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Recently, the First District of the California Court of Appeal (which oversees the trial courts in Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma), upheld a trial court’s refusal to include an additional jury instruction defining “permitted” in light of California’s Civil Jury Instruction (CACI) number 724, relating to a negligent entrustment claim.

Ghezavat v. Harris (2019) 40 Cal.App.5th 555 involved a wrongful death action arising from a two car motor vehicle collision. Defendant, John Harris (John), was driving a 2005 Toyota Tacoma that he had purchased, with his father, David Harris (David), co-signing the loan. David made some of the payments as well as paid for the insurance and registration, although John made most of the payments. The truck was registered in both of their names. Moreover, John had sole possession of the keys and was the only driver.

Although facts of the actual impact were scarce, John was driving his truck when he suffered a seizure and struck a car occupied by Ellie Pirdavari and Mahin Dowlati, who both died as a result of the accident. There is no dispute that David was aware that John suffered from a seizure disorder, including two grand mal seizures that occurred just a few months before the subject accident. However, David testified that he did not know if John continued to drive after the seizures, and made no effort to preclude John from driving including canceling the insurance. David also did not remove himself from the registration.

The decedents’ heirs sued both John and David. As to David, the theory of liability was negligent entrustment of the jointly owned truck. CACI number 724 was given to the jury as follows:

“Plaintiffs ... claim that [Pirdavari] and [Dowlati] were harmed because [David] negligently permitted [John] to use [David]'s vehicle. To establish this claim, plaintiffs must prove all of the following: That [David] was an owner of the vehicle operated by [John]; that [David] knew or should have known, that [John] was incompetent or unfit to drive the vehicle; that [David] permitted [John] to drive the vehicle; and, that [John] was incompetent or unfit to drive was [sic] a substantial factor in causing harm to [Pirdavari] and [Dowlati].”

David sought to clarify CACI number 724 by proposing four supplemental special instructions, including the below:

“In order for you to find that [David] permitted [John] to drive the Toyota Tacoma at the time of the accident, you must find that [David] had power over the use of the Toyota Tacoma by [John] and that [John] drove the Toyota Tacoma at the time of the accident with the express or implied consent of [David.]”

The trial court denied all four supplemental special instructions proposed by David, finding that CACI number 724 needed no clarification. The trial court continued to refuse instructing the jury, even after it began deliberating and requested a definition of “permitted.”

The Court of Appeal agreed with the trial court. Specifically, it found that CACI number 724 “adequately explained to the jury that David was not liable for negligent entrustment if David did not permit John's use.” Accordingly, the Court of Appeal held that no further clarification was required. Moreover, the Court of Appeal found that the trial court properly refused to give the special instruction because “they are argumentative and unduly emphasize his theory of the case.” The Court of Appeal reasoned that David’s counsel had ample opportunity to argue his case and that such an instruction was unnecessary.