Negligent Entrustment
| Jurisdiction | Colorado,United States |
| Citation | Vol. 16 No. 4 Pg. 642 |
| Pages | 642 |
| Publication year | 1987 |
1987, April, Pg. 642. Negligent Entrustment
This article discusses the theory of negligent entrustment, which was expressly adopted in Colorado in the case of Hasagawa v. Day.(fn1) In Hasagawa, the court adopted the definition set forth in the Restatement (Second) of Torts§ 308 (1965).(fn2) The Restatement definition imposes liability on a person (the entrustor) who permits another (the entrustee) to use an object under the entrustor's control when the entrustor has knowledge or a reason to know that the entrustee intends to use or is likely to use the object in a manner which creates an unreasonable risk of harm to others.(fn3)
The object can be entrusted in a variety of ways, including a gift, temporary loan, formal lease and even sale.(fn4) The entrustor can only be found liable where the entrustee is also found to be negligent. However, liability requires an independent finding that the entrustor was negligent in supplying the entrusted object. The entrustor's negligence is proven by establishing three elements: permission, control and knowledge. While Colorado negligent entrustment case law is limited,(fn5) cases from other jurisdictions amply illustrate these elements.(fn6)
In negligent entrustment, the entrustor's permission to use an object can be direct or indirect. Parents of a ten-year-old could verbally permit their child to use a gun for target practice or could impliedly permit their child to use the gun by leaving the key to the gun cabinet or the loaded gun within the child's reach.(fn7) Implied permission also can exist where the entrustor specifically instructs the entrustee not to use an object but then makes the object available to the entrustee. For example, a mother with knowledge that her seventeen-year-old, unlicensed son desires to drive can expressly forbid the son to use the vehicle, but can imply permission to drive by constantly giving the son access to the car keys when he waits for her in the car.(fn8)
Implied permission questions often arise because of the established course of conduct between individuals' personal or professional relationships. Where an employee is routinely given access to the employer's vehicle and then has an accident while driving the vehicle without actual permission, a fact question may exist as to whether the employee had implied permission to use the vehicle.(fn9)
Permission issues can also arise in the theft context. In one case, there was an issue of fact as to whether a gun dealer gave permission to a customer to take a gun.(fn10) The intoxicated customer had been given permission to view the store's guns and ammunition. After viewing the inventory, the customer stole the gun and ammunition, which he then used to shoot his wife.
The entrustor must have the right to the possession or use of the entrusted object before the entrustor is deemed to have "control." The entrustor has control if, by withholding consent, the entrustor can legally and practically prevent the entrustee from gaining access to the object.(fn11) If the entrustor has no legal right or duty to control the object, the object cannot be entrusted. For example, a non-owner passenger of a vehicle has no right to control the vehicle and therefore cannot negligently entrust the vehicle to the intoxicated owner.(fn12) Where a vehicle is jointly loaned to two persons, one person cannot negligently entrust the vehicle to the other since neither of the co-borrowers has the superior right to control the vehicle. This is true even if one co-borrower is physically able to take the vehicle keys away from the co-borrower who is impaired.(fn13)
A parking lot attendant who returns custody of a vehicle to the drunken owner does not entrust the vehicle since, as a matter of law, the attendant must return the vehicle to the owner.(fn14) However, a sister who regularly uses the family's business vehicle could negligently entrust the car to her irresponsible brother even though she did not own the vehicle, because her regular use of the vehicle could establish her right of control.(fn15)
Whether the entrustor had a right to control the object is determined at the time of the entrustment, not at the time of the harm to the third person. If a shopowner sells a hunting knife to a visibly intoxicated and agitated customer who shortly thereafter kills someone, the shopowner's alleged negligence in entrusting the object occurred at the time of the sale, when the shopowner had control of the object. Where a father with knowledge of his son's bad driving record transfers title of his used vehicle to his son's name, and the son kills someone six months later, the fact that the son now has the title to the vehicle may not prevent the father from being held to have negligently entrusted the car because, at the time of the gift, the father had the right to control the vehicle.(fn16)
Control issues become more complicated in instances where the entrustor, although not the owner of the object, is assumed to have a special right or duty to control the object or the entrustee. Because a parent or guardian is assumed to have the right to control a minor's activities, the fact that the object is owned by a minor does not automatically defeat application of...
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