One of the first things any plaintiff should explore in a negligence action for damages is all potential avenues of recovery against all possible liable parties. Utility service providers are no exception when considering a lawsuit to redress damages to their facilities. Analysis should include those tortfeasors who may be directly liable, as well as those more on the periphery but nonetheless culpable. One potentially overlooked avenue is pursuing an owner of an instrumentality under the theory of negligent entrustment.
What is negligent entrustment?
Negligent entrustment is generally a civil concept defined as a tort that arises when a person is found liable for negligence of another because he or she entrusted that person with a dangerous instrumentality that, when used in a negligent manner, caused injury to a third party. Black’s Law Dictionary defines it as "the act of leaving a dangerous article (such as a gun or car) with a person who the lender knows, or should know, is likely to use it in an unreasonably risky manner."1
To illustrate, if an individual operates a vehicle in a reckless, careless or negligent manner, and that vehicle strikes a utility's service line and causes damages, the utility will certainly have a cause of action to maintain against the operator under general negligence principles. But what if that individual has no insurance coverage or is not collectable? Are there other means for recovery?
Under the initial set of facts, it's unclear. What if the vehicle involved in the accident was not owned by the operator, but rather was owned by a friend? Under certain limited circumstances, the facts may allow the utility to pursue the friend, in addition to the operator, under the concept of negligent entrustment.
When regarded as a statute
Some jurisdictions, like Ohio, have codified the negligent entrustment doctrine in a statute that forms the basis for both civil liability and criminal culpability. ORC §4511.203 prohibits a person from permitting a motor vehicle that he or she owns to be driven by another if that person knows or reasonably should know that the:
- Other person does not have a valid license to operate
- Other person's operator's license has been suspended or revoked
- Operator's driving of the vehicle would violate Ohio's Financial Responsibility law, including failure to maintain minimum insurance coverage
- Other person is operating the vehicle under the influence of alcohol or drugs
- Vehicle is the subject of an ORC §4503.235 immobilization waiver order, and allowing the other person to operate the vehicle would violate the order
So, if the owner of a vehicle discovers that the friend to whom he lends his vehicle has no valid driver's license, the owner is then considered to be "knowingly permitting" his vehicle to be driven by one who "has no legal right to drive."2 Further, ORC §4511.203(C) is a statute that provides criminal culpability. A violation is a misdemeanor.
When regarded as a civil matter
Other jurisdictions, like Kentucky, recognize negligent entrustment as a civil matter under the common law.3 Under common law, "one who entrusts his vehicle to another whom he knows to be inexperienced, careless, or reckless, or given to excessive use of intoxicating liquor while driving, is liable for the natural and probable consequences of entrustment."4 Similarly, common law jurisdictions like Kentucky generally recognize a negligent entrustment cause when one individual permits someone else to operate his vehicle with the knowledge that that person is unlicensed, has a suspended license or is under the influence of drugs or alcohol, or the owner does not maintain the minimum insurance coverage for the vehicle.
The key factor: knowledge by the owner
What is apparent from both of these approaches is that the key element the utility must prove in any case of negligent entrustment is knowledge by the owner. Specifically, the utility must prove that the owner of the vehicle knew or reasonably should have known that the entrustment was in violation of one of these principles.
In Ohio, a sufficient defense to negligent entrustment is a vehicle operator telling the vehicle owner that he had a valid license — and there is evidence that the owner had no knowledge that such a claim was untrue or inaccurate.5 Knowledge can be proved in a variety of ways, but if one cannot prove specific knowledge, proof of authorization for use of the vehicle is enough.6 Moreover, proof of pattern of conduct or prior conduct may be introduced to establish that the owner either knew or should have known that it would be foreseeable that the operator would use the vehicle in a manner violating ORC §4511.203.7
Under Kentucky's common law approach, these same basic principles exist. Liability is not created merely because of the entrustment. There must be proof that the operator was incompetent and the owner had knowledge of the same.8 Foreseeability is a critical consideration. If the vehicle was left unlocked with the keys inside on public property, and it was foreseeable that the vehicle could be taken by another who would negligently operate the same, liability may be found.9 Additionally, while it may be self-explanatory, the alleged owner must actually own the vehicle in order to meet the definition of negligent entrustment.10
What about when an operator entrusts the vehicle to a second person (a "sub-permittee") who violates the doctrine? Under Kentucky's common law, the owner is generally not liable when the person to whom the owner initially entrusts the vehicle makes a subsequent entrustment without the owner's knowledge.11 Yet, if the owner knew or should have known at the time of the initial entrustment that a subsequent entrustment would be made, and that the subsequent driver was incompetent, reckless, inexperienced, etc., then liability could potentially attach.12
A fact-intensive determination that ultimately rests with a jury
Finally, it must be stressed that even where a violation of the statute is found defining and prohibiting negligent entrustment, civil liability is not assured.13
What is clear is that there is an avenue for a utility to pursue an owner of an instrumentality under the negligent entrustment doctrine. Proving the owner's authorization and knowledge of the potential or foreseeability of reckless conduct is generally a fact-intensive determination that ultimately rests with a jury. Any utility that is confronted with these facts should always review them with counsel to see if the negligent entrustment option can be used to resolve the damage claim.
1 Black's Law Dictionary 1063 (8th ed. 1999).
2 State v. Hickey, 1994 Ohio App. LEXIS 4376 (Ohio Ct. App., Union County Sept. 21 1994).
3 Owensboro Undertaking & Livery Ass'n v. Henderson, 115 S.W.2d 563 (Ky. 1938).
4 McGrew v. Stone, 998 S.W.2d 5, 9 (Ky. 1999) (Cooper, J., dissenting) referencing Brady v. B. &B. Ice Co., 45 S.W.2d 1051 (Ky. 1932); Owensboro Undertaking & Livery Ass'n v. Henderson, supra.
5 Cincinnati v. Christy, 7 Ohio App.2d 46, 219 N.E.2d 45, 1966 Ohio App. LEXIS 414 (Ohio Ct. App., Hamilton County 1966).
6 State v. Miller, 5 Ohio Misc. 122, 211 N.E.2d 102, 196 Ohio Misc. LEXIS 287 (Ohio Mun. Ct. 1965).
7 State v. Finfrock, 2011 Ohio 3862, 196 Ohio App.3d 249, 963 N.E.2d 177 (Ohio Ct. App, Montgomery County 2011) (A conviction under the statute was supported by sufficient evidence where a mother knew that her son had driven her car illegally on several past occasions. Despite knowing the danger his driving could pose, she left her keys on the table where he could easily obtain them and operate the vehicle.); see also State v. Stokes, 2016-Ohio-612, 2016 Ohio App. LEXIS 691 (Ohio Ct. App., Champaign County Feb. 19, 2016).
8 McGrew, 998 S.W.2d at 9 (Cooper, J., dissenting) citing Knoles v. Salazar, 766 S.W.2d 613 (Ark. 1989).
9 Bruck v. Thompson, 131 S.W.3d 764 (Ky. App. 2004); KRS 189.430(3).
10 Burchett v. Burchett, 2016 Ky. App. LEXIS 79, *5-6 (Rendered May 13, 2006), unpublished (holding "Logically, one cannot maintain a negligent entrustment suit against the former owner of a vehicle who properly transferred ownership of the subject vehicle."); see also Graham v. Rogers, 277 S.W.3d 251 (Ky. App. 2008).
11 McGrew, 998 S.W.2d at 9 (Cooper, J., dissenting).
12 Id.
13 This is "negligence per se," which provides that if a person violates a statute, the duty and the breach of that duty are presumed as a matter of law. See Mount Nebo Baptist Church v. Cleveland Crafts Co., 154 Ohio St. 185, 93 N.E.2d 668 (1950); see also Gulla v. Straus, 154 Ohio St. 193, 93 N.E.2d 662, 1950 Ohio LEXIS 404 (Ohio 1950) (A violation of ORC §4511.203(A)(1) will not in-and-of-itself cause the owner to be liable for injury caused by the authorized non-licensed operator where the facts showed that failure to obtain such a license was not the proximate cause of the injury).
