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Unpublished Opinion No. 2005-UP-130
Heard January 12, 2005 – Filed February 18, 2005

PER CURIAM: ECO Services of South Carolina, Inc. (ECO) and Joseph Jenkins, appeal from jury verdicts against them on Starr Gadson’s claims for negligent entrustment. We affirm as to Jenkins and reverse as to ECO.

Jenkins worked for ECO, solid waste contractor that services Beaufort, Jasper, and Hampton counties. As a “helper,” Jenkins used ECO’s trucks to go back for missed pickups. On August 6, 1997, Jenkins failed to return ECO’s truck at then end of the day to the Hilton Head office. Instead, he drove the truck to Hardeeville. Gadson testified that she saw Jenkins drive the truck to a friend’s house. Jenkins’s cousin John Jenkins was riding in the front of the truck and Gadson’s brother and another passenger were riding in the back. Gadson’s brother climbed out of the truck and went home. Gadson and several other people climbed into the back of the truck and Jenkins drove them to McDonald’s. After they ate, Jenkins drove them to a store where John bought a cigar and one or two wine coolers, which he shared with another passenger. Jenkins then drove them to the Purrysburg Landing, where they talked for about an hour.

When the group started back to Hardeeville, John was driving the truck. [1] He suddenly sped up to around 80 miles per hour and then lost control of the vehicle, resulting in the accident. Gadson and the other passengers in the back were thrown from the truck.

Gadson, along with others injured in the accident, brought suit alleging negligence and negligent entrustment against ECO, Jenkins, and John. [2] The case was tried to a jury. ECO and Jenkins were represented at trial, but Jenkins did not appear. John was not represented and did not appear at trial. The jury returned a general verdict against all three defendants. The jury found, in special interrogatories, as follows: (1)ECO entrusted its vehicle to Jenkins; (2) ECO was negligent in entrusting its vehicle to Jenkins; (3) ECO’s negligence proximately caused the plaintiffs’ injuries; (4) John was the driver of the vehicle; (5) John’s negligence proximately caused the plaintiffs’ injuries; (6) Jenkins was not the driver of the vehicle; and (7) Jenkins was negligent in entrusting the vehicle to John. It awarded Gadson $50,000 in actual damages.

ECO and Jenkins both requested and were granted ten days to file post-trial motions. In their motions, ECO and Jenkins asked for JNOV and new trial based on alleged juror misconduct. [3] The trial court initially dismissed both motions finding they were untimely. On remand from this court, the trial court considered both motions on the merits, but denied them. ECO and Jenkins appealed.

When reviewing the denial of a motion for a directed verdict or JNOV, this court uses the same standard as the trial court by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). The motion must be denied when the evidence is susceptible of more than one inference. Id. at 300, 536 S.E.2d at 418. Neither this court nor the trial court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence. Id.

ECO and Jenkins both argue the trial court erred in denying their motions for directed verdict and JNOV on Gadson’s claims for negligent entrustment.

“The theory of negligent entrustment provides: ‘the owner or one in control of the vehicle and responsible for its use who is negligent in entrusting it to another can be held liable for such negligent entrustment.’” Am. Mut. Fire Ins. Co. v. Passmore, 275 S.C. 618, 622, 274 S.E.2d 416, 418 (1981) (quoting 19 A.L.R.3d 1175, 1192).

It is undisputed that ECO owned the truck involved in the accident. ECO does dispute that Jenkins had authority to be driving the truck on the night of the accident. Lou Joseph Diaz, general manager for ECO, testified that Jenkins had never taken the truck to Hardeeville after work hours prior to the date of the accident. However, one of the other passengers injured in the truck contradicted this testimony when he said that he had seen Ricky driving the truck around Hardeeville in the evenings for a week before the accident.

Jenkins was suspended twice early in 1997 for unexcused absences from work. Additionally, a note in Jenkins’s personnel file indicated that Jenkins was terminated for unauthorized use of a company vehicle on July 11, 1997—three weeks before the accident occurred. When confronted, Diaz testified that the date on the note was probably a typographical error by the personnel office in Charleston. He further testified that the note was probably intended to reflect that Jenkins was fired on August 7, 1997 as a result of the accident, and that Jenkins had not been disciplined in July of 1997. Diaz noted that this could be confirmed by the personnel office; however, the ECO employee who inserted the note into the file was never called to testify. Hector Calderon, human resource director at ECO, testified that ECO never fired Jenkins in July of 1997. He stated ECO’s payroll records showed Jenkins was working for the company during that time. We agree with ECO that the only reasonable conclusion is that the notation that Jenkins was terminated on July 11, 1997 is a typographical error. See Hopson v. Clary, 321 S.C. 312, 314, 468 S.E.2d 305, 307 (Ct. App. 1996) (stating that although we are bound to review the record in a light most favorable to respondents, we “cannot ignore facts unfavorable to that party.”) However, even if we accept the notation as evidence ECO had previously terminated Jenkins for unauthorized use of a vehicle, we find the record does not support the jury’s finding of negligent entrustment against ECO.

Gadson asserts that the evidence proves ECO knew that Jenkins was an irresponsible employee, and therefore was likely to cause harm to third parties with the truck. We disagree. The crux of the issue is whether ECO knew or should have known that Jenkins intended or was likely to use the truck in such a manner as to create an unreasonable risk of harm to others. The only inference from the evidence in the record is that Jenkins had attendance problems at work about six months before the accident, and that he was known to take ECO’s trucks home without authorization. Jenkins’s driving record contained no violations, accidents, or suspensions over the three-year period prior to the accident. There is simply no evidence that ECO knew that Jenkins was likely to drive the truck recklessly, or that ECO knew that Jenkins was likely to entrust the truck to someone else who would drive it recklessly.

Gadson attempts to close this gap by using negative inferences from the fact that Jenkins did not testify at the trial. See Duckworth v. First Nat’l Bank, 254 S.C. 563, 576, 176 S.E.2d 297, 304 (1970) (“If a party knows of an available witness on a material issue and such witness is within his control and if without satisfactory explanation he fails to call him, the jury may draw the inference that the testimony of the witness would not have been favorable to such party.”) However, this rule is not applicable here because Jenkins was no longer an employee of ECO at the time of trial and thus was no longer under ECO’s control. Id. at 576-77, 176 S.E.2d at 304.

The test for legal sufficiency of the evidence in South Carolina is “whether the evidence serves to prove a fact or permits an inference of fact that would enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the right of the plaintiff to recover.” Mahaffey v. Ahl, 264 S.C. 241, 248, 214 S.E.2d 119, 122 (1975). We find insufficient evidence to support the knowledge prong of Gadson’s negligent entrustment claim against ECO. The evidence presented is simply not enough to permit an ordinarily intelligent mind to rationally infer that ECO knew that Jenkins was likely to entrust the vehicle to another who would drive recklessly. Accordingly, we find the trial court erred in denying ECO’s motions for directed verdict and JNOV.

Jenkins’ liability for negligently entrusting the truck to John is a separate issue. Jenkins did not dispute that he had control of the vehicle, or that he entrusted the vehicle to John. Additionally, Jenkins has not disputed that this entrustment was unauthorized. We find the record supports the inference that Jenkins knew or should have known that John’s use of the vehicle was likely to cause harm. Jenkins knew that John had been drinking alcoholic beverages. Jenkins was apparently familiar with John’s character, because he was John’s cousin. Moreover, because Jenkins did not testify on his own behalf, the jury was permitted to infer that any testimony would have been unfavorable. See McCowan v. Southerland, 253 S.C. 9, 12, 168 S.E. 573, 574 (1969) (stating that as to facts that were peculiarly within defendant’s knowledge, the defendant’s unexplained failure to testify raises an inference that his testimony, if it had been submitted, would have been unfavorable to his position). Accordingly, we find the trial court did not err in denying Jenkins’s motions for directed verdict and JNOV.

[1] The official accident investigation report listed Jenkins as the driver of the truck, but the jury by special interrogatory found the driver at the time of the accident to be John.

[2] The other cases have been settled and are no longer a part of this appeal. In addition, John did not appeal the judgment against him.

[3] After the trial, Jenkins’ attorney spoke to one of the jurors and discovered that several of the jurors either knew of Jenkins and John or knew of their reputations. Additionally, one of the jurors had a cousin who worked for ECO. The attorney prepared an affidavit testifying to what he heard.

[4] In Lydia v. Horton, 343 S.C. 376, 540 S.E.2d 102 (Ct. App. 2000), this court adopted the Restatement (Second) of Torts §§ 308 and 390 as the standard for negligent entrustment in South Carolina. Lydia involved a first party cause of action for negligent entrustment. The South Carolina Supreme Court reversed this court’s opinion, holding that the plaintiff could not recover on a first party negligent entrustment cause of action because “(1) South Carolina’s modified comparative negligence scheme would bar recovery for this type of claim, and (2) the public policy considerations addressed . . . in Tobias v. Sports Club, Inc., 332 S.C. 90, 504 S.E.2d 318 (1998).” Lydia v. Horton, 355 S.C. 36, 39, 583 S.E.2d 750, 752 (2003). The supreme court also “decline[d] to adopt sections 308 and 390 of the Restatement” based on the facts of that case. Id. at 43, 583 S.E.2d at 754. We do not find the supreme court’s ruling in Lydia would prevent application of section 308 of the Restatement under the facts of the present case as the question addressed in Lydia was whether South Carolina recognizes a first party negligent entrustment claim.