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Lydia v. Horton10/30/2000
a theory of negligent entrustment. The court clarified:
Section 390 establishes a framework for examining the entrustment of a vehicle to an individual who presents an unreasonable risk of drinking and driving, based either on known propensity or intoxication on the occasion of the entrustment. The framers of section 390 specifically envisioned its application to cases of intoxicated entrustees. Illustration 7 states:
A, who makes a business of letting out boats for hire, rents his boat to B and C, who are obviously so intoxicated as to make it likely that they will mismanage the boat so as to capsize it or to collide with other boats. B and C by their drunken mismanagement collide with the boat of D, upsetting both boats. B, C, and D are drowned. A is subject to liability to the estates of B, C, and D under the death statute, although the estates of B and C may also be liable for the death of D.
Other jurisdictions apply section 390 to instances where the entrustee's incompetence to operate a vehicle centers on or includes the consumption of alcohol. E.g., Blake v. Moore, 162 Cal. App. 3d 700, 208 Cal. Rptr. 703, 707-08 (1984); Gorday v. Faris, 523 So. 2d 1215 (Fla. Dist. Ct. App. 1988); Snowhite v. State, 243 Md. 291, 221 A.2d 342, 355 (1966); Lombardo v. Hoag, 237 N.J. Super. 87, 566 A.2d 1185, 1190 n. 4 (1989); Cameron v. Downs, 32 Wash. App. 875, 650 P.2d 260, 262 (1982). This accords with the general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others.
Thus, we believe section 390 provides a basis for resolving the issues of duty (whether a supplier of a chattel owes any obligation to a person incurring physical harm from the use of the chattel by the person to whom it is supplied) and the specific standard of care (the criteria for assessing reasonable care in light of apparent risk) in the context of supplying chattels for the use of others. Casebolt, 829 P.2d at 358.
The Colorado court ruled an entrustee can recover for physical harm to himself resulting from negligent entrustment. The court noted " omparative negligence provides the appropriate framework for examining any negligence on the part of the [automobile borrower] who drives after consuming alcoholic beverages." Id. at 362.
The Court of Appeals of Texas, in Jamar v. Patterson, 910 S.W.2d 118 (Tex. Ct. App. 1995), discussed whether recovery for negligent entrustment was limited to third parties. The plaintiff in Jamar, an unlicensed, twelve-year-old driver, sustained facial injuries when she lost control of a dune buggy she was driving and struck a tree. She brought a suit against the owner of the dune buggy alleging the owner had negligently permitted her to operate the vehicle. The jury returned a verdict for the plaintiff. The defendant appealed asserting there is no first party cause of action for negligent entrustment.
The court found Texas law recognized a cause of action by a driver against the owner based upon negligent entrustment. The court amplified:
Moreover, recovery by the driver against the owner has been recognized in other jurisdictions where negligent entrustment was proven and not barred by contributory negligence. No case has been cited or found from another jurisdiction which limits such recovery to third parties. Furthermore, negligent entrustment is actionable by the driver under the Restatement (Second) of Torts § 390 cmt. c (1965). We are also aware of no policy reason for denying recovery to the driver for negligent entrustment. Jamar, 910 S.W.2d at 121 (footnote omitted).
V. Comparative Negligence in South Carolina
In Nelson
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