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Lydia v. Horton10/30/2000
igent entrustment embraces a legally incompetent individual entrusted with an automobile who thereafter is involved in an accident.
Additionally, comment c to § 390 reads:
The rule stated in this Section sets out the conditions under which a supplier of a chattel is subject to liability. As always this phrase denotes that a supplier is liable if, but only if, his conduct is the legal cause of the bodily harm complained of and if the person suffering the harm is not subject to any defense such as contributory negligence, which will prevent him from recovering damages therefor. One who accepts and uses a chattel knowing that he is incompetent to use it safely or who associates himself in the use of a chattel by one whom he knows to be so incompetent, or one who is himself careless in the use of the chattel after receiving it, is usually in such contributory fault as to bar recovery. If, however, the person to whom the chattel is supplied is one of a class which is legally recognized as so incompetent as to prevent them from being responsible for their actions, the supplier may be liable for harm suffered by him, as when a loaded gun is entrusted to a child of tender years. So too, if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a normal sober adult, the supplier may be liable for harm sustained by the incompetent although such person deals with it in a way which may render him liable to third persons who are also injured.
This comment shows the drafters' belief that a first party cause of action could be maintained, but understood that it would be limited by the prevailing negligence theory in the specific jurisdiction.
IV. Other Jurisdictions Recognizing First Party Cause of Action
Jurisdictions around the country have held a first party cause of action can be brought for negligent entrustment. These jurisdictions rely in some manner upon the Restatement (Second) of Torts § 390. The cases have allowed first party causes of action for underage drivers and where the individual injured was an intoxicated adult.
Courts have found a bailor is liable to a bailee under the doctrine of negligent entrustment if the bailee is injured through his or her own negligence or incompetence and the bailor knew or should have known the bailee was likely to injure himself or herself because of inexperience or inability in using the object of the bailment. Ward Miller, Annotation, Negligent Entrustment: Bailor's Liability To Bailee Injured Through His Own Negligence Or Incompetence, 12 A.L.R. 4th 1062 (1982). The situation has arisen most commonly in the bailment of an automobile, with an automobile owner loaning an automobile to a young and inexperienced driver. Id. Yet, although holding that a bailee, who alleges that it was negligence for a bailor to entrust him or her with a certain object, has stated a valid cause of action, courts have indicated a willingness to allow traditional defenses of contributory negligence or assumption of the risk to bar recovery in some cases. Id.
One of the first cases to apply the above principles to a first party cause of action was Keller v. Kiedinger, 389 So. 2d 129 (Ala. 1980). The defendant, an eighteen-year-old boy, allowed the decedent, a fourteen-year-old girl, to drive his aunt's car. While driving, the decedent drove across the center line into the wrong lane. She swerved to avoid an oncoming vehicle, lost control, overturned the vehicle in a pond, and drowned as a result of the accident. The girl's father brought an action for negligent entrustment against the defendant.
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