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MARGARET JAHN v. DENNIS J. O'NEILL AND VIP CAR RENTAL (05/11/84)

filed: May 11, 1984.

MARGARET JAHN, APPELLANT,
v.
DENNIS J. O'NEILL AND VIP CAR RENTAL, INC.



No. 2188 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 81-16248.

COUNSEL

Barbara G. DeMarest, Plymouth, for appellant.

Jay E. Mintzer, Philadelphia, for appellees.

Rowley, Montemuro and Johnson, JJ.

Author: Montemuro

[ 327 Pa. Super. Page 359]

This matter is before the court on the appeal of Margaret Jahn from the lower court's grant of summary judgment in favor of VIP Car Rental, Inc., (hereinafter "VIP"), appellee. Appellant filed an action in trespass against Dennis J. O'Neill and VIP to recover for damages to her automobile incurred in an accident with an automobile operated by O'Neill and owned by VIP. VIP is an automobile lessor, and had leased the O'Neill vehicle to him. VIP moved for summary judgment on the basis that, as a matter of law, a lessor of a vehicle is not liable for property damage caused by its vehicle while driven by a lessee. Following the lower court's order granting VIP summary judgment, this appeal was filed timely.

To impose liability on a person for an injury resulting from the operation of a motor vehicle, "he must, except where liability is otherwise imposed by statute, either be in the actual operation thereof or in the control thereof, or stand in the relation of master or principal to the person whose act occasions the injury." 4 P.L.E. Automobiles and Motor Vehicles § 281 (emphasis added). Thus, the lessor of a motor vehicle is generally not liable for the negligence of a lessee while operating the vehicle. Littles v. Avis Rent-A-Car System, 433 Pa. 72, 248 A.2d 837 (1969); Turley v. Kotter, 263 Pa. Super. 523, 398 A.2d 699 (1979); see also 4 P.L.E. Automobiles and Motor Vehicles § 282, A lessor may be held liable, however, for the lessor's own negligence in leasing the vehicle for use by a person whom the lessor

[ 327 Pa. Super. Page 360]

    has reason to know is incompetent. Littles, supra; RESTATEMENT (SECOND) OF TORTS § 390 (1965).

Appellant does not contend that VIP should be held liable for O'Neill's negligence under the doctrine of respondeat superior, or that VIP was liable under § 390 of the Restatement of Torts for negligently leasing the vehicle to O'Neill. Instead, appellant's theory is that the Pennsylvania No-Fault Motor Vehicle Insurance Act*fn1 imposes liability on a lessor of a motor vehicle for property damage caused by a lessee's negligent operation of such vehicle.

Appellant relies on a provision of the No-fault Act which states:

Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle . . . . Security shall be provided . . . for the payment of damages for injury to or destruction of property in any one accident of amounts up to a total limit of five thousand dollars ($5,000).

40 P.S. § 1009.104(a). Appellant next points out that while this property damage coverage cannot be reached through No-fault basic loss benefits, 40 P.S. § 1009.103 (definition of "basic loss benefits"), it is available for any required tort liability, 40 P.S. § 1009.103 (definition of "insurance").*fn2 Then, in ascertaining the scope of this tort liability, appellant construes 40 P.S. § 1009.104(a) to statutorily create liability of an owner of a vehicle, for property damage caused by one who drives the vehicle with the owner's permission. Appellant ...


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