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DOCKET NO. A-4226-07T24226-07T2





Parents of minor JUSTIN RENNY,




Submitted December 17, 2008 - Decided

Before Judges Lihotz and Messano.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-9983-07.

Buckalew, Frizzell & Crevina, LLP, attorneys for appellants (Robert J. Buckalew, on the brief).

Nancy Ventres and Michella Ventres, respondents pro se.


We are requested to review whether parents may be liable for a minor child's negligent operation of a dirt bike, unlawfully driven on a public roadway. Following a bench trial, a Special Civil Part judgment was entered on plaintiff's complaint seeking property damage caused to her Ford Mustang automobile. Plaintiff Nancy Ventres is the mother of plaintiff Michella Ventres, the Mustang's operator at the time of the accident. Defendants Thomas Renny and Denise D'Meo are the owners of a dirt bike operated by their minor son Justin Renny on a public street at 11:30 p.m.. Justin was driving the dirt bike, which had no lights or reflectors, without an operator's license.

Defendants purchased the dirt bike for Justin's use on dirt bike trails. The vehicle was not stored at defendants' home, but rather in the garage of Mike Korn, Justin's friend. Bike trails were located in a wooded area behind Korn's home. On the night of the incident, defendants allowed Justin to spend the night with a different friend. It is not clear whether this friend's home was proximate to the Korn's garage. Justin did not obtain express permission from his parents to operate the dirt bike on the night of the accident. However, Justin knew the bike's location and the access code to the Korn's garage, and apparently the ignition keys were kept with the dirt bike.

While operating the dirt bike on the street, Justin collided with plaintiff's Mustang. Both he and Michella suffered injuries. The police cited Justin for several motor vehicle violations, including careless driving, driving an unlicensed vehicle, and driving an uninsured motor vehicle.

The essence of plaintiff's complaint was defendants' negligence caused her loss. The costs to repair the automobile's damage, including the impound fee, totaled $3,986.83, and Michella's unpaid medical bills were $1,050.50. The trial court concluded defendants were not liable for the medical expenses. However, the judge found Justin's use of the dirt bike was "permissive," and ordered payment of $4,046.83 to compensate plaintiff for her property damage. Defendants appealed. For the reasons expressed in this opinion, we are constrained to remand this matter for further proceedings by the trial judge.

When reviewing judicial factfinding in a nonjury trial, our scope of review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We determine whether the findings made are reasonably supported by adequate, substantial, credible evidence present in the record. Ibid.; Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The trial court's finding that Justin's operation of the dirt bike was a "permissive" use, resulting in defendants' liability, was based on the parties' past practices of granting Justin "permission to use [the] motor vehicle [such that] any subsequent use, short of theft or the like while it [wa]s in the possession of the user though not within the contemplation of the parties, [wa]s a permissive use." This is an incorrect statement of the law as applicable to this matter.

The court applied what is known as the "initial-permission" rule articulated in Matits v. Nationwide Mutual Ins. Co., 33 N.J. 488, 496-97 (1960). In Matits, supra, the Court was asked to examine the scope of coverage available under an automotive liability policy issued by the defendant. Id. at 490. Specifically, the issue was whether the tortfeasor was operating the owner-insured's vehicle with permission. Id. at 490. The owner-insured's husband allowed a neighbor to borrow his wife's car to visit her mother. Id. at 491-92. A dispute arose as to whether a time limit was imposed on the permitted use. Ibid. Nevertheless, following the visit, the neighbor stopped to have a drink and caused an automobile collision as she was returning home. Id. at 492.

The trial court concluded the neighbor's use of the vehicle was covered by the liability policy because she was an additional insured under the standard omnibus clause extending insurance coverage to "any person or organization legally responsible for the use of the described automobile[,] provided the actual use was with the permission of the policyholder or such spouse." Id. at 490. The coverage clause of the policy complies with the requisites of New Jersey's insurance statute, which imposes an obligation on all owners of motor vehicles to maintain specified minimum motor vehicle liability insurance coverage. N.J.S.A. 39:6B-1(a).

This court affirmed and the Supreme Court held:

if a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy.

[Id. at 496-97.]

Thus, "once an owner gives his vehicle's keys to another person for a drive, the courts ordinarily will find coverage, even if the driver deviates from the expected scope of the vehicle's use, unless the driver's later conduct amounts to a theft or the like of the vehicle." French v. Hernandez, 184 N.J. 144, 152 (2005).

Not only is the "initial-permission" rule inapplicable to these facts because there was no proof of Justin's "'continuous possession of the vehicle'" following the grant of permission, id. at 153 (quoting French v. Hernandez, 370 N.J. Super. 104, 112 (App. Div. 2004)), but also because this matter does not pose an insurance coverage question. What we must determine is whether defendants, as the vehicle owners, are vicariously liable for plaintiff's damages, caused by the their son's use of the vehicle. Tischler v. Steinholtz, 99 N.J.L. 149, 152 (E. & A. 1923); Mahan v. Walker, 97 N.J.L. 304, 307 (E. & A. 1922).

First, we note defendants' status as the vehicle's owners alone does not trigger liability. Generally, New Jersey common law imposing vicarious liability provides, "the owner of a motor vehicle is not liable for the negligence of the operator of the vehicle, unless the operator is acting as the owner's agent or employee." Haggerty v. Cedeno, 279 N.J. Super. 607, 609 (App. Div. 1995), certif. denied, 141 N.J. 98, (1995); Marriner v. Somay, 114 N.J.L. 164, 166 (Sup. Ct. 1935), aff'd, 116 N.J.L. 411 (E & A 1936). The rule is "designed to shield an owner from liability in cases in which the owner has not been negligent and in which the culpable driver is not related to the owner in a way that will justify the imposition of vicarious liability under traditional principles of the law of agency or master servant." Haggerty, supra, 279 N.J. Super. at 611-612; Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 323 (App. Div.), certif. denied, 195 N.J. 520 (2008). If one uses the vehicle of another, a rebuttable presumption of agency is raised. Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div.), certif. denied, 56 N.J. 479 (1970); Tischler, supra, 99 N.J.L. at 152; Mahan, supra, 97 N.J.L. at 307; Hernandez v. Velez, 267 N.J. Super. 353, 356 (Law Div. 1993). So too, a familial relationship may suggest agency. Harvey, supra, 110 N.J. Super. at 74. However, standing alone, "[t]he mere existence of the relationship of parent and child does not render a parent liable for his child's torts." Guzy v. Gandel, 95 N.J. Super. 34, 36 (App. Div. 1967); (citing Doran v. Thomsen, 76 N.J.L 754, 760 (E & A 1908). As explained in the reported decisions on this issue, the facts surrounding the relationship must be carefully examined.

In Doran, supra, the father's adult daughter had general permission to use the family car. 76 N.J.L. at 756. On the day of the accident, the daughter took the vehicle to go riding with friends without her father's express permission, as he was out of town. Ibid. The court concluded the daughter's action of using the vehicle for pleasure was not done on behalf of her father. Ibid.

In Missell v. Hayes, 86 N.J.L. 348 (E. & A. 1914), the son drove his mother, sister and friends in his father's automobile. Id. at 349. The fact the father's immediate family and guests occupied the vehicle evinced "that the automobile was being used in the father's affairs or business." Id. at 349. Other testimony suggesting family members participated in the jaunt at the son's separate invitation presented a factual dispute for the jury's deliberation. Id. at 350.

In Ceslak v. Krause, 108 N.J.L. 350 (E. & A. 1931), the plaintiff appealed the directed verdict in favor of the father vehicle-owner because there were no facts to support his responsibility for the accident caused by his son, the vehicle's operator. Id. at 351. The son was using the vehicle for his own pleasure. Id. at 354. He had a set of keys and permission to use it anytime. Id. at 355. Thus, the son was not acting as the father's agent. Ibid.

In Marriner, supra, the automobile owner-parents were not liable for injuries to a third-party when their son took the vehicle to push a friend's disabled vehicle during a storm after he was expressly told not to do so. 114 N.J.L. at 166. The Court concluded no agency relationship existed, as the son defied the express direction of his mother. Ibid.

More recently, the issue was presented in Willett v. Ifrah, 298 N.J. Super. 218 (App. Div. 1997), where a father purchased an automobile for his son to drive to and from school. Id. at 219. The plaintiff sought to impose liability on the father as the vehicle's owner, suggesting the son was acting as the father's agent when the accident occurred. Ibid. This court concluded no agency relationship existed at the time of the accident because the son had total control of the car and was not using it for any "family purpose." Id. at 220.

We provide this survey of relevant case law to emphasize the application of the principle of vicarious liability must be grounded on specific factual findings and depends on the totality of the circumstances. The minimal facts presented in this record show defendants acknowledged Justin operated the dirt bike on dirt trails with defendants' permission; the bike was kept in a locked garage, not necessarily to separate it from Justin, but to allow its accessibility to the dirt trails; Justin knew the location of the bike and obtained access to the garage; and the keys were kept with the bike. The question of whether the bike was used on roadways in the past was not explored. Nevertheless, on the night of the accident, Justin used the vehicle on a public roadway without informing his parents. Other than the presumption of agency due to a familial relationship, these facts cannot support a finding of vicarious liability on behalf of defendants. No evidence supports Justin used the dirt bike on the night of the accident as an agent of his parents. Willett, supra, 298 N.J. Super. at 220.

Defendants may still be liable if they themselves engaged in negligent acts. In Doran, supra, the Court of Errors and Appeals distinguished a parent's vicarious liability for a child's negligence while acting on behalf of a parent, and a parent's liability resulting from his or her negligence in entrusting a minor child with possession of a "dangerous machine," for example an automobile. The Court stated:

If the machine had been bought for his children's use, and it was in its nature or use a menace to the safety of others, then, . . . it might well be that liability would arise by reason of the father's entrusting a dangerous machine or agency to the hands of an inexperienced or incompetent person. Such a liability does not rest upon the negligence of the servant, but upon the father's negligence in permitting his child to use a dangerous machine. In the one the gist of the action is the negligence of the servant imputed to the master; in the other, the negligence of the father. . . . [T]he parent may be liable for an injury which may be caused directly by the child, where by his negligence he made it possible for the child to cause the injury complained of, and probable that the child would do so, this liability is based upon the rules of negligence rather than the relation of parent and child.

[76 N.J.L. at 760 (quotations and citations omitted.]

Thus, a parent retains an obligation to exercise reasonable care to control a minor child to avoid the creation of an unreasonable risk of bodily harm to others, "if the parent (1) knows or has reason to know that he has the ability to control his child, and (2) knows or should know of the necessity and opportunity for exercising such control" when dealing with a dangerous instrumentality. Mazzilli v. Selger, 13 N.J. 296, 302 (1953) (citing Restatement, Torts 2d, 316 (1965)).

The scope of a parent's obligation to control a minor child when faced with third-party claims is limited by the doctrine of parental immunity. The doctrine excludes liability only in circumstances implicating "customary child-care issues or a legitimate exercise of parental authority or supervision." Buono v. Scalia, 179 N.J. 131, 138 (2004).

While parents should be able to raise their children autonomously and free from scrutiny by the courts, id. at 144, the parental immunity doctrine does not apply in circumstances where the actions of a parent are willful or wanton as determined by the totality of the circumstances. Id. at 138. Such conduct is not exempt from the blanket of immunity. For behavior to fall within the definition of willful and wanton, which has been "defined as an intermediary position between simple negligence and the intentional infliction of harm," Foldi v. Jeffries, 93 N.J. 533, 549 (1983), "a parent must be conscious . . . that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, [the parent] consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result." Buono, supra, 179 N.J. 137-38 (internal quotation marks and citation omitted).

Additionally, conduct other than parental decision-making falls beyond the veil of immunity. Thus, the acts of a parent claiming immunity should "'fall[] within the realm of activities which partake of the everyday exigencies of regular household existence[.]'" 179 N.J. at 144 (quoting Foldi, supra, 93 N.J. at 550) (internal quotation marks and citation omitted). "[I]f a parent's conduct does not implicate legitimate child-rearing issues, but simply places a third-party negligently at risk, then there would be no immunity. Id. at 143 (referencing Mancinelli v. Crosby, 247 N.J. Super. 456 (App. Div. 1991)).

Here, we conclude defendants are not shielded by parental immunity based on the conduct at issue. Unlike the injuries in Foldi, resulting from interaction with a family dog, or those in Buono, involving bike riding, plaintiff's injuries resulted from the defendants' son's operation of a small motorcycle. Use of a motor vehicle implicates state regulation for operation. Thus, it is not an area confined to the bailiwick of the free exercise of parental "discipline, care and control." Foldi, supra, 93 N.J. at 545.

A motor vehicle should not pose a danger to others, unless it is handled by an incompetent person in which case it may become highly dangerous and a public menace. Sheridan v. Arrow Sanitary Laundry Co., 105 N.J.L. 608, 610 (E. & A. 1929). Defendants purchased the dirt bike for and provided access to Justin, knowing he was not old enough to obtain even a provisional operator's license. See N.J.S.A. 39:3-10. State licensure laws mandate motor vehicle operators obtain behind-the-wheel instruction, and satisfactorily pass a written examination, as well as a road test and procure a vision test, to ensure the safe operation of the motor vehicle. Further, defendants failed to separately secure the keys to limit Justin's access to the dirt bike. Justin's age reflects his limited maturity requiring supervised access to the dirt bike be secured.

Viewing the totality of the circumstances, we conclude defendants' actions and omissions extend beyond the "special situations that involve the exercise of parental authority and customary child care," Foldi, supra, 93 N.J. at 551, making parental immunity inapplicable. Thus, defendants' conduct may provide a basis for liability. Plaintiff must show defendants were negligent, proving the elements of duty, breach, foreseeability, and causation. People Express Airlines v. Consol. Rail Corp., 100 N.J. 246, 263-67 (1985). The record presented is inadequate to allow this court to examine those proofs.

In the Special Civil Part trial, both parties were self-represented. Not surprisingly, the trial judge conducted the examination. The parties made assertions in argument but were not afforded cross-examination. Thus, the scope of examination was quite limited, and we may not extrapolate from the limited facts presented whether plaintiff satisfied her burden to prove the elements of negligence. Also, neither Justin nor Michella were available on the trial date, although the respective parents requested an adjournment to provide their testimony. The court stated this was not necessary. Parties should be permitted to determine which witnesses to present.

The facts presented also implicate possible strict liability pursuant to N.J.S.A. 2A:53A-15, which provides:

A parent, guardian or other person having legal custody of an infant under 18 years of age who fails or neglects to exercise reasonable supervision and control of the conduct of such infant, shall be liable in a civil action for any willful, malicious or unlawful injury or destruction by such infant of the real or personal property of another.

The court must review the circumstances of the accident to discern whether Justin's actions of operating an unregistered motor vehicle on a public thoroughfare at 11:30 p.m. without the benefit of lights or an operator's license violated the statute. If the court makes that finding, it must also examine whether defendants failed to exercise reasonable supervision and control of their son's conduct to discern whether statutory liability results.

We reverse the order entered on November 18, 2008 and remand this matter for a new trial consistent with this opinion.


N.J.S.A. 39:6B-1 states in pertinent part:

a. Every owner . . . of a motor vehicle . . . principally garaged in this State shall maintain motor vehicle liability insurance coverage, . . . insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle . . . .

Without question a dirt bike is a "motor vehicle" as it falls within the definition of a "motorcycle," N.J.S.A. 39:1-1. Defendants, as the owners of the dirt bike, have a statutory obligation to maintain liability insurance to assure financial obligations to victims caused by the bike's negligent use on public streets. N.J.S.A. 39:6B-1; Matits, supra, 33 N.J. at 496.

Here, the dirt bike was not insured. However, defendants' failure to insure the motor vehicle does not result in liability for plaintiff's damages.






January 26, 2009

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