ORAL ARGUMENT IS NOT REQUESTED

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRIAN ROBISON, et al APPELLANTS VS. NO. 2009-CA-00383 ENTERPRISE RENT -A-CAR COMPANY APPELLEE APPEAL FROM THE CIRCUIT COURT OF LEE COUNTY, MISSISSIPPI BRIEF FOR APPELLANTS T. K. MOFFETT (MS Bar No." MOFFETT LAW FIRM, PLLC 401 North Main Street Amory, MS 38821 Telephone: (662) 257-0809 Facsimile: (662) 257-9988 Attorney for Appellants ORAL ARGUMENT IS NOT REQUESTED

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRIAN ROBISON, et al APPELLANTS VS. NO. 2009-CA-00383 ENTERPRISE RENT-A-CAR COMPANY APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. Brian Robison and Lisa Robison, Guntown, MS [Appellants; parents of Appellant, Tess Nicole Robison (Blankenship); filed original suit in Lee County Circuit Court cause Number ev07-022(f)l]; Tess Nicole Robison (Blankenship), Guntown, MS [Appellant; injured party; filed original suit in Lee County Circuit Court cause Number ev07-022(f)l]; Honorable T.K. Moffett, Tupelo, MS (attorney for the Robisons); Entemrise Rent-a-car Company; Enterprise Leasing Company - South Central. Inc., Birmingham, AL [Appellee; Defendant in Lee County Circuit Court cause Number ev07-022(f)l]; James K. Knight, Tupelo, MS [Defendant in Lee County Circuit Court cause Number ev07-022(f)l (dismissed from litigation with prejudice); father of Gregory H. Knight, driver of vehicle rented from Enterprise];

Honorable Sean Mount. Metarie, LA (attorney for Enterprise); Honorable Paul Funderburk, Tupelo, eft.. MS (presiding Circuit Court judge). RESPECTFULLY SUBMITTED, this the F day of October, 2009. ii

TABLE OF CONTENTS Certificate of Interested Persons... i Table of Authorities... iv Statement of the Issues...;... 1 Statement of the case... 2 Procedural History... 2 Statement of Facts... 4 Summary of the Argument... 5 Argument... 7 Conclusion... 9 Certificate of Service... 10 Certificate of Filing... 11 iii

TABLE OF AUTHORITIES MISSISSIPPI RULES OF CML PROCEDURE Rule 12(b )6... 4 JUDICIAL DECISIONS Anderson v. Daniel, 136 Miss. 456, 101 So. 498 (Miss. 1924)... ;... 8, 9 Dixie Drive It Yourself System Jackson Co. v. Matthews, 54 So.2d 263 (MiSS. 1951)... 8 Hancock v. Mid American Insurance Services, Inc., 836 So.2d 762 (MiSS. 2003)... 7 Herrman v. Maley, 159 Miss. 538, 132 So. 541 (MiSS. 1931)... 8 Howard v. Estate of Harper, 947 SO.2d 854 (MiSS. 2006)....7 Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-0hlo-5849, 797 N.E. 2 nd 1256....7 iv

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRIAN ROBISON, et al APPELLANTS VS. NO. 2009-CA-00383 ENTERPRISE RENT-A-CAR COMPANY APPELLEE STATEMENT OF THE ISSUES 1. Whether the Lee County Circuit Court erred in dismissing the Robisons' Complaint for failure to state a claim upon which relief can be granted. 1

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRIAN ROBISON, et al APPELLANTS VS. NO. 2009-CA-00383 ENTERPRISE RENT-A-CAR COMPANY APPELLEE BRIEF FOR THE APPELLANTS STATEMENT OF THE CASE Procedural History On June 10, 2005, Tess Nicole Robison (who was a minor at the time) was riding as a front-seat passenger in a vehicle being driven by Gregory H. Knight, a minor. (RE- 7). The subject vehicle was rented from Enterprise Rent-a-Car Company (Enterprise Leasing Company - South Central, Inc.) [hereinafter referred to as "Enterprise'1 in Tupelo, Mississippi by James K. Knight, Gregory H. Knight's father. (RE-6). Enterprise refused to rent the vehicle to Gregory H. Knight because he was a minor. (RE-11, RE- 16). However, Enterprise had actual knowledge that James K. Knight was renting the vehicle for Gregory H. Knight's use. (RE-11). At approximately 11:53 p.m. on June 10, 2005, Gregory H. Knight was traveling South on County Road 681 in Lee County, Mississippi, when he lost control of the vehicle and crashed into a fence and a tree before coming to rest on the West side of the roadway backed into an embankment. (RE-8). 80th Gregory Knight and Tess Robison were ejected from the vehicle. (RE-9). 2

As a direct and proximate result of the collision, Gregory H. Knight was killed, and Tess Robison received life threatening injuries. (RE-9). In addition, Tess Robison and her parents, Brian Robison and Lisa Robison, incurred lost wages from their employment. (CP-4). The Robisons filed a Complaint in the Lee County Circuit Court, Cause Number CV07-022 (F)L, on the 14th day of February, 2007, against James K. Knight, The Estate of Gregory H. Knight and Enterprise. (CP-2). The Robisons alleged that James K. Knight was negligent in providing and entrusting his minor son with a motor vehicle while having actual knowledge of his previous negative driving history and further alleged that he was negligent in renting a vehicle from Enterprise for his son's use. (CP-4). In addition to claims against the Estate of Gregory H. Knight, the Complaint further alleged that Enterprise was negligent in renting a vehicle to James K. Knight while having actual knowledge that he was renting the vehicle for his minor son's use. (CP-5). The claims against James K. Knight and the Estate of Gregory H. Knight were subsequently resolved, and both of these Defendants were dismissed from the litigation with prejudice on the 29 th day of November, 2007. (CP-22). Enterprise then filed a Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted on the 3,d day of March, 2008, (CP-27), and a hearing was held on same on July 1, 2008. (CP- 65). 3

The Court entered its ruling on the 4th day of February, 2009 granting Enterprise's Motion to Dismiss. (RE-4). The Court stated that there was no relationship between the rental and/or ownership of the vehicle and the injuries suffered by Tess Robison, and thus, the Complaint should be dismissed pursuant to Rule 12(b)6 of the Mississippi Rules of O"vil Procedure for failure to state a claim upon which relief can be granted. (RE-4). The Robisons timely filed a Notice of Appeal on the 3,d day of March, 2009, appealing the Court's February 4th final order. (CP-74). Statement of Facts Gregory Knight was 18 years old at the time of the subject accident, and he was driving on a suspended license. (RE-l1). Gregory Knight had been involved in an accident prior to the one that is the subject of this litigation, which resulted in the need to rent a vehicle while his was being repaired. (RE-14). Gregory Knight initially sought to rent a vehicle on his own from Enterprise, but was turned down because he was a minor. (RE-l1, RE-16-17). Gregory called his father and requested that he sign the paperwork on his behalf. (RE-17a). On June 10, 2005, Gregory's father met him at Enterprise and signed the Rental car Agreement. RE-17). Enterprise was aware of the circumstances in renting the vehicle, and they had actual knowledge that Gregory Knight was the intended driver. (RE-l1, RE-13). In addition to the previous accident, Gregory Knight also had a few tickets on his driving record. (RE-16). The subject accident occurred on the same date that the vehicle was rented from Enterprise. 4

The following facts are undisputed: Enterprise refused to rent a vehicle to Gregory Knight because he was a minor; James K. Knight rented the automobile from Enterprise on June 10, 2005 for Gregory Knight's use; Enterprise had actual knowledge that Gregory Knight was the intended driver of the vehicle; Gregory Knight was driving the subject automobile on June 10,2005 at the time of the accident; Gregory Knight caused the accident on June 10, 2005 which resulted in his death and injuries to Plaintiff, Tess Robison. SUMMARY OF THE ARGUMENT The Lee County Circuit Court dismissed the Robison's Complaint for failure to state a claim upon which relief can be granted because, it reasoned, that there was no relationship between the rental and/or ownership of the vehicle and the injuries suffered by Tess Robison as a result of the accident. (CP-72). The Robisons disagree with this ruling, because they believe that there are questions of fact regarding whether or not Enterprise owed a duty to the Robisons which would preclude a dismissal and warrant a trial by jury. The Defendant argues that it has no duty because it rented the vehicle to James Knight, and the rental contract states, "no other driver permitted'. (RE-6). However, 5

James Knight executed the rental agreement on behalf of his son. Gregory Knight had already attempted to rent the vehicle himself, but was denied because he was under the age of twenty-one. (RE-ll, RE-l6-l7). Mr. Knighttestified in his deposition that Gregory Knight called him, told him that he could not rent the vehicle, and requested that Mr. Knight assist him in renting it. (RE-l5-l6). Mr. Knight further testified that the Enterprise employees knew his son was going to drive the vehicle because his son had already been there once, was denied a rental contract because of his age, and then brought Mr. Knight to sign the paperwork that same day. (RE-lS). In addition to providing testimony by deposition, Mr. Knight also executed an Affidavit which again states that Enterprise had actual knowledge that Gregory Knight would be operating the vehicle. (RE-ll). Enterprise was further aware that Gregory Knight had been involved in an accident which created the need for a rental vehicle in the first place, and they were also aware that he had citations against his driving history which caused Mr. Knight's insurance to increase. (RE-l6). Whether or not Enterprise knew or should have known in exercise of reasonable care that Gregory Knight was the intended driver of the subject vehicle and whether Enterprise negligently entrusted the vehicle to Gregory Knight are questions of fact for determination by a jury. There is no dispute of fact that the negligence of Gregory Knight caused the damages of Appellants. 6

ARGUMENT I. THE CIRCUIT COURT ERRED BY DISMISSING THE ROBISON'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. The burden of demonstrating that there is no genuine issue of material fact falls upon the party requesting the dismissal. 1 When considering a Motion to Dismiss, the allegations in the Complaint must be taken as true and the Motion should be granted, "... only if the Defendant can show beyond doubt that the law offers the Plaintiff no possible remedy.,,2 The Robinsons argue that Gregory Knight was an insured although he was not listed on the rental contract, because both James Knight and Enterprise had actual knowledge that Gregory Knight would be the one driving the vehicle. Gregory Knight had a suspended driver's license on the date of the accident (RE-9), he had just been involved in another accident which prompted the need to rent a vehicle from Enterprise (RE-14-15), and James Knight personally told Enterprise that his son's driving record was checkered. (RE-16-17). In Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003), the Court held that the role of the Court, when interpreting the terms of any contract, is to "give effect to the intention of the parties.'tj Mr. Knight testified that he was never asked to read the contract (RE-17b); that when he arrived at Enterprise, he was there long enough to, 1 Hancock v. Mid American Insurance Services, Inc., 836 SO.2d 762 (Miss. 2003). 2 Howard v. Estate of Harper, 947 SO.2d 854 (Miss. 2006). 3 Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-0hio-5849, 797 N.E. 2nd 1256, at 119-11. 7

"tell them what I wanted - what they wanted to know. What I wanted to tell them, and they told me to sign right here. And I signed and went out and got-they showed me the car, and I drove the caraway." (RE-17a). The intent of the parties was to rent a vehicle to James Knight for use by his minor son, Gregory Knight, whose vehicle was in the shop for repairs. All of the parties were aware that Gregory would be driving the rented vehicle. Gregory had previously attempted to rent the vehicle himself, was denied because of his age, and therefore, had his father rent the vehicle for him. Assuming the facts in the light most favorable to the Appellants, Enterprise had actual knowledge that Gregory Knight would be driving the vehicle, and therefore owed a duty to the Robisons. Whether Enterprise breached that duty and negligently entrusted its vehicle to Gregory Knight are questions of fact for a jury to determine. The Court in Dixie Drive It Yourself System Jackson Co. v. Matthews, 54 So.2d 263 (MiSS. 1951), held that: "This court is definitely committed to the principle that when the owner of an automobile entrusts it to one whom he knows, or in the exercise of ordinary care ought to know, is a careless and reckless driver, the owner becomes liable for an injury which results as a proximate consequence thereof. [citing Anderson II. Danie~ 136 Miss. 456, 101 So. 498 (MiSS. 1924) and Herrman v. Maley, 159 Miss. 538, 132 So. 541 (MiSS. 1931).}" The same principal that applied in Dixie applies to the case at bar. Further, the Court held in Anderson v. Danielthat the issue of fact of whether a minor child, who was a reckless driver of an automobile, was driving his father's car at the time of the injury complained of with his father's knowledge or consent, evidence to the effect that the child was a member of the father's household, that he was in the 8

habit of driving the car, and that he was a reckless driver and had the reputation as such in the neighborhood where his father lived, was sufficient to make it a question for the jury.4 Whether or not Enterprise knew or should have known that Gregory Knight was the intended driver of the subject vehicle, and whether Enterprise negligently entrusted the vehicle to Gregory Knight are questions of fact for determination by a jury. CONCLUSION By its conduct, Enterprise had actual knowledge that the rental contract would be breached when it was entered into with James Knight. They were aware that the minor child, Gregory Knight, was the intended driver of the subject vehicle, and they rented said vehicle to Gregory Knight's father despite this fact. Whether or not Enterprise owed a duty to Plaintiffs and the extent of that duty is a question of fact to be decided by a jury. Therefore, the ruling of the Lee County Circuit Court should be reversed, and this case should be remanded for a jury trial. ~ RESPECTFULLY SUBMITTED, this the J day of October, 2009. BRIAN ROBISON, et at, Appellants OF COUNSEL: MOFFETT LAW FIRM, PLLC 401 NORTH MAIN STREET AMORY, MISSISSIPPI 38821 TELEPHONE: (662) 257-0809 FACSIMILE: (662) 257-9988 T.K. MOFFETT (M r No.- Attorney for Appel ants 4 Anderson v. Daniel. 136 Miss. 456, 101 So. 498 (Miss. 1924). 9

CERTIFICATE OF SERVICE This is to certify that I, T.K. Moffett, have this day delivered a true and correct copy of the above and foregoing BRIEF FOR APPELLANTS to the following individuals by placing a copy of same in United States mail, postage prepaid, and mailing to them at their usual business addresses: Honorable Sean Mount, substituting for Honorable David B. Estes Hailey, McNamara, Hall, Larmann & Papale, LLP Attorneys at Law 1 Galleria Boulevard, Suite 1400 Metarie, LA 70001 Honorable Paul Funderburk Circuit Court Judge, District 1 PO Drawer 1100 Tupelo, MS 388~ Dated, this the ( day of October, 2009. T. K. MOFFETT Attorney for Appellants 10

CERTIFICATE OF FILING Four (4) copies of the Brief for Appellants have this date been filed by depositing same with Federal Express to be delivered to: Ms. Betty W. Sephton, Clerk Supreme Court of the State of Mississippi Court of Appeals of the State of Mississippi 450 High Street Jackson, MS 39201?1L Dated, this the ~ day of October, 2009. T. K. MOFFETT Attorney for Appellants 11