(defining "operator" under MVSRA as "every person who drives or is in actual physical
control of a motor vehicle upon a public highway"). Here, plaintiff alleges in the
Shear v. Nat '[ Rifle Ass 'n of Am., 606 F.2d 1251, 1253
Complaint, and therefore admits,
(D.C. Cir. 1979), that at the time of the accident the car was stolen and was being driven
by two unknown individuals, (Clark Compi.
11).6 A stolen car, by definition, is one
that is operated without the owner's consent. Accordingly, even assuming that Flach
consented to Lacey's use of the Jaguar, MVSRA cannot create an agency relationship
between Flach and Lacey upon which the Flach Estate can be liable for an accident
caused by Lacey's failure to prevent the Jaguar's theft and collision with plaintiff.
Athridge, 312 F.3d at 477 ("Under District of Columbia law, an automobile owner is
without contradiction that the
entitled to judgment as a matter of law if he or she asserts
vehicle was taken and used without consent.");
Curtis v. Cuff, 537 A.2d 1072, 1073 (D.C.
1987) ("Because appellant offered uncontested evidence to rebut the statutory
presumption of consent, she was entitled to judgment as a matter of law."). Plaintiffs
claim against the Flach Estate in both actions therefore must be dismissed.
In plaintiff s opposition brief, she attempts to call into question whether the car was, in
fact, stolen, stating that plaintiff "ha[s] evidence that Defendant Lacey may have been the one
driving the vehicle at the time of the accident." (Pl.'s Opp'n to Def. Flach Estate's Motion to
Dismiss at 8, No. 08cv779 [Dkt. #12].) The Court, however, when evaluating a Rule 12(b)(6)
motion, may not consider facts alleged only in the briefs, particularly when they conflict with
those alleged in the complaint.
Dep't of Navy,
29 F.3d 682, 688 (D.C. Cir. 1994).
The Court also notes that, given plaintiffs admission that the car was stolen, plaintiffs
complaint fails to allege facts sufficient to plead a
negligence claim, which requires
alleging a causal link between the defendant's acts and the plaintiffs injury.
See District of
291 A.2d 83, 84 (D.C. 1972). In ordinary circumstances, an intervening act
by a third party "breaks the chain if it is not reasonably foreseeable."
588 A.2d 708, 716 (D.C. 1991). But when the intervening act is
Metro. Area Transit Auth.,