[Cite as Burris v. Zurich, 2019-Ohio-5255.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY


PATRICIA BURRIS, ET AL.,                           :

        Plaintiffs-Appellants,                     :   Case No. 19CA3676

        vs.                                        :

ZURICH, ET AL.,                                    :   DECISION & JUDGMENT ENTRY

        Defendants-Appellees.                      :




                                              APPEARANCES:

Peter D. Traska, Cleveland, Ohio, for appellant.

Jonathan W. Philipp, Schaumburg, Illinois, for appellees.


CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-11-19
ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court summary judgment in

favor of Herrnstein Chrysler, Inc. and John Brant, III, defendants below and appellees herein.

Patricia Burris, plaintiff below and appellant herein, assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT SHOULD HAVE FOUND THAT THERE
                 IS AN ISSUE OF FACT AS TO APPELLEE HERRNSTEIN
                 CHRYSLER, INC.’S DIRECT NEGLIGENCE IN THEIR
                 VEHICLE TEST DRIVE PROCEDURES.”
ROSS, 19CA3676                                                                                   2




                 SECOND ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT SHOULD HAVE FOUND THAT, AS A
                 MATTER OF OHIO LAW, WHEN A CORPORATE AUTO
                 DEALER’S SALESPERSON IS PRESENT DURING A TEST
                 DRIVE, THE CORPORATE DEALER IS A DIRECT
                 PARTICIPANT OR CO-VENTURER IN THE TEST DRIVE,
                 AND IS THEREFORE LIABLE FOR THE DRIVER’S
                 NEGLIGENCE.”

        {¶ 2} In November 2015, Hidy Richards and her friend, Tijuana Zerrei, visited the

Herrnstein dealership. Zerrei had been interested in purchasing a vehicle. Because Zerrei

apparently forgot her driver’s license and could not test drive a vehicle, Richards offered to test

drive the vehicle for Zerrei. The salesperson, Brant, accompanied Richards and Zerrei on the

test drive. During the course of the test drive, Richards collided with the car that appellant and

her companion, Jimmy Riddle, had occupied.

        {¶ 3} Appellant and Riddle filed a complaint against multiple parties, including

Richards, Herrnstein, Brant, and various insurance companies. The parties eventually settled or

dismissed all of the claims except the claims appellant filed against appellees. Appellant sought

to hold appellees liable for (1) Richards’ alleged negligent operation of the vehicle, and (2)

Herrnstein’s failure to have a test drive policy in place that may have revealed that Richards had

worked a graveyard shift the day of the test drive.

        {¶ 4} Subsequently, appellees requested summary judgment and argued that they cannot

be held vicariously liable for Richards’ alleged negligence. They further disputed appellant’s

claim that the court could impute negligence under a joint enterprise theory of liability.
ROSS, 19CA3676                                                                                   3

        {¶ 5} To support their respective positions, the parties referred the trial court to the

depositions. Richards stated that she worked the night before the accident and finished work at

6:30 a.m. Richards explained that after work, she went home to sleep. Later, she accompanied

Zerrei to the dealership and, because Zerrei forgot to bring her driver’s license, Richards agreed

to test drive the car.

        {¶ 6} Brant testified that he had been unaware that Richards worked until 6:30 a.m. the

day of the accident. When plaintiffs’ counsel asked Brant whether he would have allowed

Richards to test drive the vehicle if he had known that she had worked all night, Brant responded:

                The way you’ve asked that question, it would be subjective. If there was
        any reason for her–I mean, if she wasn’t seemingly able to drive it, then no, I
        would say something to upper management that there was a problem. If she
        didn’t have any indication that there was any issue and she had a valid driver’s
        license and a seemingly valid insurance card and signed the test drive agreement,
        then I would have let her drive.

Brant stated that he did not notice anything to lead him to believe that Richards would have a

problem driving the car.

        {¶ 7} Herrnstein’s director of sales operations stated that the dealership’s test drive

policy is to ask for a driver’s license and to obtain a copy of the insurance card, or to otherwise

obtain the insurance information by asking the prospective purchaser for the insurance

information.

        {¶ 8} The trial court subsequently granted appellees’ request for summary judgment.

This appeal followed. In her two assignments of error, appellant argues that the trial court

incorrectly entered summary judgment in appellees’ favor. Because the same standard of review

applies to both assignments of error, for ease of discussion we consider them together.
ROSS, 19CA3676                                                                                 4

                                                 A

        {¶ 9} Initially, we observe that appellate courts must conduct a de novo review of trial

court summary judgment decisions. E.g., State ex rel. Novak, L.L.P. v. Ambrose, 156 Ohio St.3d

425, 2019-Ohio-1329, 128 N.E.3d 1329, ¶ 8; Pelletier v. Campbell, 153 Ohio St.3d 611,

2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to

determine if summary judgment is appropriate and need not defer to the trial court’s decision.

Grafton, 77 Ohio St.3d at 105.

        {¶ 10} Civ.R. 56(C) provides, in relevant part, as follows:

        * * * * Summary judgment shall be rendered forthwith if the pleadings,
        depositions, answers to interrogatories, written admissions, affidavits, transcripts
        of evidence, and written stipulations of fact, if any, timely filed in the action,
        show that there is no genuine issue as to any material fact and that the moving
        party is entitled to judgment as a matter of law. No evidence or stipulation may
        be considered except as stated in this rule. A summary judgment shall not be
        rendered unless it appears from the evidence or stipulation, and only from the
        evidence or stipulation, that reasonable minds can come to but one conclusion and
        that conclusion is adverse to the party against whom the motion for summary
        judgment is made, that party being entitled to have the evidence or stipulation
        construed most strongly in the party's favor.

        {¶ 11} Accordingly, pursuant to Civ.R. 56, a trial court may not award summary

judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact

remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3)

after viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can

come to but one conclusion, and that conclusion is adverse to the nonmoving party. Pelletier at

¶ 13; M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12;

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
ROSS, 19CA3676   5
ROSS, 19CA3676                                                                                     6

                                                 B

        {¶ 12} In her first assignment of error, appellant asserts that genuine issues of fact remain

as to whether Herrnstein acted negligently by (1) failing to inquire into Richards’ competency to

operate a vehicle, and (2) failing to have a policy that may have revealed that Richards had

worked until 6:30 a.m. the day of the test drive. Appellant argues that Ohio case law does not

exist regarding “a car dealer’s direct liability for an accident caused by a driver who was not up

to operating a vehicle during the test drive.” Appellant thus requests that this court to consider a

case from Louisiana, Barnett v. Globe Indemn. Co., 557 So.2d 300,301 (La.App.1990).

        {¶ 13} Appellees respond that appellant’s negligence claim against appellees is one for

negligent entrustment. Appellees contends that appellant cannot establish any genuine issues of

material fact to show that Herrnstein negligently entrusted the vehicle to Richards.

        {¶ 14} In reply, appellant appears to suggest that because no Ohio case has ever applied a

negligent entrustment theory against a car dealership, then this court should follow Barnett.

Appellant asserts that car dealers have heightened duties when allowing prospective purchasers

to test drive vehicles and that car dealers act negligently when they fail to inquire into an

individual’s competency to drive.

        {¶ 15} Despite appellant’s attempt to recast her negligence claim as something other than

negligent entrustment, we point out that courts across the country have uniformly applied the

negligent entrustment theory of liability in actions against car dealerships. In fact, the case that

appellant asks us to follow, Barnett, considered the car dealership’s liability under a negligent

entrustment theory and not under some heightened negligence standard applicable to car

dealerships only. In Barnett, the car dealership permitted an individual to test drive one of its
ROSS, 19CA3676                                                                                   7

vehicles. During the test drive, the vehicle struck the plaintiffs’ vehicle. The plaintiffs filed a

complaint against the car dealership and alleged that the salesperson and car dealership acted

negligently by entrusting the vehicle to the individual who test drove the car. The plaintiffs

sought to hold the car dealership liable under theories of imputed negligence and negligent

entrustment. The trial court later entered summary judgment in the car dealership’s favor, and

the plaintiffs appealed.

        {¶ 16} On appeal, the plaintiffs argued that factual disputes remained regarding its two

theories of liability. The plaintiffs claimed that the car dealership and the prospective purchaser

were engaged in a joint venture at the time of the accident and that the car dealership thus may be

liable for the prospective purchaser’s alleged negligence. The plaintiffs further asserted that the

car dealership acted negligently by entrusting the vehicle to an alleged incompetent driver.

        {¶ 17} The Louisiana court rejected both arguments.          The court noted that under

Louisiana law, a joint venture exists between “‘occupants of a conveyance’” when the occupants

share a “‘joint interest in the objects and purposes of the enterprise’” and “‘an equal right,

express or implied, to direct and control the conduct of each other in the operation of the

conveyance.’” Id., quoting Ault & Wiborg Co. Of Canada v. Carson Carbon Co., 160 So. 298

(1935). The appellate court determined that the plaintiffs failed to present any evidence to

support their theory of liability under a joint venture theory. The court explained:

               The mere fact of [the individual]’s test drive as a prospective purchaser
        and [the salesperson]’s allowing the test drive in hopes of selling the car do not
        suggest a mutual intent to combine their property, labor or skill in the conduct of a
        venture analogous to a partnership.

Id. at 301.
ROSS, 19CA3676                                                                                    8

         {¶ 18} The court also rejected the plaintiffs’ negligent entrustment theory of liability.

The court first indicated that “the lender of a vehicle is not responsible for the negligence of the

borrower, unless he had or should have had knowledge the borrower was physically or mentally

incompetent to drive.” Id. at 301. The court did not, however, state whether the car dealer

knew or should have known of the prospective purchaser’s alleged incompetence. Instead, the

court recognized that the plaintiffs cited “some cases in which the negligence of the driver of an

automobile was imputed to the owner/passenger based on an agency theory or on the owner’s

theoretical right to control the operation of the vehicle.” The court pointed out, however, that

the Louisiana Supreme Court rejected the rule that the plaintiffs had proposed: to hold car

dealership liable under an imputed negligence theory or under an agency theory. Id. at 302.

The court also recited the Louisiana Supreme Court’s holding in Gaspard v. LeMaire, 158 So.2d

149, 154 (La.1963): “‘It is unrealistic to hold in the present day uses of motor vehicles that the

occupant of a motor vehicle has factually any control or right of control over the operator.’”

Barnett at 302.

         {¶ 19} Thus, the court determined that the plaintiffs had failed to present a genuine issue

of material fact and that the trial court properly entered summary judgment in the car dealer’s

favor.   Barnett thus did not hold, as appellant seems to suggest, that car dealerships face

heightened duties when they permit prospective purchasers to test drive vehicles.           Instead,

Barnett applied the traditional theory of negligent entrustment and the theory that seeks to hold a

car dealership liable under a joint venture theory. The court declined to hold car dealerships

liable under either theory based upon the mere fact of a prospective purchaser’s test drive while a

salesperson is also an occupant.
ROSS, 19CA3676                                                                                     9

        {¶ 20} Cases within and outside Ohio appear to align with Barnett. In Shea v. Brown,

153 A.2d 419 (1959), the Connecticut Supreme Court determined that a car dealership did not

negligently entrust a motor vehicle by allowing an eighteen-year-old prospective purchaser with a

suspended license to test drive a vehicle. The court refused to hold the car dealership liable

based on the plaintiff’s allegation that the car dealership possessed a duty to inquire into the

status of the prospective purchaser’s driver’s license. Id. at 420.

        {¶ 21} A Nebraska Court of Appeals likewise declined to hold car dealerships liable

based on a failure to inquire into the status of a prospective purchaser’s driver’s license. Suiter

v. Epperson, 571 N.W.2d 92, 104 (Neb.App.1997).             The Suiter court recognized that car

dealerships could be liable under a negligent entrustment theory if the plaintiff established both

of the following: (1) that “the dealer [knew], or in the exercise of reasonable care should [have

known], the driver to be incompetent” and (2) “the injuries complained of must be a result of

such incompetence.” Id. The court further noted, however, that “[c]ourts in other states have

limited a dealer’s liability for negligent entrustment to circumstances where the driver was

intoxicated, lacked driving experience, or was unfamiliar with a particular type of car.” Id.,

citing Annotation, Dealer’s Liability for Negligent Operation of Car by Prospective Purchaser

or One Acting for Him, 31 A.L.R.2d 1441 (1953). The Suiter court found that the plaintiff

failed to present any evidence to show that the car dealership knew, or should have known, that

the prospective purchaser was incompetent to drive. In doing so, the court rejected the argument

that car dealerships possess a duty to ask for a license. The court agreed that requiring car

dealerships to “ensure that they are entrusting a vehicle to a licensed driver for a test drive seems

a rather elementary statement of desirable public policy.”            Id. at 105.   The court aptly
ROSS, 19CA3676                                                                                  10

recognized, however, that it does “not make public policy.” Id.

        {¶ 22} Similarly, a New Mexico court of appeals determined that a car dealership did not

negligently entrust a motor vehicle to an unlicensed prospective purchaser. Spencer v. Gamboa,

699 P.2d 623 (Ct. App. 1985).        In Spencer, the plaintiff’s husband was killed when the

prospective purchaser ran a red light and struck the plaintiff’s husband’s vehicle. The plaintiff

asserted that the car dealership knew, or should have known, that the prospective purchaser

lacked a valid driver’s license and was an incompetent driver. The appellate court affirmed the

summary judgment and concluded that, even though the car dealership’s entrustment of the

vehicle violated state law, the plaintiff failed to present evidence to show that the car dealership

knew, or should have known, that the prospective purchaser was an incompetent driver. Id. at

625.

        {¶ 23} In Boutilier v. Chrysler Ins. Co., 14 Fla. L. Weekly Fed. D 231, 2001 WL 220159

(M.D.Fla.Jan. 31, 2001), the court rejected the precise argument appellant makes: that a car

dealership “is held to a higher standard of care due to the relationship between a dealership and

prospective buyer.” Id. at *4. In reaching its decision, the court observed:

                Courts across the country have established that “at common law, a dealer
        who holds a motor vehicle for purposes of sale is not liable for injuries or
        damages from negligence in the operation of the dealer’s vehicle by a prospective
        purchaser, or one acting for a prospective purchaser, who is seeking to determine
        whether to purchase such vehicle.” 8 Am.Jur.2d § 708 (citing West v. Wall, 191
        Ark. 856, 88 S.W.2d 63 (1935); Sproll v. Burkett Motor Co., 223 Iowa 902, 274
        N.W. 63 (1937); Foley v. John H. Bates, Inc., 295 Mass. 557, 4 N.E.2d 349
        (1936); Saums v. Parfet, 270 Mich. 165, 258 N.W. 235 (1935); Hill v. Harrill,
        203 Tenn.123, 310 S.W.2d 169 (1957); Flaherty v. Helfont, 123 Me. 134, 122 A.
        180 (1923); Roy v. Hammett Motors, 187 Miss. 362, 192 So. 570 (1940). In
        Mathews v. Federated Serv. Ins. Co., 857 P.2d 852 (Or.App.1993), the court held
        that an individual or entity is not negligent in entrusting a vehicle to a licensed
        driver simply because the driver was young or inexperienced. In Grimmett v.
ROSS, 19CA3676                                                                                  11

        Burke, 906 P.2d 156, 165 (Kan.Ct.App.1996), the court held that entrusting a
        vehicle to an individual with a suspended driver's license is not negligence, absent
        actual or imputed knowledge that the driver was incompetent or dangerous.

Id. at *3.

        {¶ 24} Based upon the foregoing, the court held that the car dealership had “no duty to

investigate or determine [the prospective purchaser]’s competency to operate the automobile.”

Id. at *4.

        {¶ 25} Little Ohio case law directly addresses a car dealership’s liability to a third party

injured during the course of a prospective purchaser’s test drive. The Ninth District held that a

vehicle lessor and its agent could not be held liable under a negligent entrustment theory when

the lessee’s operation of the leased vehicle caused injury to a third party. In Bell, the plaintiff

sought redress for injuries that resulted when the lessee crashed the vehicle. The plaintiff

asserted that the lessor and the agent knew that the lessee had difficulty obtaining insurance and

that they thus had “a duty to check his driving record.” Id. at *2.

        {¶ 26} The court noted that the lessor “may be held liable in negligence for an injury

received by a third person * * * if it knowingly leases a motor vehicle to an inexperienced or

incompetent driver whose negligent operation results in the injury.” Id. at *1. The court

explained that to hold the lessor liable under a negligent entrustment theory, the injured party

must show that the lessor “was negligent because it knew or should have known at the time of

the lease either that [the operator] had no driver’s license, or that he was incompetent or

unqualified to operate a motor vehicle.” Id. at *2. The court concluded that the lessor had no

duty to inquire into the lessee’s driving record and the lessor and the agent were entitled to

judgment as a matter of law regarding the plaintiff’s negligent entrustment claim.
ROSS, 19CA3676                                                                                 12

        {¶ 27} In Williamson v. Eclipse Motor Lines, the Ohio Supreme Court held that motor

vehicle owners ordinarily are not liable for an entrustee’s negligent operation of a motor vehicle.

145 Ohio St. 467, 62 N.E.2d 339 (1945), paragraph one of the syllabus. “Liability may arise,

however, where an owner permits the operation of his motor vehicle by one who is so lacking in

competency and skill as to convert it into a dangerous instrumentality.” Id. The court stated

that to hold a motor vehicle owner liable for negligently entrusting a vehicle, the injured person

must establish “by competent evidence that the owner had knowledge of the driver’s

incompetence, inexperience or reckless tendency as an operator, or that the owner, in the exercise

of ordinary care, should have known thereof from facts and circumstances with which he was

acquainted.” Id. at paragraph three of the syllabus.

        {¶ 28} Based upon all of the foregoing, we do not agree with appellant that car

dealerships possess some heightened duty when allowing prospective purchasers to test drive

vehicles. Instead, the general rules regarding negligent entrustment apply.

        {¶ 29} In the case sub judice, appellant has not produced any evidence to suggest

appellees knew, or should have known, that Richards was allegedly incompetent to test drive a

vehicle. Even if Richards had worked a graveyard shift shortly before the test drive, nothing in

the record establishes that Richards appears to be so sleep-deprived that appellees knew, or

should have known, that she was incompetent to operate a motor vehicle. Furthermore, the

cases referenced above indicate that car dealerships do not have a duty to inquire into a potential

purchaser’s competency to operate a vehicle during a test drive.    Accordingly, based upon the

foregoing reasons, we overrule appellant’s first assignment of error.
ROSS, 19CA3676                                                                                 13

                                                C

        {¶ 30} In her second assignment of error, appellant asserts that genuine issues of material

fact remain as to whether Richards’ negligence may be imputed to appellees.              Appellant

contends that negligence may be imputed to appellees if they were engaged in a joint venture

with Richards, the individual who test drove the vehicle.

        {¶ 31} “The doctrine of imputed negligence does not ordinarily apply in Ohio, an

exception being when parties are engaged in a joint enterprise.”    Bloom v. Leech, 120 Ohio St.

239, 166 N.E. 137 (1929), syllabus. “A ‘joint enterprise’ within the law of imputed negligence

is the joint prosecution of a common purpose under such circumstances that each member of

such enterprise has the authority to act for all in respect to the control of the agencies employed

to execute such common purpose.” Id. “‘Parties cannot be said to be engaged in a joint

enterprise, within the meaning of the law of negligence, unless there be a community of interests

in the objects or purposes of the undertaking, and an equal right to direct and govern the

movements and conduct of each other with respect thereto. Each must have some voice and

right to be heard in its control or management.’” Id. at 244, quoting St. Louis & Sante Fé R. Co.

v. Bell, 58 Okl. 84, 159 P. 336, L. R. A. 1917A, 543; Landry v. Hubert, 100 Vt. 268, 137 A. 97;

Jessup, Adm’x v. Davis, 115 Neb. 1, 211 N. W. 190, 56 A. L. R. 1403.

        {¶ 32} In Bloom, the court determined that a joint enterprise did not exist between an

operator of a motor vehicle and a passenger when the evidence failed to establish that the

passenger “had any power or control over the vehicle in which they were riding.” Id. at 245.

Instead, the evidence showed, at most, that the passenger advised the driver of the location to

which they were traveling and that the driver asked the passenger to help look for any
ROSS, 19CA3676                                                                                  14

approaching vehicles. The court noted that the evidence failed to show that the passenger “had

any power or control over the vehicle in which they were riding, or that he had any such authority

as would show that he had joint control with * * * the owner and driver of the car.” Id. The

court acknowledged that the driver and the passenger may have shared a common purpose when

embarking on the drive, but nevertheless determined that simply because the trip “was beneficial

to both” did not mean that they had “joint operation or control of the automobile in which they

were riding.” Id. The court explained that to establish a joint undertaking between the driver

and a passenger in a motor vehicle, “‘it is not sufficient merely that the passenger or occupant of

the machine indicate[s] to the driver or chauffeur the route he may wish to travel, or the places to

which he wishes to go, even though in this respect there exists between them a common

enterprise of riding together.” Id. at 245-246, quoting Bryant v. Pac. Elec. Ry. Co., 174 Cal.

737, 164 P. 385. Instead, the court explained, “[t]he circumstances must be such as to show that

the occupant and the driver together had such control and direction over the automobile as to be

practically in the joint or common possession of it.’” Id. at 246, quoting Bryant v. Pac. Elec. Ry.

Co., 174 Cal. 737, 164 P. 385. The court further stated that “‘[t]he negligence of the driver of a

vehicle is not imputable to the passenger merely because the passenger suggested a ride, and

directed as to the place where the car was to be driven.’” Id., quoting Cram v. City of Des

Moines, 185 Iowa, 1292, 172 N. W. 23.

        {¶ 33} The court thus held:

               “A joint adventure in the use of an automobile, implies a common
        possession and right of control of the vehicle and a responsibility for its negligent
        operation equally common to all of its occupants; and therefore the rule or
        doctrine of joint adventure should be restricted to cases in which these essentials
        are clearly apparent from the agreement of the parties, or arise as a logical
ROSS, 19CA3676                                                                                    15

        inference or legal conclusion from the facts found by the trier.”

Id., quoting Bryant v. Pac. Elec. Ry. Co., 174 Cal. 737, 164 P. 385.

        {¶ 34} In the case sub judice, we do not believe that the record contains any evidence to

suggest that appellees and Richards were engaged in a joint enterprise.             Even though the

dealership owned the car, ownership of a car does not, in itself, also show the necessary right of

control over the vehicle. Furthermore, the salesman’s decision to accompany Richards and the

prospective purchaser on the test drive does not necessarily establish that the salesman had a

right to joint control over the vehicle. Moreover, we question whether Richards and appellees

shared a community of interests in the objects or purposes of the test drive. The purpose of the

test drive from Richards’ standpoint is to help Richards’ friend decide whether to purchase the

car. The purpose of the test drive from appellees’ standpoint was to sell the car to Richards’

friend. Richards’ purpose thus was to help her friend decide whether to buy the car. Appellees’

purpose was to sell the car. The parties to the alleged joint enterprise thus did not share the

same interest in the object of the test drive. Instead, they held different interests.

        {¶ 35} Additionally, as we observed in our discussion of appellant’s first assignment of

error, the Louisiana case that appellant cited, Barnett, declined to hold a car dealership liable

under an imputed-negligence, joint-enterprise theory based on the mere fact of a prospective

purchaser’s test drive during which the salesperson also is an occupant. We likewise do not

believe that the joint enterprise theory of imputed negligence applies so as to render a car

dealership and its salesperson liable for injuries that result to a third party during the course of a

prospective purchaser’s test drive.

        {¶ 36} We recognize that appellant cites a Colorado case that found a car dealership
ROSS, 19CA3676                                                                                                 16

liable under a joint venture theory of imputed negligence. American Family Mut. Ins. Co. v.

AN/CF Acquisition Corp., 361 P.3d 1098 (Colo.App. 2015). We decline, however, appellant’s

invitation to adopt the same rule. Instead, we believe that the Ohio Supreme Court should be the

court to decide whether to adopt a rule that holds car dealerships liable under a joint venture

theory of imputed negligence.1

        {¶ 37} Accordingly, based upon the foregoing reasons, we overrule appellant’s second

assignment of error and affirm the trial court’s judgment.

                                                                                  JUDGMENT AFFIRMED.




        1
           Although neither party cites the following Ohio case, we note that a 1939 Ohio appellate decision found
that a car dealer could be held liable for a prospective purchaser’s negligent operation of the car dealer’s motor
vehicle during a test drive under the doctrine of respondeat superior. Dahnke v. Meggitt, 63 Ohio App. 252, 255, 26
N.E.2d 223 (6th Dist.1939). Because neither party has argued the applicability of Dahnke to the facts involved in
the case sub judice, we do not address it.
ROSS, 19CA3676                                                                              17

                                     JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellees recover of appellant the

costs herein taxed.

        The Court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this Court directing the Ross County

Common Pleas Court to carry this judgment into execution.

        A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

        Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

                                                    For the Court




                                                    BY:
                                                    Peter B. Abele, Judge
ROSS, 19CA3676                                                                               18

                                   NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
