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Lydia v. Horton10/30/2000
knowledge of the intoxication, and the fault of plaintiff in drinking and then driving. Blake, 208 Cal. Rptr. at 708 (citations omitted).
Florida has likewise permitted an injured, drunken driver to sue the owner under negligent entrustment. Gorday v. Faris, 523 So. 2d 1215 (Fla. Dist. Ct. App. 1988), involved the entrustment of a vehicle by the intoxicated owner-passenger to his intoxicated friend. The plaintiff admitted his intoxication and that he agreed to drive the car. When he fell asleep at the wheel of the automobile, the plaintiff had an accident which resulted in his paralysis. The plaintiff sued his friend, claiming the friend negligently entrusted his car to an intoxicated driver. After reviewing cases from other jurisdictions and the Restatement (Second) of Torts § 390, the court decided:
Upon our review of the authorities cited, we conclude, in agreement with appellants, that this action is properly maintainable under the "negligent entrustment" theory, and that the evidence tending to establish negligence on the part of Brown in consciously deciding to take control of the vehicle, even though he knew he was in no condition to drive, must be weighed and considered, under comparative negligence principles, in relation to the evidence tending to establish negligence on the part of Faris in turning the car over to one whose faculties he either knew or should have known were impaired by drinking. . . . .
. . . We are persuaded, in view of the existence of the comparative negligence rule in Florida, that the liability for negligent entrustment under the circumstances indicated by the pleadings and the proofs thus far submitted in this case must be determined by the trier of fact after a comparative fault trial. Gorday, 523 So. 2d at 1219.
King v. Petefish, 541 N.E.2d 847 (Ill. App. Ct. 1989), is particularly instructive. In King, the defendant loaned her car to the decedent, an unlicensed, intoxicated fifteen-year-old girl. While driving the car, the decedent had an accident and died as a result. Decedent's estate brought an action against the entrustor of the vehicle.
The defendant contended Illinois did not recognize a cause of action by the entrustee against the entrustor and, even assuming it did, such a cause of action would be self-defeating because the negligence of the decedent was the proximate cause of her own injuries. The Appellate Court of Illinois stated:
It appears that in States where contributory negligence is the rule, such as Alabama (see Keller, 389 So. 2d 129), a cause of action by an entrustee against an entrustor under section 390 will be a self-defeating claim. However, the States that have adopted comparative negligence seem to uniformly accept such a cause of action. We find section 390 of the Restatement is appropriately applied to negligent entrustment cases of the type before us and hold, by that authority, a suit brought by an injured entrustee against his entrustor is a viable cause of action in a comparative negligence jurisdiction. King, 541 N.E.2d at 852. See also Steven C. Ward, Entrustees' Right to Sue for Negligent Entrustment, 78 Ill. B.J. 606 (Dec. 1990)(arguing the adoption by King v. Petefish of a first party cause of action for negligent entrustment should be continued after Illinois switches from pure comparative negligence to modified comparative negligence).
The Supreme Court of Colorado addressed a comparable issue in Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992). The wife of an employee sued the employer for the wrongful death of her husband after her husband, who was intoxicated at the time, died while operating his employer's vehicle. The wife asserted liability based on
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