Negligent Entrustment of Guns and Other Dangerous Instrumentalities
| Publication year | 2018 |
| Pages | 46 |
TORT AND INSURANCE LAW
By ANTHONY VIORST.
This article discusses the tort of negligent entrustment, including elements of the claim and relevant defenses, as it relates to damages caused by guns and other dangerous instrumentalities.
The misuse of guns is a topic that appears in the news media on an almost-daily basis. Clearly an individual who misuses a gun or other dangerous instrumentality is subject to potential civil liability for such misconduct. In addition, if the individual or entrustee obtained the instrumentality from a third party or entrustor, that entrustor is also subject to potential civil liability under the doctrine of negligent entrustment. This doctrine is based on the principle that a person should not entrust a dangerous instrumentality to an unfit individual who may use it in a manner involving an unreasonable risk of harm to that individual or others. The “crux of the negligence is the knowledge of the entrust or of the youth, inexperience, known propensity for reckless and irresponsible behavior, or other quality of the entrustee, indicating the possibility that the entrustee will cause injury.”[1] If the supplier of a dangerous instrumentality permits its use by a person that the supplier knows, or has reason to know, is unfit to have control over it, the supplier will be held accountable for all causally related injuries to others.
Defining Negligent Entrustment
The elements of a claim of negligent entrustment are set forth in sections 308 and 390 of the Restatement (Second) of Torts[2] (hereinafter “Restatement”):
Section 308
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
Section 390
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Comment b to section 390 describes this rule as a special application of the rule stated in section 308.
Evolution of the Tort in Colorado
Before formally recognizing the tort of negligent entrustment, Colorado appellate courts and their federal counterparts informally acknowledged the viability of such a claim. For example, in the 1920 case Dickens v. Barnham,[3] plaintiff Barnham was injured by a bullet discharged from a rife fired by Lloyd Dickens, an 8-year-old boy. Lloyd’s father, William Dickens, was found liable for Barnham’s injuries, because he had taken no steps to make the gun inaccessible to the children in the home. Upholding this judgment, the Colorado Supreme Court noted that “[a] father may be liable on the ground that his own act in permitting the child to have access to some instrumentality potent for mischief is, in view of the child’s want of capacity properly to manage it, the proximate cause of the injury.”[4] Thereafter, in the 1979 case Douglass v. Hartford Insurance Co.,[5] the Tenth Circuit upheld the federal district court’s determination that the Colorado appellate courts would recognize the tort of negligent entrustment. Noting that “[n]egligent entrustment is a common law tort, recognized in virtually every state,”[6] and that the Dickens case concerned a claim equivalent to negligent entrustment, the Tenth Circuit had “no problem holding Colorado would recognize a complaint based on negligent entrustment . . . .”[7]
In 1983, in Hasegawa v. Day,[8] the Colorado Court of Appeals “expressly adopt[ed] negligent entrustment as a theory of liability in this state.”[9] Finally, in 1992, in Casebolt v. Cowan,[10] the Colorado Supreme Court expressed a formal position regarding the tort of negligent entrustment, “confirm[ing] that the doctrine of negligent entrustment is part of the law of negligence in this state.”[11] In reaching this conclusion, the Supreme Court stated further that “[s]ection 308 of the Restatement provides guidance for our use in determining the applicability and scope of the doctrine,” and that “section 390 provides a basis for resolving the issues of duty.”[12]
Elements of a Negligent Entrustment Claim
The doctrine of negligent entrustment is part of the general law governing liability for negligence.[13] To prevail on a basic negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty, that the defendant breached that duty, and that the defendant thereby proximately caused injury to the plaintiff.[14] Whether the defendant owes a plaintiff a duty is a question of law to be determined by the trial court,[15] while the determination of whether a duty has been breached is generally a fact question for the jury. The doctrine of negligent entrustment gives trial courts a framework to resolve the duty issue and provides juries with criteria to assess whether that duty has been breached.[16] Because both sections 308 and 390 require proof that the defendant’s conduct created an “unreasonable” risk to the plaintiff, these determinations can sometimes be difficult.[17]
As discussed above, in Casebolt the Colorado Supreme Court held that both sections 308 and 390 were instructive in evaluating negligent entrustment claims. However, as quoted above, these sections differ in one significant respect: while section 308 requires proof that the supplier of the chattel “knows or should know” that the user is likely to use the thing in a manner creating an unreasonable risk of harm, section 390 sets a higher standard for a finding of liability, requiring proof that the supplier of the chattel “knows or has reason to know” of the risk. A standard of “should know” creates a duty to use reasonable diligence to ascertain the existence or non-existence of the fact in question, whereas a standard of “reason to know” does not impose any obligation to ascertain unknown facts.[18] Although post-Casebolt case law is not completely uniform, the Colorado appellate courts and their federal counterparts have generally applied section 390, rather than section 308, to claims of negligent entrustment.[19]
The elements of a claim under Restatement section 390 are:
1. entrustment of a chattel,
2. to an unfit entrustee,
3. with knowledge or reason to know of the entrustee’s unfitness,
4. proximate cause, and
5. damages.[20]
Although no particular chattel need be supplied, the vast majority of cases concerning claims of negligent entrustment have involved either motor vehicles or guns.
Entrustment of a Chattel
Even when the facts are undisputed, determining whether a defendant has entrusted or supplied another person with a chattel can be a tricky question. Comment a to section 390 provides that “[t]he rule stated applies to anyone who supplies a chattel for the use of another . . . .” The Colorado Supreme Court has interpreted this comment to refer only to “persons having possession or right of possession of a chattel at the time of entrustment and who directly supply the chattel to the user.”[21]
Regarding the timing of possession or control, the Casebolt Court held that a party asserting a claim of negligent entrustment need not show that the entrustor had the right and ability to exercise control of the instrumentality at the time of the entrustee’s negligent act. Rather, if the entrustor had possession or control over the instrumentality at the initial point of entrustment, that person may be found liable for negligent entrustment, regardless of whether he or she had the ability to exercise control thereafter.[22]
As to the right of possession or control, the Court of Appeals has held that a bailee, who holds property in trust for a bailor until the bailor reclaims that property, has only a restricted right of possession or control, which is subject to the rights of the bailor.[23] In light of this limited right of possession, the Court of Appeals has held that parents who stored their adult son’s rife at their home, and then returned the rife to the son at his request, could not be held liable for negligent entrustment.[24]
On whether the entrustor has “directly supplied” the instrumentality to the entrustee, Colorado appellate courts have concluded that lending an unfit person money or credit to buy a car does not constitute entrustment or supply of a chattel, and thus does not come within the ambit of section 390.[25] However, gifting money to purchase a car may meet the standard for negligent entrustment.[26]
There is no Colorado case directly addressing whether granting another person access to a dangerous instrumentality, such as a gun, is equivalent to “entrusting” that person with the instrumentality. However, several cases have implied that liability will attach when the defendant negligently leaves a dangerous instrumentality at a place where a minor or other unfit person is likely to find and use it. As discussed above, in Dickens the Colorado Supreme Court did not use the term “negligent entrustment,” but did state that “[a] father may be liable on the ground that his own act in permitting the child to have access to some instrumentality potent for mischief is, in view of the child’s want of capacity properly to manage it, the proximate cause of the injury.”[27]Subsequent Colorado case law has suggested,[28] and respected commentators have opined,[29] that granting access to a dangerous instrumentality, such as a gun, is legally equivalent to...
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