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The California Law of Tort of Negligent Entrustment

California

,

United States of America

Issue

What are the elements of the tort of negligent entrustment?

Conclusion

Under California law, the general basis for liability for the tort of negligent entrustment is the act of entrusting a potentially dangerous instrumentality to one who is likely to misuse it. This applies when an actor permits another person to use a thing or to engage in an activity under the control of the actor when the actor knows or should have known that the person intends or is likely to use the thing or to conduct himself in such a manner as to create an unreasonable risk of harm. (A. B. v. OGara Coach Company, Jacoves v. United Merchandising Corp.)

It is ordinarily a question of fact for the jury to determine whether the person who entrusted the instrumentality to another exercised the required degree of care. (LIRANZO v. LIRANZO)

In order to impose liability for negligent entrustment, the plaintiff must establish that the injury complained of was proximately caused by the entrusted person's disqualification, incompetence, inexperience, or recklessness. (LIRANZO v. LIRANZO, McKenna v. Beesley)

The tort of negligent entrustment can arise in various factual scenarios, including the negligent entrustment of a motor vehicle. The specific elements of the tort of negligent entrustment of a motor vehicle are: (1) the driver was negligent in operating the vehicle; (2) the defendant owned or had possession of, with the owner's permission, the vehicle operated by the driver; (3) the defendant knew or should have known that the driver was incompetent or unfit to drive; (4) the defendant permitted the driver to drive the vehicle; and, (5) the driver's incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (McKenna v. Beesley)

Law

The California Court of Appeal for the Second District succinctly set out the principles of the tort of negligent entrustment in the unpublished decision of A. B. v. OGara Coach Company, B163409 (Cal. Ct. App. Oct. 14, 2003):

"Liability for negligent entrustment amounts to a determination whether a duty exists to anticipate and guard against the negligence of others." (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.) Under the Restatement, the general basis for liability for negligent entrustment is "the act of entrusting a potentially dangerous instrumentality to one who is likely to misuse it." (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 339 [citing Rest.2d Torts, § 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." (Rest.2d Torts, § 308.) "Under the control of the actor" here means that the entrustee may use the entrusted instrumentality only with the entrustor's consent. (Rest.2d, supra, com. a, p. 100.)

In Jacoves v. United Merchandising Corp., 9 Cal.App.4th 88 (Cal. Ct. App. 1992), the Court of Appeal for the Second District noted that under California law, a person will be liable for injuries arising out of the negligent entrustment of a dangerous instrumentality to a person who the supplier knows, or has reason to know, is a danger to themself or others (at 116):

We are aware of no California cases which have specifically addressed the issue of whether a seller of a firearm to a person whom the seller knows, or has reason to know, is a danger to himself or herself, or others, is liable for injuries caused by the person to whom the firearm was sold. However, the law in California is clear that one is liable for injuries arising out of the negligent entrustment of a dangerous instrumentality to a person who the supplier knows, or has reason to know, is a danger to himself or herself, or others. For example, the supplier of an automobile, who entrusts the automobile to a known reckless driver, can be held liable for injuries to third persons. (Allen, supra, 109 Cal.App.3d at p. 422, 167 Cal.Rptr. 270.) The supplier of a car to a known epileptic may be held liable for negligent entrustment. (Talbott, supra, 199 Cal.App.3d 700, 703, fn. 4, 245 Cal.Rptr. 136.) One who leaves a firearm where a minor might foreseeably gain access to it may be liable for negligence. (See, e.g., Reida, supra, 18 Cal.App.3d at pp. 704-705, 96 Cal.Rptr. 102.)

In McKenna v. Beesley, 67 Cal.App.5th 552, 282 Cal.Rptr.3d 431 (Cal. App. 2021), the California Court of Appeal for the Fourth District explained that the tort of negligent entrustment can arise in various factual scenarios, including the negligent entrustment of a vehicle. The elements of the tort of negligent entrustment of a motor vehicle are: (1) the driver was negligent in operating the vehicle; (2) the defendant owned or had possession of, with the owner's permission, the vehicle operated by the driver; (3) the defendant knew or should have known that the driver was incompetent or unfit to drive; (4) the defendant permitted the driver to drive the vehicle; and, (5) the driver's incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff (at 565-566):

California is one of several states [that] recognizes the liability of an automobile owner who has entrusted a car to an incompetent, reckless, or inexperienced driver" (italics omitted) through the tort of negligent entrustment. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 420, 167 Cal.Rptr. 270.)

In Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 559, 252 Cal.Rptr.3d 887, the court outlined the tort of negligent entrustment, where the object entrusted is a motor vehicle:

"Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. [Citation.] In cases involving negligent entrustment of a vehicle, liability ‘ "is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver." ’ [Citations.] ‘ "Liability for the negligence of

[282 Cal.Rptr.3d 441]

the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner." ’ [Citation.]; accord, Rest.2nd Torts, § 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’].)"

CACI No. 724 outlines the elements of the tort of negligent entrustment of a motor vehicle:

[67 Cal.App.5th 566]

"1. That [name of driver ] was negligent in operating the vehicle;

"2. That [name of defendant ] [owned the vehicle operated by [name of driver ]/had possession of the vehicle operated by [name of driver ] with the owner's permission];

"3. That [name of defendant ] knew, or should have known, that [name of driver ] was incompetent or unfit to drive the vehicle;

"4. That [name of defendant ] permitted [name of driver ] to drive the vehicle; and

"5. That [name of driver ]'s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff ]."15

In the unpublished case of LIRANZO v. LIRANZO, 2006 Cal. App. Unpub. LEXIS 1863, 2006 WL 537873 (Cal. App. 1st Dist. March 6, 2006), the California Court of Appeal for the First District explained that liability for the tort of negligent entrustment may be imposed if the plaintiff can establish that the injury complained of was proximately caused by the entrusted person's disqualification, incompetence, inexperience, or recklessness. It is ordinarily a question of fact for the jury to determine whether the person who entrusted the instrumentality to another exercised the required degree of care (at 24-25):

Michael's claim of negligent entrustment was premised on the allegation that Randall "was incompetent to handle any firearm whatsoever, in that he had no firearms training, had been arrested and/or convicted of weapons charges, was irresponsible in the conduct of his personal business, and was otherwise of a temperament unsuitable for the possession of or safe handling of firearms." The tort of negligent entrustment arises if the owner or possessor of a dangerous [*25] instrumentality entrusts it to another while knowing, or having reason to know, that the entrustee is unfit or incompetent to use it (e.g., Allen v. Toledo (1980) 109 Cal. App. 3d 415, 419, 167 Cal. Rptr. 270) or that the entrustee is " 'likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself [or] others.' " (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 115, quoting Prosser, Law of Torts (4th ed.) § 33, p. 199.) As amici curiae point out, there is no requirement of a special relationship for this duty to arise. Liability may be imposed upon any entruster " 'provided the plaintiff can establish that the injury complained of was proximately caused by the [entrustee's] disqualification, incompetency, inexperience or recklessness . . . .' " (Syah v. Johnson (1966) 247 Cal. App. 2d 534, 539, 55 Cal. Rptr. 741, disapproved on other grounds by Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 869-870.) " 'Ordinarily it is for the jury to determine whether the owner [or other entruster] has exercised the required [*26] degree of care.' [Citation.]" (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 920.)

The Court noted that excessive or regular intoxication is potentially relevant to a claim of negligent entrustment because a jury could conclude that a person who entrusts a firearm to another whose judgment in the use of firearms is regularly and predictably impaired by alcohol or drugs has acted negligently. However, if a plaintiff in a negligent entrustment action alleges that a person was incompetent to possess a gun due to regular drug or alcohol consumption, they are required to present evidence that the person was under the influence at the time of the shooting (at 32-34):

Michael contends that he was prepared to prove Andrew's awareness that Randall was receiving Social Security benefits premised on a drug or alcohol-induced disability and had been treated unsuccessfully at an alcohol rehabilitation facility at some point in the past. Excessive or regular intoxication is potentially relevant to a claim of negligent entrustment, since a jury could conclude that a person who entrusts a firearm to another whose judgment in the use of firearms is regularly and predictably impaired by alcohol or drugs has acted negligently. This [*33] is particularly true if the intoxication has been connected with reckless use of firearms in the past, such as Randall's discharge of a gun inside his father's house. However, in a negligent entrustment case liability may be imposed only if "the injury complained of was proximately caused by the [entrustee's] disqualification, incompetency, inexperience or recklessness . . . ." (Syah v. Johnson, supra, 247 Cal. App. 2d at p. 539.) Accordingly, if Michael contended that Randall was incompetent to possess a gun due to regular drug or alcohol consumption, Michael was required to present evidence that Randall was under the influence at the time of the shooting. In the absence of such evidence, Michael would not have established the necessary causal connection between the alleged incompetence and his injury. Yet Michael's attorney conceded in the trial court that he had no evidence that Randall was under the influence at the time of the shooting. This was, in effect, a concession that Michael could not prove a claim of negligent entrustment based on Randall's drug or alcohol consumption. Given this concession, the trial court did not abuse its discretion in concluding [*34] that evidence of Randall's drug or alcohol consumption was not relevant to the claims to be tried, particularly given the potential for prejudice caused by such evidence.

In Todd v. Dow, 23 Cal.Rptr.2d 490, 19 Cal.App.4th 253 (Cal. App. 1993), the California Court of Appeal for the Second District held that the parents were not liable under a theory of negligent entrustment where they allowed their adult son to retrieve a rifle that he was storing at their house. The Court clarified that someone who stores articles as a personal favor does not entrust the article when returning it to the person who stored it with them (at 260-261):

The seventh cause of action for negligent entrustment fails for the same reason. Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties. (Mettelka v. Superior Court (1985) 173 Cal.App.3d 1245, 1248, 219 Cal.Rptr. 697.)

Parents did not sell, loan, furnish, or supply the rifle. They merely allowed Dennis to store the rifle at their house. "Involuntary bailments and storage of articles as a personal favor are obviously gratuitous, [19 Cal.App.4th 261] and the responsibility of a gratuitous bailee is to use only slight care. [Citations.]" (4 Witkin, Summary of Cal. Law (9th ed. 1987) Personal Property, § 136, p. 125; Civ. Code, § 1884.)

As bailees, parents were required to deliver the property to Dennis on demand. (Civ. Code, § 1822.) Their duties terminated the day before the shooting when Dennis took possession of the rifle. (Civ. Code, § 1847, subd. (1).) Simply stated, there was no entrustment.

"A bailee does not 'entrust' a chattel when returning it to the bailor. Indeed, the Restatement describes those who may be liable for supplying dangerous chattels to incompetents as 'sellers, lessors, donors or lenders, and [ ] all kinds of bailors, irrespective of whether the bailment is gratuitous or for a consideration.' (Rest.2d Torts, § 390, com. a, at p. 315, italics added.) Conspicuously absent from the list, of course, are bailees. [Citation.]" (Knighten v. Sam's Parking Valet (1988) 206 Cal.App.3d 69, 75, 253 Cal.Rptr. 365.)

Appellant has cited no authority for the proposition that parents had a duty to hide the rifle. Dennis owned the rifle and could have stored it anywhere. The causal connection between the "bailment" and harm suffered is too tenuous to state a claim for negligent entrustment.

Alexsei publishing date:
2022-03-24 16:41:06.253075
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