Perez v. G & W Chevrolet, Inc.

GARGANO, J.

Appellants Jose D. Perez and Maria Perez brought this action against respondents to recover for the wrongful death of their daughter, Carmen Frias Perez. The complaint inter alia alleged that respondents negligently and carelessly sold a 1958 Volkswagen to appellants’ 19-year-old daughter and one Ramiro V. Silva; that respondents knew or should have known that the “purchasers were unlicensed, inexperienced and incompetent to drive a motor vehicle;” and that Miss Perez was killed in the vehicle about two weeks later while operating it in an incompetent and inexperienced manner. Respondents then filed a general demurrer to the complaint, and the demurrer was sustained with leave to amend. When appellants failed to amend, the action was dismissed. Appellants appeal from the judgment of dismissal.

Appellants rely on the doctrine of negligent entrustment to support their contention that the complaint stated a cause of action against respondents and that the trial judge erred when he sustained respondents’ general demurrer. In short, they argue that their complaint stated a cause of action under section 390 of the Restatement Second of Torts, which they maintain was adopted as the decisional law of this state

by Johnson v. Casetta,

197 Cal.App.2d 272 [17 Cal.Rptr. 81]. This section provides: ‘ ‘ One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner

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involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. ’ ’

We do not find it necessary to decide the question as to whether, section 390 of the Restatement Second of Torts accurately enunciates the law of this state as appellants maintain. Appellants’ complaint merely alleges that when respondents sold the vehicle in which their daughter was ultimately killed, they knew or should have known that she was unlicensed, inexperienced and incompetent to drive it. Appellants did not allege, however, that respondents knew or should have known that Miss Perez was going to drive the vehicle without a driver’s license and before she acquired driving experience, nor did they allege any facts from which such knowledge could reasonably be inferred. In short, the mere sale of an automobile to an unlicensed and inexperienced person does not constitute negligence per se. On the contrary, it is the sale of the automobile with actual or presumptive knowledge that the incompetent person is going to drive it that is the gravamen of the tort articulated in section 390. Thus, if appellants’ complaint is strictly construed, it does not state a cause of action; and since appellants elected not to amend, a strict construction is required. In fact, under these circumstances we must assume that they pleaded as strong a case as they could