Chapter 28 - § 28.5 • ELEMENTS DEFINED
| Jurisdiction | Colorado |
§ 28.5.1—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 tricky. A comment to Restatement section 390 provides that "[t]he rule stated applies to anyone who supplies a chattel for the use of another . . . ."24 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."25 Consistent with this, a Colorado federal court concluded that if the defendant did not actually entrust the instrumentality that caused harm to a third party for use, there could be no negligent entrustment claim as a matter of law.26
Regarding the timing of possession, also referred to as control, as noted above 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 of (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.27
Regarding the right of possession or control, the court of appeals 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.28 In light of this limited right of possession, the court of appeals held that parents who stored their adult son's rifle at their home and then returned the rifle to the son at his request could not be held liable for negligent entrustment.29
On the issue of 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 3 90.30 However, gifting money to purchase a car may meet the standard for negligent entrustment.31
There is no Colorado case directly addressing whether granting another person access to a dangerous instrumentality 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 where a minor or other unfit person is likely to find and use it. As described above, in Dickens v. Barnham,32 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."33 Subsequent Colorado case law has suggested,34 and respected commentators have opined,35 that granting access to a dangerous instrumentality is legally equivalent to negligent entrustment of such an instrumentality.
§ 28.5.2—Unfit Entrustee
Restatement § 390 requires that the entrustee "be likely because of his youth, inexperience, or otherwise, to use [the instrumentality/chattel] in a manner involving unreasonable risk of physical harm to himself and others." There is universal agreement by Colorado appellate courts that young children and intoxicated persons, because of their "youth, inexperience, or otherwise," are incompetent to possess either a gun or a car.36 However, the incompetence of other types of entrustees is not as clear. For instance, depending on the circumstances an older child may be competent to possess a gun,37 and a person with a past history of alcoholism may be competent to drive a car.38 Vehicle operators who lack a license or insurance,39 who have a history of bad driving or other criminal conduct,40 or who otherwise have a history of irresponsible behavior41 may or may not be incompetent to drive a vehicle. Of course, for there to be an entrustee who the entrustor knew or had reason to know was unfit, the entrustor must actually entrust someone with possession or use of the instrumentality.42
§ 28.5.3—Know or Have Reason to Know of Entrustee's Incompetence
Restatement § 390 sets a higher standard for finding liability than exists in an ordinary negligence claim, requiring proof that the supplier of the chattel "knows or has reason to know" of the risk. Whereas the standard of "should know" employed in ordinary negligence cases creates a duty to use reasonable diligence to ascertain the existence or non-existence of the fact in question,43 a standard of "reason to know" does not impose a duty to ascertain unknown facts.44 Thus, a car seller who knows a purchaser is a bad driver may be held liable for negligent entrustment, whereas a seller who lacks such knowledge may not.45 Likewise, a gun or ammunition seller who knows a purchaser may use those items to cause harm may be held liable for negligent entrustment, whereas a seller who lacks such knowledge may not.46
§ 28.5.4—Proximate Cause
A negligent act is the legal or proximate cause of an injury when that injury is foreseeable.47 Thus, in negligent entrustment cases, the defendant may be held liable for foreseeable injuries caused by the entrustee.48 This principle applies not only to the entrustee's negligent acts, but also to his or her intentional torts.49 In Ireland v. Jefferson County Sheriff's Department, the U.S. District Court for the District of Colorado, citing Colorado law...
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