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Lydia v. Horton10/30/2000
v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), our Supreme Court adopted a modified version of comparative negligence. Under this system, for all causes of action arising on or after July 1, 1991, a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant. Davenport v. Cotton Hope Plantation Horizontal Property Regime, 333 S.C. 71, 508 S.E.2d 565 (1998); Nelson, supra. Nelson made clear that a plaintiff's contributory negligence would no longer bar recovery unless such negligence exceeded that of the defendant.
We agree that a cause of action for negligent entrustment in the instant case by the intoxicated entrustee may be difficult in its application. See Blake v. Moore, 208 Cal. Rptr. 703 (Cal. Ct. App. 1984); Gorday v. Faris, 523 So. 2d 1215 (Fla. Dist. Ct. App. 1988); King v. Petefish, 541 N.E.2d 847 (Ill. App. Ct. 1989). The voluntarily intoxicated driver will have difficulty excusing his own negligent actions sufficiently to collect against the owner. However, in the case sub judice, no facts have been developed beyond the pleading verbiage.
Lydia admits in his complaint that he was intoxicated and incompetent to drive the vehicle. Concomitantly, factual conflicts remain in regard to: (1) the degree of Lydia's intoxication and incompetence; and (2) the extent of Horton's knowledge of Lydia's intoxication.
Creech v. South Carolina Wildlife and Marine Resources Dep't, 328 S.C. 24, 491 S.E.2d 571 (1997), illuminates regarding the comparative negligence issue:
Comparison of a plaintiff's negligence with that of the defendant is a question of fact for the jury to decide. See, e.g., Ott v. Pittman, 320 S.C. 72, 80, 463 S.E.2d 101, 106 (Ct. App. 1995)(citing trial judge's statement that "because this was a comparative negligence case, even if the plaintiff's testimony amounted to an admission of negligence, it was a question of fact for the jury to compare the plaintiff's negligence [with that of the defendant]."); cf. Gruber v. Santee Frozen Foods, Inc., 309 S.C. 13, 21, 419 S.E.2d 795, 800 (Ct. App. 1992)("Generally, contributory negligence is a question for determination by the jury. But when the evidence admits only one reasonable inference, it becomes a matter of law for the determination of the court."), cert. denied, 1993. A directed verdict is warranted only if the only reasonable inference that may be drawn from the evidence is that the plaintiff's negligence exceeded fifty percent. Creech, 328 S.C. at 33, 491 S.E.2d at 575 (emphasis added).
CONCLUSION
We rule an entrustee may bring a first party cause of action for negligent entrustment against the entrustor of the vehicle or other chattel. We adopt the Restatement (Second) of Torts § 390 rule as the proper standard in South Carolina for negligent entrustment. We conclude this case was decided prematurely in view of the existence of the comparative negligence rule in South Carolina. The liability for negligent entrustment under a first party cause of action involves a comparison of a plaintiff's negligence with that of the defendant. The fact finder is to compare the defendant's fault in entrusting his car to the plaintiff knowing the plaintiff's intoxication and impairment, and the fault of the plaintiff in drinking and then driving. Accordingly, we reverse the Circuit Court's order granting Horton's motion for judgment on the pleadings and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
GOOLSBY and HUFF, JJ., concur.
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