In a previous article in Legal News (Jan. 2014) I reviewed the law of negligent entrustment of a vehicle in Massachusetts in which a vehicle owner can be held liable for damages caused by an operator to whom the owner had given permission to drive the vehicle and where the owner had knowledge of the operator’s incompetence or unfitness to drive. Even though denying permission to use a vehicle to anyone who an owner has reason to know is unfit to drive may seem to insulate an owner from liability for damages caused by accidents from such unauthorized drivers, that is not always the case because Massachusetts also recognizes claims for the negligent failure to secure a motor vehicle. In such cases, the injured claimant must establish that although the vehicle was used without permission, the owner knew that the incompetent driver had a propensity to use the vehicle without such permission and failed to take reasonable measures to prevent him or her from doing so.

In one recent case, the jury awarded $12 million to two plaintiffs who sustained catastrophic injuries in a head-on collision with the negligent operator of a vehicle owned by his grandparents. The jury found the grandparents liable under the theory of the negligent failure to secure the motor vehicle. In that case, after their grandson was involved in two prior motor vehicle accidents, one resulting in a fatality, the grandparents denied their grandson permission to use their motor vehicles and had the grandson excluded from their motor vehicle insurance policy. The grandson acknowledged his exclusion and agreement not to operate his grandparents’ vehicles in a signed statement. Nevertheless, the grandson continued on occasion to use one of his grandparents’ vehicles to drive his former wife, who was having a difficult pregnancy, to doctors’ appointments, although at the time of the accident she was not with him.

In affirming the verdict and jury award against the grandparents based on the claim of negligent failure to secure the motor vehicle, the Appeals Court found that although they had denied him permission to drive their vehicles, the grandparents knew that the grandson had access to their car keys and frequently visited their home, sometimes when they were not there, and further that they knew he was going through a difficult period and wanted to use their vehicles to drive his wife to appointments. The court concluded that the evidence provided a sufficient basis from which a jury could find that the grandparents knew the grandson had a propensity to use their vehicle without their permission and failed to take reasonable action to secure the vehicle. Other cases suggest that reasonable preventative action could include keeping access to the vehicle and/or keys away from the incompetent driver. Under Massachusetts joint and several liability, the grandparents were responsible for the full amount of the $12 million judgment.