                                                  Supreme Court

                                                  No. 2012-198-Appeal.
                                                  (PC 08-4046)


 Maria Marble                  :

        v.                     :

John Faelle et al.             :




 NOTICE: This opinion is subject to formal revision before
 publication in the Rhode Island Reporter. Readers are requested to
 notify the Opinion Analyst, Supreme Court of Rhode Island,
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                                                                   Supreme Court

                                                                   No. 2012-198-Appeal.
                                                                   (PC 08-4046)


                Maria Marble                   :

                       v.                      :

               John Faelle et al.              :


               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


                                          OPINION

         Justice Goldberg, for the Court. The plaintiff, Maria Marble (Marble or plaintiff),

suffered injuries when she was struck by a vehicle operated by the defendant John Faelle

(Faelle), owned by the defendant Hertz Corporation (Hertz), and purportedly rented to the

defendant Anthony Carroccio (Carroccio).1          Hertz filed a motion for summary judgment,

contending that it did not consent to Faelle’s operation of the vehicle and that, alternatively, a

federal statute, 49 U.S.C. § 30106, known as the Graves Amendment, precludes recovery against

Hertz. The Superior Court justice granted Hertz’s motion. We reverse and remand for trial.

                                         Facts and Travel

         On December 28, 2007, Marble exited a Rhode Island Public Transit Authority (RIPTA)

bus, which had been traveling southbound on Reservoir Avenue in Cranston. It was about

7 p.m.; she was dressed in black, and she attempted to cross the street, west to east, without using

a crosswalk. When she reached the northbound lane, Marble was struck by a 2007 Dodge

Charger registered to Hertz and driven by Faelle. According to one witness, the force of the


1
    The Rhode Island Public Transit Authority (RIPTA) is also a named defendant.

                                                -1-
accident caused Marble to go onto the hood of the car and then land hard on the pavement.

Marble was taken to the emergency room, where hospital staff determined that she had non-life-

threatening injuries.

       The plaintiff filed a complaint against Faelle in June 2008. In later amendments to the

complaint, she added Hertz, RIPTA, and Carroccio as defendants. Hertz denied the allegations,

and included lack of consent as an affirmative defense in its answer. In 2009, Hertz brought its

first motion for summary judgment, which was denied without prejudice by a justice of the

Superior Court. Hertz brought a second motion for summary judgment in 2011, which was

decided by a second justice of the Superior Court. In that motion, Hertz contended that it did not

consent to Faelle’s operation of the vehicle and, alternatively, that 49 U.S.C. § 30106, the Graves

Amendment, precludes recovery against it. To support its motion, Hertz attached five exhibits to

its memorandum. Exhibit A was a “rental record” between Hertz and Carroccio. Exhibit B was

the Operator Information Sheet from the Cranston Police Department relating to the accident.

Exhibit C was a “rental agreement,” purporting to contain the terms and conditions of

Carroccio’s rental.     Exhibit D was the affidavit of Stephen P. Camerano (the Camerano

affidavit), which had one exhibit attached to it.2 Exhibit E was Faelle’s statement included in the

accident report.

       The documents most key to this appeal are the rental record and the Camerano affidavit.

The rental record reflects that, on December 18, 2007, Carroccio rented a vehicle from Hertz,

which he was to return on January 1, 2008. The vehicle listed, however, is a 2008 Toyota Prius.

Nonetheless, the Camerano affidavit asserts that “pursuant to the rental record attached hereto

2
  Two things about exhibit D are noteworthy. First, the exhibit attached to the affidavit is the
same document as exhibit A attached to the memorandum (the rental record), minus the first
page. Second, on the second page of Hertz’s supporting memorandum (the pages are
unnumbered), exhibit D is described as “the Affidavit of Juan Samayoa.”
                                               -2-
Anthony Carroccio rented a 2007 Dodge Charger from Hertz * * *.” With respect to the issue of

Hertz’s consent, the four-page rental record states, “No ‘additional authorized operators’ without

our prior written approval.”     Additionally, the section of the rental record delineating the

estimated charges for the rental provided that “fees for any additional authorized operators [are]

not included”; the corresponding line omits a dollar figure, unlike other lines. Finally, the terms

and conditions of the “rental agreement” exhibit contain the following provision:

               “Who May Operate the Car
               Only You and the following persons, with Your permission
               (‘Authorized Operators’), may operate the Car: * * * (c) for rentals
               other than Replacement Rentals, any other person who meets
               Hertz’s qualifications and who signs an Additional Authorized
               Operator form at the time of rental or who is authorized under
               Your Hertz CDP number, if any, shown on the Rental Record.”3

Hertz argued that these documents establish that it did not consent to Faelle’s operation of the

2007 Dodge Charger that struck plaintiff.         Alternatively, Hertz argued that that 49 U.S.C.

§ 30106, the Graves Amendment, preempts G.L. 1956 § 31-34-4; thus, it precludes the vicarious

liability of Hertz as the owner of the vehicle.

       The plaintiff argued that there were genuine issues of material fact regarding Hertz’s

consent, making summary judgment inappropriate.             Specifically, plaintiff pointed to the

inconsistency in the documents that Hertz submitted: the rental record described a Toyota Prius,

while the vehicle involved in the accident was a Dodge Charger. Further, plaintiff relied on

RIPTA’s argument that the Graves Amendment did not preempt § 31-34-4, and also asserted that

there were genuine issues relating to the applicability of the Graves Amendment. After hearing

argument, the Superior Court justice merely stated, “I’m going to grant [Hertz’s] motion.”



3
  The “rental agreement” contains no reference to Carroccio―in fact, “secondary generic” is
handwritten on this stock document—and it was not attached to or referenced by the Camerano
affidavit.
                                                  -3-
                                       Standard of Review

       “[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg,

68 A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-

50 (R.I. 2012)). We examine the case from the same perspective as the trial justice who passed

on the motion for summary judgment, and we “view the evidence in the light most favorable to

the nonmoving party * * *.” Id. at 406-07 (quoting Sacco, 53 A.3d at 150). “Only when a

review of the admissible evidence viewed in the light most favorable to the nonmoving party

reveals no genuine issues of material fact, and the moving party is entitled to judgment as a

matter of law, will this Court uphold the trial justice’s grant of summary judgment.” Sola v.

Leighton, 45 A.3d 502, 506 (R.I. 2012) (quoting National Refrigeration, Inc. v. Standen

Contracting Co., 942 A.2d 968, 971 (R.I. 2008)). Although the nonmoving party must establish

the existence of a disputed issue of material fact, “[s]ummary judgment is an extreme remedy

that should be applied cautiously.” Hill v. National Grid, 11 A.3d 110, 113 (R.I. 2011) (quoting

Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 57

(R.I. 2010)).

                                             Analysis

       Both the plain language of § 31-34-4 and our case law recognize that when the operator

of a rental car causes an accident, the liability of the owner of a rental car—absent some

independent negligence—is predicated upon the operator having the consent of the owner.

Section 31-34-4(a) provides in pertinent part:

                        “Any owner of a for hire motor vehicle or truck who has
                given proof of financial responsibility under this chapter or who in
                violation of this chapter has failed to give proof of financial
                responsibility, shall be jointly and severally liable with any person
                operating the vehicle for any damages caused by the negligence of



                                                 -4-
               any person operating the vehicle by or with the permission of the
               owner.” (Emphasis added.)

“It is well-established that in order for a rental-car company to be vicariously liable for the

negligent operation of its vehicle, § 31-34-4 requires the owner to give permission to the

operator.” LaFratta v. Rhode Island Public Transit Authority, 751 A.2d 1281, 1285 (R.I. 2000).

Nevertheless, G.L. 1956 § 31-33-7 provides:

                      “In all civil proceedings, evidence that at the time of the
               accident or collision the motor vehicle was registered in the name
               of the defendant, shall be prima facie evidence that it was being
               operated with the consent of the defendant, and the absence of
               consent shall be an affirmative defense to be set up in the answer
               and proved by the defendant.”

       This Court’s pronouncements are crystal clear regarding the effect of § 31-33-7 in the

summary judgment context. Pichardo v. Stevens, 55 A.3d 762, 766 (R.I. 2012). “[I]n cases

where § 31-33-7 is in issue, evidence of vehicle registration ‘cannot be treated as a mere

presumption;’ instead, this ‘prima facie evidence remains in the case throughout the trial and is

entitled to be weighed like any other evidence upon the question of fact as to consent.’”

Pichardo, 55 A.3d at 766 (quoting Kent v. Draper Soap Co., 75 R.I. 30, 36-37, 63 A.2d 571, 575

(1949)).   We have held that a defendant-owner’s sworn statements that she did not give

permission to a driver involved in a collision involving her car are “relevant to [the defendant-

owner’s] attempt to establish [an] affirmative defense under § 31-33-7, but they are not sufficient

to prove that defense at the summary judgment stage.” Pichardo, 55 A.3d at 766 (quoting

Andreoni v. Ainsworth, 898 A.2d 1240, 1244 (R.I. 2006)). Only in a “rare and exceptional case”

can a defendant-owner prove the affirmative defense of lack of consent as a matter of law under

§ 31-33-7. Pichardo, 55 A.3d at 766-67 (quoting Hill v. Cabral, 62 R.I. 11, 19, 2 A.2d 482, 485

(1938)).



                                               -5-
       Here, Hertz has failed to show that this is such a “rare and exceptional” case. The

exhibits submitted by Hertz are vague and contradictory, and they do not carry the day.

Although Hertz submitted a rental record showing Carroccio as the only authorized driver of a

vehicle rented from Hertz, that record reflected that Carroccio rented a 2008 Toyota Prius, not

the 2007 Dodge Charger that struck plaintiff. Although the Camerano affidavit states that

Carroccio rented a 2007 Dodge Charger “pursuant to the rental record attached hereto,” the

rental record is inconsistent, describing only the Prius and not the Charger.4 Furthermore, at oral

argument, counsel for Hertz admitted that he drafted the affidavit and that the Hertz employee

who signed it was not the actual person who conducted the transaction, but rather a Hertz

employee who obtained a copy of the rental record from Hertz’s computer system. Additionally,

we note that exhibit C, the rental agreement, which purports to contain the terms and conditions

of Carroccio’s rental, contains no reference to Carroccio, and the Camerano affidavit does not

address it. Therefore, the record does not establish that Faelle was operating the 2007 Dodge

Charger without Hertz’s consent, particularly in light of plaintiff’s statutory prima facie proof

under § 31-33-7. Accordingly, Hertz’s consent remains an issue of material fact.

       Hertz relies heavily upon LaFratta, 751 A.2d at 1283, 1285—a case in which we affirmed

the grant of summary judgment to a rental car company with similar terms to the purported rental

agreement and rental record here. In LaFratta, 751 A.2d at 1284, however, “the rental agreement

provided the requisite proof [of lack of consent].” Such is not the case here; the rental record

submitted by Hertz is insufficient because it does not describe the vehicle involved in the

accident with plaintiff. Hertz also seizes upon a footnote of dictum in Pichardo, 55 A.3d at 767

4
  The Camerano affidavit is inconsistent with the copy of the rental record attached as exhibit A
to Hertz’s memorandum in support of its motion for summary judgment. The copy of the rental
record attached to the Camerano affidavit surreptitiously omitted the first page of the record, i.e.,
the page describing the rented vehicle as a 2008 Toyota Prius.
                                                -6-
n.2, which stated that, when a car rental agency expressly limits who is allowed to drive its

vehicle, “summary judgment in favor of a rental agency-defendant would be appropriate

because, absent some ambiguity or amendment to the original rental agreement, the plain

language of the contract would limit the rental agency’s consent to drivers named in the

agreement.” An ambiguity or amendment to the original rental agreement is precisely what we

have here—while Hertz purports via affidavit that Carroccio rented a Dodge Charger pursuant to

an attached rental record, that rental record reflects only the rental of a Toyota Prius.

Accordingly, summary judgment on the basis of Hertz’s lack of consent is not appropriate in this

case. See § 31-33-7; Pichardo, 55 A.3d at 766-67. The determination of this issue requires

factfinding.

       Hertz also argued that summary judgment was proper because the Graves Amendment

preempts § 31-34-4.     However, the issue of fact discussed above also precludes summary

judgment on the Graves Amendment issue. The Graves Amendment provides:

                       “An owner of a motor vehicle that rents or leases the
               vehicle to a person (or an affiliate of the owner) shall not be liable
               under the law of any State or political subdivision thereof, by
               reason of being the owner of the vehicle (or an affiliate of the
               owner), for harm to persons or property that results or arises out of
               the use, operation, or possession of the vehicle during the period of
               the rental or lease, if--

                       “(1) the owner (or an affiliate of the owner) is engaged in
               the trade or business of renting or leasing motor vehicles; and

                      “(2) there is no negligence or criminal wrongdoing on the
               part of the owner (or an affiliate of the owner).” 49 U.S.C.
               § 30106(a).

Thus, the Graves Amendment applies only when “harm to persons or property * * * results or

arises out of the use, operation, or possession of the vehicle during the period of the rental or

lease” and there is no negligence by the rental car company. Id. The rental record that Hertz


                                               -7-
attached to its motion is for the rental of a Toyota Prius and not a Dodge Charger. Therefore, the

rental record does not establish, for purposes of summary judgment, the period of the rental

because it does not identify the vehicle involved in the accident.        Accordingly, summary

judgment on the basis of the Graves Amendment is not appropriate. See Sola, 45 A.3d at 506.

We decline to address the legal merits of the constitutional preemption question. See In re

Brown, 903 A.2d 147, 151 (R.I. 2006) (“Neither this Court nor the Superior Court should decide

constitutional issues unless it is absolutely necessary to do so.”).

                                               Conclusion

       For the reasons set forth above, we reverse the judgment of the Superior Court. The case

is remanded to the Superior Court for trial.




                                                  -8-
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       Maria Marble v. John Faelle et al.

CASE NO:             No. 2012-198-Appeal.
                     (PC 08-4046)

COURT:               Supreme Court

DATE OPINION FILED: May 9, 2014

JUSTICES:            Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:          Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:    Providence County Superior Court

JUDGE FROM LOWER COURT:

                     Presiding Justice Alice B. Gibney

ATTORNEYS ON APPEAL:

                     For Plaintiff: Ronald J. Resmini, Esq.

                     For Defendant: Ryan C. Hurley, Esq.
