminal wrongdoing.

18

that damage resulted, and that there was a causal relation

between the breach of the duty and the damage." Jupin v. Kask,

447 Mass. 141, 146 (2006). Although "[w]e generally consider

the latter three questions . . . to be the special province of

the jury," id., summary judgment may enter where a plaintiff

fails to raise a genuine dispute of material fact. See, e.g.,

Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010) ("The

issue whether an attorney's negligence was a proximate cause of

a client's loss may be resolved at the summary judgment stage").

See also Patterson v. Christ Church in the City of Boston, 85

Mass. App. Ct. 157, 159 (2014) ("Negligence cases are not

frequently resolved by summary judgment, but a judge may decide

the issue as [a] matter of law when no rational view of the

evidence permits a finding of negligence" [quotation and

citation omitted]).

The plaintiffs contend that MBF Auto owed a duty of care to

third parties, like the plaintiffs, to reasonably administer and

supervise its courtesy vehicle program, and that its failure to

do so caused them harm. The plaintiffs maintain that MBF

committed a breach of its duty in several ways, the first of

which was by failing to take additional steps to verify that

Oke's driver's license was valid beyond accepting his

representation that it was. Regardless of whether MBF Auto

should or could verify the validity of Oke's driver's license,

19

no rational view of the record supports a finding that the

failure to verify Oke's driver's license caused Steele to drive

the courtesy vehicle, resulting in the plaintiffs' injuries.13

Next, the plaintiffs maintain that MBF Auto committed a

breach of its duty of care in its administration and supervision

of the courtesy car program by failing to train its employees to

instruct Oke orally on the restrictions placed on his use of the

vehicle –- namely, that he could only use the vehicle within a

one hundred-mile radius of the dealership and that he was the

only authorized driver. These restrictions, however, were set

forth in writing in the courtesy vehicle agreements, which Oke

signed. Most pertinent to the accident -- which occurred while

Steele was driving the courtesy vehicle -- one of the agreements

set forth in large, boldfaced, capital letters, right above the

signature line: "UNDERSIGNED CLIENT IS THE ONLY PERSON

AUTHORIZED TO OPERATE VEHICLE." Moreover, Oke knew at the time

he signed the courtesy vehicle agreements that he was the only

person authorized to operate the courtesy vehicle. Thus, no

jury could reasonably conclude that MBF Auto's alleged failure

to train its employees to orally explain the provisions of the

written contract to Oke caused the accident. The plaintiffs

have not raised a genuine dispute of material fact that MBF Auto

13Oke represented that he had a valid driver's license, and

nothing in the record contradicts that, in fact, he did.

20

negligently caused the accident and thus was not protected by

the Graves Amendment;14 accordingly, MBF Auto is entitled to

summary judgment.15

c. Negligent entrustment. We turn next to the plaintiffs'

claim of negligent entrustment against Oke. "In order to

prevail on a claim of negligent entrustment of an automobile, it

is necessary for the plaintiff to show, among other things, that

the defendant owned or controlled the motor vehicle concerned,

and that the defendant gave the driver permission to operate the

vehicle" (quotation and citation omitted).16 Alioto v. Marnell,

402 Mass. 36, 40 (1988).17 We have described the requisite

"permission" as "knowingly allowing an incompetent operator to

drive the defendant's vehicle" (citation omitted). Barnstable

14For at least these same reasons, the plaintiffs' claim

that MBF Auto is directly liable (as opposed to vicariously

liable) for its negligence in the administration of its courtesy

vehicle program also fails.

15In light of the foregoing, plaintiffs' loss of consortium

claim as it pertains to the dealership defendants also fails.

See Sena v. Commonwealth, 417 Mass. 250, 264 (1994) ("a claim

for loss of consortium requires proof of a tortious act that

caused the claimant's spouse personal injury").

16It is undisputed that Oke controlled the courtesy

vehicle.

17A claim of negligent entrustment also requires "proof of

the driver's incompetence, and proof of the defendant owner's

knowledge of that incompetence." Leone v. Doran, 363 Mass. 1,

11, vacated in part on other grounds, 363 Mass. 886 (1973).

Here, it is not disputed that Oke knew that Steele lacked a

driver's license.

21

County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978).

The record shows that Oke left the courtesy vehicle running with

the key in the ignition while it was illegally parked; he

attended to his errand while Steele remained in the vehicle.

This conduct, a rational finder of fact could reasonably

conclude, constituted implicit permission or knowing consent for

Steele to move the illegally parked vehicle if needed.18 See,

e.g., Watson v. Salvoni, 27 Mass. App. Ct. 735, 737 (1989) (in

connection with claim for negligent entrustment, examining

whether parents gave "implied" permission for son to drive moped

through prior conduct). See generally A.L. Cohen, Cause of

Action for Negligent Entrustment of Motor Vehicle, 23 Cause of

Action 2d 265 § 10 (2003 & May 2023 update) ("If the owner knew,

or had reasonable cause to know, that his or her actions or

omissions would place the operation of a motor vehicle in the

care of a person unfit to handle that responsibility, the test

for permissive use is satisfied").19

18Oke's reliance on cases concerning stolen vehicles is

inapt where, as here, the vehicle was not stolen; moreover, "the

reasoning of cases involving keys negligently left in ignitions

is no longer persuasive." Poskus v. Lombardo's of Randolph,

Inc., 423 Mass. 637, 640 (1996). See R.L. Currie Corp. v. East

Coast Sand & Gravel, Inc., 93 Mass. App. Ct. 782, 785 & n.5

(2018) (collecting cases).

19Cf. Drescher v. Travelers Ins. Co., 359 Mass. 458, 460-

461 (1971) (operation of vehicle was "impliedly sanctioned" by

owner); Dufour v. Arruda, 299 Mass. 46, 47-48 (1937) (operation

of vehicle was with "implied consent" of owner). Other

22

3. Conclusion. The grant of summary judgment in favor of

MBF Auto and MBB Auto, see note 4, supra, is affirmed. The

grant of summary judgment in favor of Oke is reversed, and the

case is remanded for further proceedings.

So ordered.

jurisdictions have concluded that the permission element of a

claim for negligent entrustment includes implied permission or

knowledge. See, e.g., Morin v. Moore, 309 F.3d 316, 327 (5th

Cir. 2002) ("for purposes of a negligent entrustment claim,

permission may be express or implied"); Armenta v. A.S. Horner,

Inc., 2015-NMCA-092, ¶ 22, quoting Allstate Ins. Co. v. Jensen,

1990–NMSC–009, ¶ 8 n.3 ("Implied permission to use a motor

vehicle can be inferred from a course of conduct or relationship

between the parties, or other facts and circumstances signifying

the assent of the owner"); Kingrey v. Hill, 245 Va. 76, 78

(1993) ("In considering negligent entrustment of automobiles, we

have required express permission, evidence of a pattern of

conduct supporting implied permission, or evidence of knowledge

that an automobile would be used notwithstanding explicit

instructions to the contrary" [emphasis added]).