Chapter 28 - § 28.3 • COLORADO COURTS' RECOGNITION OF NEGLIGENT ENTRUSTMENT

• Jurisdiction: Colorado

§ 28.3 • COLORADO COURTS' RECOGNITION OF NEGLIGENT ENTRUSTMENT

Prior to their formal recognition of the tort of negligent entrustment, Colorado's appellate courts and their federal counterparts informally acknowledged the viability of such a claim. For example, in Dickens v. Barnham,³ a 1920 case, plaintiff Barnham was injured by a bullet discharged from a rifle fired by Lloyd Dickens, an eight-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 Douglass v. Hartford Ins. Co.,⁵ a 1979 case, the Tenth Circuit upheld the federal district court's determination that 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 However, Hasegawa and another case that followed it, Hilberg By and Through Hilberg v. F.W. Woolworth Co.,¹⁰ held that for the entrustor to be liable for negligent entrustment, the injured plaintiff must prove that, after entrustment, the entrustor had the ability to control the entrustee or the entrustee's use of the chattel at the time the entrustee's negligence resulted in injury.¹¹ In 1992, in Casebolt v. Cowan,¹² the Colorado Supreme Court confirmed that "the doctrine of negligent entrustment is part of the law of negligence in this state."¹³ The supreme court further stated that "[s]ection 308 of the Restatement provides guidance for our use in determining the applicability and scope of the doctrine," and that "[Restatement] section 390 provides a basis for resolving the issues of duty."¹⁴ In addition, the supreme court overruled Hasegawa and Hilberg in part, holding that an entrustor's ability to control the entrustee or the entrustee's use of the...