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Kauffman v. Gullace

Decided: December 2, 1991.

SUSAN M. KAUFFMAN & MICHAEL KAUFFMAN, PLAINTIFFS-APPELLANTS,
v.
FRANCIS A. GULLACE, ZAYADIN BOYKO, JACK GULLACE, JOHN DOE 1-10 INDIVIDUALLY AND/OR XYZ CORP. 1-10 BODIES CORPORATE, DEFENDANTS/RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

King, Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiffs appeal from a summary judgment granted in favor of defendants Francis A. (Frank) Gullace and Jack Gullace. Plaintiff, Susan Kauffman, was injured in a two-vehicle accident in Bricktown, New Jersey, allegedly caused by the other driver. This case requires us to examine the scope of the presumption that the driver of a vehicle is the agent of the owner. We here extend the presumption to most entruster-operator relationships.

At the time of the accident the driver of the van which struck the Kauffman vehicle apparently identified himself as Francis Gullace. Frank Gullace, however, clearly was in Jersey City at the time of the accident. He contended that his practice was to leave his license and registration in the glove compartment of the van which he had leased from Ford Motor Credit Corporation. On the day in question, as was his weekly custom, he left the van with his uncle, Jack Gullace, who had driven Frank to the railroad station so that Frank could go to Jersey City where he worked on weekends at a bar he owned.

The uncle owned the Laurelton Circle Motor Inn and a laundry business in the Ocean Beach area which Frank managed during the week. A former employee of the laundry and later a temporary employee of the motor inn was one Zayadin (Dinny) Boyko, a Yugoslavian who spoke little English. Although plaintiffs initially contended that there was believable evidence from which a jury could have found that Frank Gullace drove the van at the time of the accident, it is reasonably clear that the driver was Dinny Boyko. The police report and later hospital report show that the driver was Francis Gullace apparently because either his credentials were presented

to police and to the hospital, or because Boyko misrepresented himself. As we noted earlier, Frank's license and registration were kept in the van's glove compartment. Further, plaintiff conceded at oral argument before us that the evidence admits of only one conclusion: Boyko was the driver.*fn1

This does not end the matter, however, since the depositions show that on occasion Boyko had driven Frank's car. Jack Gullace's deposition, read in its entirety by the trial judge, indicates that Boyko first worked for the laundry, from November through July, and then worked at the motel or even for Jack Gullace personally. Boyko's salary was not noted on the books of the motor inn from July until the accident, rather he was given cash for some jobs, and was permitted to stay overnight at the inn in a vacant room as compensation. Jack Gullace stated that he did not know if Frank let Boyko use the van. Further, he asserted that he did not remember whether he (Jack) let him use the van on occasion. When he was asked whether he permitted Boyko to use the vehicle when Frank left the van in Jack's care on a regular basis when Francis went to Jersey City, he stated: "I doubt that very much. I don't remember but I don't think so." Later when he was asked whether he could say that he absolutely did not permit Boyko to use the van, the answer was "I don't remember that, no. . . . I don't remember having given him permission to use Frank's van . . . I don't remember." The answers certainly were less than a ringing denial.

We must view the facts on this summary judgment motion giving all reasonable inferences to plaintiffs. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954). We can therefore posit that Boyko was Jack's employee,

and was known not to have a vehicle of his own. There was no notation on the police report or any indication that the vehicle had been hot-wired. Therefore, Boyko must have had a key.*fn2 Since Jack stated that he kept the only set of keys he possessed in his pocket, there is an implication that his "I don't remember" answers are either a true lack of recollection, or nothing more than a cover-up for his having permitted Boyko to use his nephew's van on the day in question. He did claim, however, that upon learning of the accident he checked and found that he still had the keys in his pocket. This claim would raise, but not determine a factual issue.

We do not know what Boyko was doing at the time of the accident. We do know, however, that Boyko had from time-to-time performed duties at Jack's laundry and later at his motel. According to Frank's deposition, he knew that Boyko did odd jobs for Jack, and also "sometimes he worked in the laundry," although he stated that at the time of the accident there were only two other employees of the laundry (and Dinny Boyko was not one of them).

There are two possible theories under which Jack or Frank Gullace could be held responsible for Boyko's negligence: vicarious responsibility and negligent entrustment. We note, however, that the complaint does not charge Frank Gullace with responsibility under either theory, but only as the driver. We must, therefore, examine these theories solely as they relate to Jack Gullace.

First, we have before us an unusual situation. The automobile was owned by Ford Motor Credit Corporation, and there is a presumption that the driver acted as the owner's agent. Townsend ...


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