August 8, 2017

Vehicle and Traffic Law §388 establishes a rebuttable presumption that a vehicle owner consented to the operation of her vehicle by another party once a plaintiff meets the threshold requirement of proving a defendant’s ownership of a vehicle. As an owner is vicariously liable for the acts of a permitted driver, the owner’s fault is not an issue. Reyes v. Chee Trucking, 20 Misc. 3d 1109(a) (N.Y. Sup. Ct. June 27, 2008).

The justification of this statute is twofold. First VTL §388 prevents vehicle owners from disclaiming liability simply by a self-serving claim that a vehicle was being used without their permission. Id. Second, VTL §388 encourages owners to be judicious with whom they give authority to use their vehicle. If owners select better and more responsible drivers then, theoretically, fewer accidents will occur. Id.

Once the rebuttable presumption has been established, the burden shifts to the defendant to offer “substantial evidence” that consent was neither given expressly or impliedly. If the defendant cannot produce such evidence, then the question of consent will go to the jury. While this seems pretty straightforward, this burden is fairly difficult to meet.

Permission Granted

In Bernard v. Mumuni, 6 N.Y. 3d 881 (2006), the owner of a minivan had recently sold his car, but was going out of town before the exchange could be made. He left it with his friend to complete the deal. The friend’s son, who was recently home from college, saw the keys to the car on the table and assumed that it was the car that his father had mentioned he was going to buy for his son. The son, who was not a licensed driver, got into an accident while driving the minivan and plaintiff tried to impose liability on the owner-defendant via VTL §388.

The court found that the question of consent belonged to the jury as the owner’s friend claimed that the defendant never said not to operate the vehicle. As such, the court found that a reasonable jury could infer that implied consent could extend to any person who drove the minivan. Since the owner put the chain of events in motion, he could be found liable for the resulting accident even though his friend’s son did not have a driver’s license. The lack of a driver’s license does not negate statutory liability.

In Cherry v. Tucker, 5 A.D. 3d 433 (2nd Dep’t), a security guard was involved in a car accident. The defendant-owner presented evidence that guards were not allowed to drive the vehicles, that the guard was the last one to drive the car, and that the owner filed a missing vehicle report 12 days after the car was last seen. The court still did not consider this substantial evidence to rebut the presumption that the car was driven with the owner’s consent and the question went to the jury. The court so held without offering further explanation as to why the evidence was insubstantial.

In the few cases where the question of permissive use did not go to the jury, the deciding factor tended to be that both the driver and the owner agreed that the driver did not have permission to operate the vehicle.

Permission Denied

In Am. County Ins. v. Umude, 2017 NYLJ LEXIS 1740, the owner had his vehicle parked overnight at his mother’s house where his brother also lived. The brother took the car and got into an accident. The owner went to see his brother in the hospital after the accident where he told a police officer that he had not given his brother permission to use the car. Although the court noted that “disavowals by the owner and the driver, without more, should not automatically result in summary judgement for the owner,” id., the disavowals were not the only evidence proffered. The owner also submitted a police report supporting his version and his brother was charged with Unauthorized Use of a Vehicle in the First Degree and indicted for Unauthorized Use of a Vehicle in the Third Degree. The court determined that the disavowal by the owner along with his subsequent police report and the brother’s indictment were together enough to dispel the presumption of consent.

Cuellar v. Gelco, 2009 N.Y. Misc. LEXIS 5889 (N.Y. Sup. Ct. 2009) is another example where the presumption of consent was successfully rebutted. The plaintiff was hit by a car driven by the adult son of a company employee. The company leased the vehicle for the employee. As evidence that the son did not have permission to drive the car, the defense offered uncontradicted statements by both the owner and driver of the car that the driver was operating the vehicle without the owner’s permission. This was “substantial evidence” sufficient to rebut the presumption of owner consent.

However, even if the defendant meets this burden, the question of consent will still go to the jury if there is evidence suggesting implausibility, collusion, or implied permission. Country Wide Ins. V. Nat’l R.R. Passenger, 6 N.Y.3d 172 (N.Y. Feb. 14, 2006). In response to this second requirement in Cuellar, the defense demonstrated that their employee manual did not permit anyone other than the employee and his spouse to operate the vehicle as well as evidence that the employee explicitly told his son that he could not use it. In the face of this evidence, the court granted summary judgment for the defendants.

Permission Denied, With a Catch

Matter of Eagle Ins. V. Lucia, 33 A.D. 3d 552 (1st Dep’t 2006) provides an example of when evidence can create a question for a jury where the issue of consent has already been presumptively rebutted by the defendant. In this case, a daughter was given permission to use the mother’s car. However, the mother testified that she had given her daughter permission to use the car only to go to a play at her school and specifically said no one else could drive it The daughter testified that she knew no one else could use the car and only gave the keys to a friend to retrieve some books from the car. The friend, though, allowed her boyfriend to drive causing the accident.

Under these facts the mother would be liable under VTL §388 if she had given her daughter unrestricted use of the car, but not the restricted use she testified to have given. Because the mother’s testimony could be viewed as self-serving, the court gave the question of consent to the jury. The court allowed the jury to determine if the mother’s testimony was credible whereas testimony without such self-interest would normally serve to rebut the presumption of consent.

Limited Scope of Permission

Limitations on the scope of consent can also defeat implied consent. In Britt v. Pharmacologic Pet Servs., 36 A.D. 3d (3d Dep’t 2007), plaintiff was involved in an accident with a car driven by defendant-employee. The employee had permission from his supervisor to use the car to drive to and from work. When the accident occurred, the employee was using the car for his own personal purposes and was not traveling to or from work. Since the employee and his supervisor both testified that the permission was limited only to traveling to and from work, this is enough to rebut the presumption of implied consent. This was so despite evidence offered by the plaintiff that other employees had typically used the work cars for personal purposes. Plaintiff’s evidence was not enough to raise a question of fact as to implausibility, collusion, or implied permission.

Croke v. Osburn, 32 Misc. 3d 1233(A) (N.Y. Sup. Ct. 2011) presents another case where the scope of consent was exceeded allowing an owner to escape liability. Plaintiff was involved in an accident when defendant-driver was operating a vehicle that was left at an auto sop by defendant-owner. The owner had taken the car to the auto shop in order to get his flat tire repaired. He had also left his car keys with the auto shop. The owner submitted an affidavit that he left his keys with the auto shop only for the purposes of unlocking the car order to change the flat tire. The court ruled that this affidavit was prima facie sufficient to establish that there was no express or implied consent given to the auto shop to operate the vehicle. Since the plaintiff and co-defendant did not submit affidavits indicating why the car was being driven at the time of the accident or that the owner had consented to the vehicle being test driven or taken on the road, summary judgment was granted to the owner.

Waiver of Liability

Kim v. Doe, 25 Misc. 3d 65 (N.Y. App. Term 2009), considered a question regarding the short-term use of a car for a test drive. Plaintiffs attended a seminar where they went for a test drive of a car owned by defendant-Ford Motor Company and were injured in an ensuing accident. The plaintiffs had signed a release disclaiming all liability. The court ruled that an owner like Ford cannot completely disclaim all liability under VTL §388. Such a release was determined to be against public policy as it would leave the plaintiffs without a financially responsible party from whom to recover for their injuries.

Car-Related Accidents

VTL §388 also holds vehicle owners responsible for incidents that occur even while the vehicle is not being driven if the incident is caused in relation to the vehicle. In Reyes v. Chee Trucking, 20 Misc. 3d 1109(A) (N.Y. Sup. Ct. 2008), the driver, an employee of the vehicle owner, turned on a car while a mechanic was inspecting it at a shop severing the mechanic’s fingers. Because the driver had taken it to the mechanic while operating it with the owner’s consent, the owner could be held liable for the mechanic’s injuries.

Graves Amendment

In the past, accident victims were able to sue lessors of vehicles under VTL §388. However, in 2005 Congress enacted the Graves Amendment, 49 U.S.C.S. §30106, which pre-empted VTL §388in regards to lessor liability. Now, as a matter of law, lessors are not liable for the negligent acts committed by their driver-lessees as long as there is no negligence or criminal wrongdoing on the part of the lessor-owner. It should be noted that most cases are dismissed via the Graves Amendment before they reach the jury as courts have determined that the negligence clause is “rarely applicable” as Congress’s intent was to bar this type of vicarious liability. Zwibel v. Midway Automotive Group, 30 Misc. 3d 1232(A)(N.Y. Sup. Ct. 2011).

However, in Busse v. Lowe’s Home Ctrs., 24 Misc. 3d 1238 (A) (N.Y. Sup. Ct. 2009), the plaintiffs were able continue a lawsuit against a defendant-owner despite the Graves Amendment. Plaintiffs were able to do so by claiming the party that directly injured them was an agent of the defendant-owner via the lease agreement so defendant-owner owed them a duty of care. The court determined that if agency could be proven, then a jury could find that defendant owed plaintiff a duty of care.


VTL §388 establishes that ownership of a vehicle in and of itself creates a rebuttable presumption of consent. It was enacted to assure that plaintiffs in motor vehicle accidents would always have access to a responsible, and hopefully insured, party of financial compensation, New York courts usually let the question of consent go to the jury. In order t combat this, the owner needs to offer unassailable evidence that there was a lack of consent or that the scope of consent was exceeded without collusion, implausibility, or implied consent. It is a difficult burden to meet as the courts strive to ensure that the public policy purposes of the statute are enacted.

Kevin G. Faley and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso & Faley. Maximilian Rodriguez, a paralegal, assisted in the preparation of this article.


Reprinted with permission from the August 8, 2017 edition of the New York Law Journal © 2017 ALM Media Properties, LLC. All rights reserved.

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