32 Negligent Entrustment

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

32 Negligent Entrustment

A. Definition

South Carolina has recognized an action for negligent entrustment for over three decades,¹ but since few appellate cases have discussed it, it is not yet well defined. One source of elucidation is the Restatement (Second) of Torts.² While it is referred to occasionally in this chapter, caution should be used when relying on it because the applicable Restatement sections have not been adopted in South Carolina.³

In South Carolina negligent entrustment is a third-party action, at least under the circumstances where the entrustee drove the entrustor's vehicle while intoxicated. In that situation, an entrustee may not bring the action to recover for his or her own injuries.⁴Additionally, the instrumentality entrusted must be chattel, not real property.⁵

B. Elements

Many of the South Carolina cases of negligent entrustment are based on a driver's alleged impairment from the use of alcohol, and indeed some argue the tort can only be based on situations involving the presence of alcohol.⁶ Under those circumstances, the elements of the action are:

(1) Knowledge of or knowledge imputable to the owner that the driver was either addicted to intoxicants or had the habit of drinking, (2) ... the owner knew or had imputable knowledge that the driver was likely to drive while intoxicated, and (3) under these circumstances, the entrustment of a vehicle by the owner to such a driver.⁷

However, while not specifically labeling the actions as concerning negligent entrustment, South Carolina has acknowledged that giving control of property other than a motor vehicle can be negligent.⁸ A broader statement of the elements is, therefore required, and one is found in a jury charge that states that in a negligent entrustment action the plaintiff must prove:

(1) the entrustee was incompetent, unfit, inexperienced, or reckless;
(2) the entrustor knew, or had reason to know, of the entrustee's condition or proclivities;
(3) there was an entrustment of the dangerous instrumentality;
(4) the entrustment created an appreciable risk of harm to others, including the injury victim, and a relational duty on the part of the entrustor;
(5) the harm to the injury victim was proximately caused by the negligence of the entrustor and the entrustee.⁹

The Court of Appeals has said that ownership or control of a vehicle involved in an injury is a "compulsory element."¹⁰ Neither version of the elements discussed above identifies "ownership or control" as a discrete element, however, it is implicit in both formulations and might be thought to be encompassed within the third element of the five element jury charge.

C. Elements Defined

1. The Entrustee Was Incompetent, Unfit, Inexperienced, or Reckless

The first element is usually met by showing that at the time of the plaintiff's injury the entrustee was intoxicated¹¹ or of a young age and lacking experience.¹² However, it appears that intoxication alone will not be sufficient. In Gadson v. ECO Servs. of S.C., Inc.,¹³ the court refused to adopt Restatement (Second) of Torts §§ 308 and 390 that, said the court, extend liability when a defendant knows or had reason to know that the entrustee is likely because of youth, inexperience, or otherwise, to create an unreasonable risk of physical harm to himself and others. A concurring Justice believed the court should adopt the Restatement and expressed concern that the current formulation of the tort would impose liability where a defendant permitted another to drive an automobile knowing the driver was intoxicated, but where there was no evidence the defendant knew the driver was a habitual drinker or addicted to alcohol. On the other hand, there is some indication that negligent entrustment can only be based on situations involving the presence of alcohol.¹⁴

2. The Entrustor Knew, or Had Reason to Know, of the Entrustee's Condition or Proclivities¹⁵

One early South Carolina Supreme Court decision said in the context of a discussion of bailment, "... a bailor may be liable to [an injured] third person ... where he has entrusted a dangerous article to one whom he knows to be ignorant of its dangerous quality, or an automobile to one whom he knows to be so reckless or incompetent that danger to third persons would be a reasonably probable consequence of his operation of [that vehicle]."¹⁶Where, however, there is no evidence the entrustor knew of the entustee's condition, ignorance, or proclivities,¹⁷ the action fails.¹⁸ Proximity in time of indicia of proclivity to the event resulting in injury is a factor in determining whether the entrustor had reason to know of the proclivities.¹⁹ In the context of driving under the influence, the question is whether the owner knew, or should have known, that the entrustee was likely to drive while intoxicated.²⁰ For example, in Nettles v. Your Ice Co.,²¹ an entrustee was drinking and driving and had an accident in which the plaintiff, a passenger in the same vehicle, was injured. The plaintiff claimed the defendant knew the entrustee "frequently partook of intoxicating liquors to excess" and that the defendant had in fact terminated the entrustee shortly before the accident for being intoxicated during working hours, but had rehired him. The defendant admitted the entrustee had been discharged, but denied any knowledge of his habit of drinking or drinking to excess. The court concluded there was ample evidence for the jury to decide the entrustor "consciously failed to exercise due care for the protection and safety of others." In another case, evidence that one defendant said an air rifle should have been put "in the attic before someone got hurt," was "susceptible of the inference that the [defendants] knew that under the circumstances their son should not have been allowed unsupervised possession of an air rifle."²²

Two motor vehicle statutes²³ make it unlawful to allow unauthorized persons to drive and, thus, could form the basis of a finding of negligence per se.²⁴

3. There Was an Entrustment of the Dangerous Instrumentality

Obviously, for the defendant to entrust something to another, he or she must own or control that thing. In Jones v. Enterprise Leasing Co. Southeast,²⁵ the court characterized "ownership and control" as an "essential element" of negligent entrustment. In Enterprise Leasing the defendant's wholly owned subsidiary leased a car to a driver who was responsible for an accident that injured the plaintiff. The court found that the lower court properly granted summary judgment to the defendant after finding there was no genuine issue of material fact that the defendant owned or controlled the leased vehicle. The appellate court noted that the vehicle was titled to the subsidiary, the rental agreement was between only the subsidiary and the lessee, the vehicle was picked up from a location of the subsidiary, and the defendant presented uncontroverted affidavits indicating it exercised no control over the use or entrustment of the vehicles of any of its subsidiaries.

"Entrustment" has been described as supplying "directly or through a third person a chattel for the use of another."²⁶ The Restatement uses the phrase "to permit a third person to use a thing."²⁷ But, what does it mean to "supply" or "permit"? Commentary to the Restatement suggests it means "consent" or "placing within reach."²⁸ Does that mean that "placing within reach" constitutes implied consent, or does it mean that consent is only one form of "permission"? The cases provide little clarification, and the concept of "entrustment" remains vague.

One evident form of entrustment is "allowing access" to the instrumentality. In two early cases, an entrustee was left alone in a vehicle with the keys in the ignition. In both cases — one concerning an intoxicated taxi cab patron as entrustee²⁹ and the other an underage helper of a delivery truck driver³⁰ — the entrustor was found liable. Neither opinion used the word entrustment, but both have been identified as "summarizing the law of negligent entrustment in South Carolina."³¹ Thus, leaving keys in a vehicle occupied by a person who should not drive evidently constitutes "entrustment." However, leaving keys in a vehicle that is then stolen is apparently not entrustment.³² In the context of the meaning of "entrustment," the distinction is a bit murky.³³

A case that arguably further confuses the issue is Dennis v. Timmons,³⁴ where the defendants left a screwdriver under their mobile home. It was retrieved the next day by one of their children and thrown by a visiting 13-year-old boy at another boy who was seriously injured. The court said the defendants "... did not entrust the screwdriver, negligently or otherwise, to a person who, on account of his youth and want of experience, was incapable of evaluating the dangers incident to its use."³⁵ Arguably the defendants "placed the screwdriver within reach," and yet the court seems to suggest they did not entrust it to the perpetrator. Or maybe not. The court also said the screwdriver was not a "dangerous instrumentality," that it was not entrusted to "a person who, on account of his youth and want of experience, was incapable of evaluating the dangers incident to its use" (the first element), and that when a defendant negligently allows access to — rather that "furnishes" — the instrumentality "... to a child, the standard for imposing liability upon the person is whether the person knew of the child's proclivity or propensity for the specific dangerous activity which caused the harm"³⁶ (the second element). So, did the plaintiff's case fail because the first, second, or third element was not proven? Or did the plaintiff fail on all three? And, when the court distinguished between "furnishing" and "allowing access," did it intend to suggest these are two different types of entrustment, or that the latter is not entrustment at all? Since the court previously appeared to decide there was no entrustment at all, it...