Appeal from the Order entered February 7, 2011 in the Court of Common Pleas of Dauphin County, Civil Division, No.2006-CV-0837-CV
The opinion of the court was delivered by: Lazarus, J:
BEFORE: GANTMAN, LAZARUS, and OLSON, JJ.
Sherri and David Price, husband and wife, (the Prices) appeal from the February 7, 2011 order entered in the Court of Common Pleas of Dauphin County granting defendant Lawrence Leibfried's (Leibfried) motion for summary judgment.*fn1 We affirm.
This negligence action arises out of a two-vehicle crash that occurred on January 12, 2006. That night, at approximately 10:45 p.m., Sherri Price (Price) was a passenger in her 1999 Chrysler Sebring. Leibfried, who was driving the Sebring, rear-ended a tractor-trailer. Price was injured in the accident.
Just prior to the accident, Price and Leibfried had been drinking alcohol at Defendant Riviera Tavern. Leibfried's blood alcohol content was between 0.21% and 0.217% within an hour after the crash.
In their complaint, the Prices alleged negligence and sought damages for Sherri's injuries and for loss of consortium. The complaint also alleged negligence against Riviera Tavern, claiming it served alcohol to Leibfried when he was visibly intoxicated, in violation of the Dram Shop Act. See 47 P.S. § 4- 493(a).
At the close of discovery, Leibfried filed a motion for summary judgment. In his motion, Leibfried averred that Price was vicariously liable for her own injuries, citing to 75 Pa.C.S.A. § 1574 (Permitting unauthorized person to drive).*fn2 Both the Prices and Riviera Tavern filed responses to the motion for summary judgment. On April 11, 2008, the Honorable Jeannine Turgeon granted summary judgment with respect to Leibfried only. The Prices appealed, and this Court quashed the appeal because the court did not properly certify the order as final pursuant to Pa.R.A.P. 341(c).*fn3 See Price v. Leibfried and Riviera Tavern Corp., 914 MDA 2008 (filed March 24, 2009) (unpublished memorandum).
The Prices filed a motion for reconsideration with the trial court. The court reaffirmed its prior order and made the following findings: "(1) the record establishes as an undisputed material fact that Plaintiff Sherri Price knowingly permitted Defendant Leibfried, an unauthorized/unlicensed driver, to operate her vehicle, . . . and, (2) as a matter of law, Plaintiff Sherri Price is therefore vicariously liable for Defendant Leibfried's negligence in the operation of her vehicle pursuant to 75 Pa.C.S.A. § 1574(b), as interpreted under Terwilliger v. Kitchen, 781 A.2d 1201, 1206 (Pa. Super. 2001)." Trial Court Order, 2/7/2011. The court determined that the Prices were precluded from recovering damages from Leibfried and thus granted his motion for summary judgment. The court further directed "that the issue of defendant Leibfried's negligence will remain an issue for a jury to determine in apportioning liability and that the jury will not be instructed that Leibfried's liability is imputed to plaintiff Sherri Price pursuant to 75 Pa.C.S.A. § 1574."
On appeal, the Prices raise the following claims:
(1) Is a defendant entitled to summary judgment based solely on his own testimony, when the plaintiff's testimony differs as to material facts regarding whether plaintiff authorized or permitted defendant to operate her vehicle on the night in question?
(2) Is 75 Pa.C.S.A. § 1574 applicable where the circumstances of the case and the testimony of the vehicle owner do not establish that the owner authorized or permitted the unlicensed driver to operate her vehicle?
(3) Pursuant to 75 Pa.C.S.A. § 1574, is an injured passenger vicariously liable to herself for the negligence of the driver of the vehicle and thus per se barred from pursuing a claim against the driver when the injured passenger owned the vehicle and "authorized or permitted" the driver to operate the vehicle knowing that he did not have a valid driver's license?
(4) Should defendant Leibfried's negligence remain an issue for a jury to determine, for the purpose of apportioning liability only, with the jury not being instructed that Leibfried's liability is imputed to ...