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Lydia v. Horton10/30/2000
on account of his youth and want of experience, was incapable of evaluating the dangers incident to its use." Id. at 341, 437 S.E.2d at 140-41 (emphasis added). These cases are illustrative of the Court applying the underlying theory of negligent entrustment in a situation other than an intoxicated driver.
II. Restatement (Second) of Torts §§ 308 and 390
The Restatement (Second) of Torts § 308 (1965), reads:
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.
According to comment b to Restatement (Second) of Torts § 390 (1965), the "rule stated in [§ 390] is a special application of the rule stated in § 308." Section 390 provides:
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Cases such as Howell v. Hairston, 261 S.C. 292, 199 S.E.2d 766 (1973), and Dennis by Evans v. Timmons, 313 S.C. 338, 437 S.E.2d 138 (Ct. App. 1993), are grounded upon the same premise: an item may be used by someone who is, "on account of his youth and want of experience, . . . incapable of evaluating the dangers incident to its use." Dennis by Evans, 313 S.C. at 341, 437 S.E.2d at 140-41. South Carolina has never predicated its decisions on the Restatement (Second) of Torts § 390. However, we have consistently recognized the common law tort of negligent entrustment. See Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797 (1939).
Other jurisdictions have relied upon § 390 of the Restatement (Second) of Torts as the basis for their negligent entrustment cause of action. See Keller v. Kiedinger, 389 So. 2d 129 (Ala. 1980)(adopting § 390 of the Restatement allowing for a first party cause of action by bailee against bailor for negligent entrustment, but permitting contributory negligence to be a defense); Joseph v. Dickerson, 754 So. 2d 912 (La. 2000)(court, citing § 390, established duty on part of lending car owner to not entrust her car to another, when owner knows or has reason to know borrower is likely to use car in manner involving an unreasonable risk of physical harm, because of borrower's youth, inexperience, intoxication, incompetence, or otherwise); Sharp v. Odom, 743 So. 2d 425, 430 (Miss. Ct. App. 1999)(holding " here is no prior precedent in Mississippi to establish a negligent entrustment of a firearm cause of action. However, Mississippi follows the general rule provided by the Restatement (Second) of Torts § 390 in cases that involve an owner of a vehicle negligently entrusting the vehicle to another."); Splawnik v. DiCaprio, 540 N.Y.S.2d 615 (N.Y. App. Div. 1989)(court found plaintiff's action was premised upon § 390 and ruled tort of negligent entrustment was based on degree of knowledge supplier had or should have had concerning entrustee's propensity to use chattel in improper or dangerous fashion; supplier had duty to withhold chattel which may be used in dangerous fashion from party whom he knows or should know will have propensity to use it in such fashion); Meachum v. Faw, 436 S.E.2d 141 (N.C. Ct. App. 1993)(adopting Restatement (Second) of Torts § 390 to allow first party cause of action brought by bail
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