Athridge, Thomas v. Rivas, Francisco, et al, No. 01-7185 (D.C. Cir. 2002)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed December 17, 2002

No. 01-7185

& No. 01-7186

Thomas P. Athridge, Jr.,

Appellant

v.

Francisco Rivas, et al.,

Appellees

Appeals from the United States District Court

for the District of Columbia

(No. 89cv01222 & No. 92cv01868)

Erik S. Jaffe was on the brief for appellants. William J.

Rodgers entered an appearance.

David F. Grimaldi was on the brief for appellees.

Before: Ginsburg, Chief Judge, and Edwards and Garland,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.

 Edwards, Circuit Judge: Thomas Athridge, who was struck

by a driver operating a car owned by the appellees, seeks to

impose vicarious liability on the appellees on the theory that

they expressly or impliedly consented to the driver's use of

their car. Under the District of Columbia Motor Vehicle

Safety Responsibility Act ("MVSRA"), D.C. Code

s 50-1301.08, proof of ownership of a car is prima facie

evidence that a driver operated the car with the owner's

permission, and the defendant bears the burden of proving

non-consent. The District Court granted summary judgment

for the appellees, holding that the appellees had overcome the

statutory presumption of consent. We reverse.

The appellees' evidence of non-consent was contradicted by

the appellants' evidence of implied consent. Therefore, be-

cause there is a genuine issue of material fact, the District

Court erred in granting summary judgment. The weighing

of evidence and the drawing of legitimate inferences from

disputed facts are jury functions, not those of a judge. On

the record at hand, it cannot be held that, as a matter of law,

the appellees have presented evidence sufficient to overcome

the statutory presumption. The District Court should have

allowed a jury to weigh the evidence. Accordingly, we re-

verse the judgment of the District Court and remand the case

for further proceedings.

I. Background

In July 1987, Francisco and Hilda Rivas went on an

extended vacation, arranging for Jorge Iglesias, the 17-year-

old son of Mrs. Rivas' first cousin, to mow their lawn while

they were away from home. In the Rivases' absence, Iglesi-

as, who did not have a driver's license, entered their house,

found the keys to their car, and went for a drive. The car

was titled to Churreria Madrid Restaurant, a partnership

then owned by the Rivases. Iglesias accidentally struck and

seriously injured his friend Tommy Athridge.

On May 4, 1989, Athridge and his father filed a suit in the

District Court against Iglesias, Francisco Rivas, and the

restaurant, alleging that Iglesias' negligence caused the inju-

ries. Four months later, GEICO, the Rivases' insurance

carrier, sued Francisco Rivas, the restaurant, and Iglesias in

D.C. Superior Court, seeking a declaratory judgment that

Iglesias' use of the car was without the owners' permission,

and that therefore GEICO was not liable for any judgment

that may be rendered against Rivas, the restaurant, or Iglesi-

as. On March 7, 1990, GEICO, for reasons not contained in

the record, moved to dismiss its own case against Rivas and

the restaurant with prejudice, and the motion was granted.

GEICO continued to pursue its claim against the driver

Iglesias. On June 6, 1990, the D.C. Superior Court granted

summary judgment for GEICO on the issue of non-coverage

of Iglesias. See June 6, 1990 Order, reprinted in Joint

Appendix 75. This judgment did not purport to implicate the

Athridges or the Rivases.

On August 12, 1992, the Athridges filed additional com-

plaints in the District Court against Hilda Rivas, Iglesias'

parents, and Aetna, the insurance carrier of Iglesias' parents.

The District Court consolidated these three new actions with

the original lawsuit. The District Court then dismissed the

claims against all defendants except Iglesias. On November

8, 1996, after a bench trial, the District Court found Iglesias

liable for negligence and awarded the Athridges a $5.5 million

judgment. See Athridge v. Iglesias, 950 F. Supp. 1187, 1190-

94 (D.D.C. 1996).

The Athridges appealed the District Court's grant of sum-

mary judgment for the Rivases, Iglesias' parents, and Aetna.

This court affirmed the grant of summary judgment for

Iglesias' parents and Aetna, reversed the grant of summary

judgment for the Rivases, and remanded the case to the

District Court. See Athridge v. Rivas, 141 F.3d 357, 364

(D.C. Cir. 1998).

On remand, the Athridges moved for partial summary

judgment. They argued that the D.C. Superior Court's dis-

missal with prejudice of GEICO's claim against the Rivases

should be deemed a determination that Iglesias had the

Rivases' permission to drive the car, and that this determina-

tion precluded the Rivases from relitigating the issue of

permission. They also argued that the Rivases were preclud-

ed from contesting damages, which had already been deter-

mined in the Athridges' lawsuit against Iglesias. On Novem-

ber 14, 2000, the District Court denied the Athridges' motion

for summary judgment. It held that the Superior Court's

dismissal with prejudice of GEICO's claim against the Rivas-

es could not be deemed to have determined that the Rivases

gave Iglesias permission to use the car. See Athridge v.

Iglesias, Nos. 89-1222 & 92-1868, 2000 WL 1780273, at 2

(D.D.C. Nov. 14, 2000). Therefore, the District Court held

that the Rivases were not precluded from arguing that Iglesi-

as' use of their car was non-permissive. The District Court

declined to reach the issue of whether the Rivases were

precluded from relitigating the question of damages that had

previously been resolved in the suit against Iglesias, since

there was no reason to reach the issue until the Rivases'

liability was first established. See id. at 5.

The Rivases then filed a motion for summary judgment on

the ground that they were not liable as a matter of law under

the MVSRA. The statute provides that, when a vehicle is

operated by a person other than the owner, "proof of owner-

ship of said motor vehicle shall be prima facie evidence that

such person operated said motor vehicle with the consent of

the owner." D.C. Code s 50-1301.08. The Rivases claimed

that Iglesias' use of the car was non-permissive. The Ath-

ridges opposed the motion and filed a cross-motion for partial

summary judgment. On October 15, 2001, the District Court

granted the Rivases' motion, finding that they had met their

burden of proving that they did not consent to Iglesias' use of

their car, by presenting uncontradicted and conclusive evi-

dence of non-consent, including the testimony of both Iglesias

and the Rivases. See Athridge v. Rivas, 167 F. Supp. 2d 389,

394 (D.D.C. 2001). The District Court rejected the Athridg-

es' arguments that there was consent and rejected their

motion for summary judgment. See id. at 395-98. The

Athridges now appeal the District Court's judgment in favor

of the appellees.

 II. Analysis

This court reviews the District Court's grant of summary

judgment de novo. Ass'n of Flight Attendants, AFL-CIO v.

USAir, Inc., 24 F.3d 1432, 1436 (D.C. Cir. 1994). Summary

judgment may not be granted if the record reveals genuine

issues of material fact. Goldman v. Bequai, 19 F.3d 666, 672

(D.C. Cir. 1994). "Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge ... on a

motion for summary judgment." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

Under the MVSRA, proof of ownership of a car is prima

facie evidence that the driver operated the car with the

owner's permission. This creates a rebuttable presumption

that the owner consented to the use of the car, a powerful

presumption that can only be overcome by "uncontradicted

and conclusive evidence" of non-consent. The defendant has

the heavy burden of establishing non-consent. See Gaither v.

Myers, 404 F.2d 216, 218 (D.C. Cir. 1968) (holding that the

presumption of consent "will support a jury verdict and

judgment for the plaintiff unless the defendant demonstrates

nonconsent by 'uncontradicted' and 'conclusive' evidence")

(citing Hiscox v. Jackson, 127 F.2d 160 (D.C. Cir. 1942);

Rosenberg v. Murray, 116 F.2d 552 (D.C. Cir. 1940)).

Under District of Columbia law, an automobile owner is

entitled to judgment as a matter of law if he or she asserts

without contradiction that the vehicle was taken and used

without consent. " 'If the presumption is overcome by uncon-

tradicted proof - and this may be done by the positive

testimony of the owner - the defendant is entitled to a

directed verdict as a matter of law.' " Love v. Gaskins, 153 A.2d 660, 662 (D.C. Mun. App. 1959) (quoting Stumpner v.

Harrison, 136 A.2d 870, 871 (D.C. Mun. App. 1957)). In

other words, if the owner's testimony of non-consent is uncon-

tradicted and the statutory presumption has been overcome,

then there is no issue to be submitted to a jury and judgment

must be granted in favor of the defendant. See Curry v.

Stevenson, 26 F.2d 534, 536 (D.C. Cir. 1928); Miller v.

Imperial Ins. Inc., 189 A.2d 359, 360 (D.C. App. 1963). But if

the plaintiff proffers facts to discredit the defendant's evi-

dence of non-consent, then the issue must be submitted to a

jury. Alsbrooks v. Washington Deliveries, Inc., 281 A.2d 220,

221 (D.C. 1971) ("Any contradiction or inconsistency found in

the owner's proof prevents a directed verdict....").

In the instant case, the owners and the driver both assert-

ed that no consent was given. However, while this evidence

supports the defendants' claim that Iglesias drove the car

without the owners' consent, it is neither "uncontradicted"

nor "conclusive." The appellants convincingly contend that

the record is inconclusive on the question of consent, because

there is evidence indicating that the Rivases may have given

Iglesias their consent to use the automobile. The appellants

are correct on this point.

The appellants point to several facts that support the

conclusion that Iglesias acted with the owners' consent. The

appellants first argue that an inference can be drawn that

Iglesias drove the owners' car in the past, because of his

facility with a stick-shift vehicle. The appellants contend that

this inference is strengthened by the fact that Iglesias

claimed to have driven the car in the past, and also by the

fact that Iglesias was seen on a different occasion driving

another car belonging to the Rivases' son. Second, the

owners and Iglesias are relatives, which might raise doubts

about their veracity on the matter of consent. Third, the

Rivases did not press charges against Iglesias for unautho-

rized use of the vehicle after the accident, and this failure is

arguably inconsistent with a claim that the car was used

without consent. Fourth, the Rivases allowed Iglesias access

to their house while they were away and left the car keys

available therein. Finally, the appellants suggest that the

non-consent testimony is less than categorical, since Francis-

co Rivas could not read English when he signed an affidavit

asserting that no consent was given.

These facts do not constitute conclusive evidence of express

or implied consent. They do, however, raise a "genuine issue

of material fact" regarding consent. The District Court

found otherwise, reasoning that no reasonable jury could

return a verdict for the plaintiffs: "The implausibility that

[the Rivases], without any reason, would have ever consented

to such a remarkable, extraordinary, and dangerous use of

their car while they were out of the country requires that

plaintiffs' evidence of consent amount to more than dubious

inferences to be 'significantly probative.' " Athridge, 167 F. Supp. 2d at 392-93 (quoting First Nat'l Bank of Ariz. v.

Cities Serv. Co., 391 U.S. 253, 290 (1968)). The District

Court's judgment is based on the erroneous conclusion that

there are no genuine issues of material fact on the question of

consent. As indicated above, the record is inconclusive on the

question of consent, because there is evidence indicating that

the owners may have given Iglesias consent to use their

automobile. This evidence also calls into question the credi-

bility of the driver's and the owners' testimony on non-

consent. Therefore, the defendants have not demonstrated

non-consent by "uncontradicted" and "conclusive" evidence

necessary to support a judgment as a matter of law.

In short, the District Court was obliged to submit the case

to a jury. The factual assertions offered by the appellants

weighed against the consent to which the owners and the

driver had testified, and clearly raised a genuine issue of

material fact. The evidence was insufficient to justify a

judgment as a matter of law for either side. The District

Court therefore should have allowed a jury to weigh the

evidence to determine whether the defendants' evidence of

non-consent is sufficient to overcome the statutory presump-

tion of consent.

In reaching this conclusion, we reject the appellants' con-

tention that they are entitled to judgment as a matter of law

based on the statutory presumption. As noted above, the

defendants' assertions of non-consent are sufficient to send

the case to a jury. In an effort to avoid this result, the

appellants argue that the Rivases should be precluded from

arguing that Iglesias' use of their car was non-permissive,

because the D.C. Superior Court dismissed with prejudice

GEICO's claim against the Rivases. We reject this conten-

tion. In dismissing the claim against the Rivases, the Superi-

or Court never made any findings on the question of consent

in conjunction with that claim. Although a "judgment dis-

missing [a] previous suit with prejudice bars a later suit on

the same cause of action," a judgment "unaccompanied by

findings ... [does] not bind the parties on any issue ...

which might arise in connection with another cause of action."

Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 327 (1955)

(internal quotation marks omitted). Therefore, we hold that

the Superior Court dismissal cannot have preclusive effect on

the issue of consent in the instant case.

Appellants also claim that they are entitled to partial

summary judgment on the issues of Iglesias' negligence and

damages, based on the preclusive effect of the $5.5 million

judgment against Iglesias. The District Court declined to

reach this issue until the Rivases' liability was first estab-

lished. We therefore leave that issue for resolution by the

District Court in the first instance.

III. Conclusion

We reverse the District Court's judgment for the appellees

and remand this case for further proceedings consistent with

this opinion.