Borrowing cars and implied consent: When ‘No’ doesn’t mean ‘No.’
If a friend asks you to borrow your rental car, sometimes saying ‘No’ doesn’t actually mean ‘No.’
An auto repair shop owner in Ontario was held vicariously liable last Wednesday for an auto accident injury caused after his friend, who had a criminal history of stealing cars, helped himself to the keys to the shop owner’s rental car. While taking the car out for a joyride, the shop owner’s friend called to say the car was involved in an auto accident.
Ontario’s Superior Court found that although the shop owner claims he told his friend, ‘No,’ when asked to use the vehicle, he actually implied consent by not calling police to report the vehicle stolen, and he made no effort to hide the keys from his friend.
The shop owner, Mohammed Ganjikhany (the court refers to him by his initials, ‘MG’), testified in court that he had rented a Chevrolet Cruz and brought the vehicle to his shop in July 2017, when he parked it in the adjacent parking lot. He put the keys on a hook on a board where both employees and customers’ keys were kept.
Azita Moocheh [‘AM,’ in the court’s decision] and Vahid Pashahzahiri [VP] visited the shop between 8:30 and 9 p.m. Ganjikhany had known Moocheh for about two years; he had never met Pashahzahiri. After a brief discussion, Moocheh and Pashahzahiri said they were going out for cigarettes. They asked Ganjikhany if they could use his rental. Ganjikhani said he replied “no.” Moocheh and Pashahzahiri then left the shop and did not return.
About 11:30 p.m., Ganjikhani was planning to leave for home when he noticed both the keys and the vehicle were missing. After several attempts, he reached Moocheh on his cell phone. Moocheh said he and Pashahzahiri had taken the vehicle to Woodbine casino in Etobicoke, Ont.
Without a car, Ganjikhani decided to spend the night at the shop. The next morning, he took a taxi to and a bus from the Brampton courthouse where he was scheduled to attend. He learned from Moocheh early that afternoon the vehicle had been involved in an accident. The accident injured Bijan Nagash, who was in the other vehicle involved in the collision.
Related: When parents give their kids permission to drive: the limit to ‘implied consent’
The court ultimately rejected Ganjikhany’s testimony that he refused Moocheh’s request to borrow his car. The shop owner’s actions when he discovered the vehicle missing were not consistent with how he might be expected to behave when he found out his friend disobeyed him, the court observed.
For one thing, he did not call the cops and report the vehicle stolen.
“When MG noticed the vehicle was missing, he assumed that AM had taken it,” Ontario Superior Court Justice John McCarthy wrote in the court’s decision. “That assumption was confirmed when, after several attempts to reach AM, MG finally spoke with him and asked that the vehicle be returned.
“When asked why he did not call the police, MG replied that the vehicle had not been stolen; he had spoken to his friend and understood that the vehicle would soon be returned. This is consistent with his evidence that he did not consider there to have been a robbery….
“I find this pattern of reaction and conduct on the part of MG to be inconsistent with what one would reasonably expect on the part of an individual who had flatly refused to lend his vehicle to a friend a short time before. On the contrary, I find MG’s reaction and behavior to be far more consistent with a person who understood and accepted that his vehicle was in AM’s possession with his consent….”
“Had MG greeted the request from AM and VP for the use of his vehicle with a flat no, then his subsequent discovery that the pair had taken the vehicle against his wishes, not just to purchase cigarettes, but for a jaunt to the casino, would have prompted and even compelled MG to contact the police. The circumstances in which the vehicle was taken would have allowed for no other reasonable course of action.”
Second, knowing his friend’s criminal past, which included stealing cars, Ganjikhany should have tried to secure or hide the keys before meeting with his friend in the shop, the court found.
‘[A] hard look supports a finding that there was either express or implied consent for AM and VP to make use of the vehicle,” McCarthy wrote.
“AM was no stranger to MG; they had been friends for several years; AM was a frequent enough visitor to the shop; MG had furnished AM with money in the past; AM had even been employed at the shop at one time; MG knew of AM’s criminal history which included stealing cars; the keys to the vehicle were kept in a conspicuous enough location (on a hook on a board by a door to the entrance to the office) – their location would have been well known to somebody with familiarity with the shop….
“Had MG truly rejected his friend’s request to make use of the vehicle, I find that he would have taken steps to safeguard the keys to ensure that his wishes were not disregarded. After all, he must have known of his friend’s criminal past and would have appreciated AM’s familiarity with where keys were kept. No such precautions were taken.”
Feature photo courtesy of iStock.com/Piotr Adamowicz
