Adams v. Aircraft Spruce & Specialty Co.

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JOHN S. ADAMS, COADMINISTRATOR (ESTATE
OF RYAN MICHAEL ADAMS), ET AL. v.
AIRCRAFT SPRUCE AND SPECIALTY
COMPANY ET AL.
(AC 44524)
Bright, C. J., and Prescott and Bear, Js.
Syllabus
The plaintiffs, the administrators of the estate of the decedent, sought to
recover damages from several defendants, including D, as a result of
an airplane crash that killed the decedent, who was a passenger, and
the pilot, C, D’s eighteen year old daughter who had obtained her pilot’s
license about one month before the crash. C, who had no training or
experience flying a Cessna 150H, was provided ground and dual flight
instruction in the airplane approximately three weeks before the crash
by E Co., a provider of flight instruction and airplane rentals, and its
owner, B, after which B permitted her to fly the airplane without an
instructor. C called E Co. to reserve a Cessna 150H airplane to fly on
the day of the crash. The plaintiffs claimed, inter alia, that D had orally
agreed with B prior to the crash that C would contact B about scheduling
further training, which would include the rental of the airplane, and
that D agreed to provide E Co. with a $1000 retainer, which D later
paid, to cover the cost of its services and rental fees. Until the day of
the crash, D was unaware that C had intended to fly that day, that she
had rented the airplane or that she had flown it that day with the
plaintiffs’ decedent as a passenger. D filed a motion for summary judg-
ment in which he claimed that he lacked the physical or legal control over
the airplane that was required to establish liability under the doctrine
of negligent entrustment. The trial court granted the motion, concluding,
inter alia, that D lacked the requisite control of the airplane to be
considered an entrustor or a supplier of it under a theory of negligent
entrustment. On the plaintiffs’ appeal to this court, held that the trial
court properly granted D’s motion for summary judgment, as there was
no genuine issue of material fact that D’s facilitation—monetary or
otherwise—of C’s access to the airplane was insufficient as a matter of
law to demonstrate the element of control necessary to find D liable
under the plaintiffs’ negligent entrustment cause of action: the plaintiffs
could not prevail on their claim that it was necessary to resolve the
parties’ dispute over whether D had arranged and paid for C’s rental of
the airplane before the court could determine whether D controlled the
airplane or C’s use of it, as that purported factual dispute did not raise
any genuine issue of material fact that was relevant to the case insofar
as access to and use of the airplane always remained exclusively within
the power and control of its owners, B and E Co., and, even if D had
acquired a right to use the airplane through an agreement with B and
E Co., such interest never amounted to actual control of the airplane
or control that was exclusive or superior to that of B and E Co., as D
could never have had physical or constructive possession of the airplane
without prior permission from B or E Co.; moreover, the undisputed
evidence showed that B was responsible for deciding whether to rent
the airplane and the terms and conditions of its rental, D had no right
or ability to prevent other parties from leasing the airplane or to veto
B’s decision to allow C access to it on the day of the crash, and D was
unaware on the day of the crash that C had flown the airplane or that
the plaintiffs’ decedent was a passenger; furthermore, contrary to the
plaintiffs’ unsupported contention, B and E Co. could not be considered,
under the applicable provision (§ 390) of the Restatement (Second) of
Torts, as third parties through whom D supplied C with the airplane,
as the phrase ‘‘third person’’ in § 390 was construed to mean one who acts
as a conduit for an entrustor, rather than one who exercises authority
and control.
Argued February 9—officially released September 27, 2022
Procedural History
Action to recover damages for, inter alia, the allegedly
wrongful death of the plaintiff administrators’ decedent
as a result of an allegedly defective product, and for
other relief, brought to the Superior Court in the judicial
district of Danbury and transferred to the judicial dis-
trict of Stamford-Norwalk, Complex Litigation Docket,
where the court, Lee, J., granted the motion to dismiss
filed by the named defendant; thereafter, the court,
Ozalis, J., granted the motion for summary judgment
filed by the defendant James W. Depuy and rendered
judgment thereon, from which the plaintiffs appealed
to this court. Affirmed.
David S. Golub, for the appellants (plaintiffs).
Laura Pascale Zaino, with whom, on the brief, were
Richard C. Tynan and Logan A. Carducci, for the
appellee (defendant James W. Depuy).
Opinion
PRESCOTT, J. This appeal arises out of a tragic acci-
dent involving two first year students at Colgate Univer-
sity (Colgate) who died when the airplane in which
they were flying, piloted by one of them, crashed in
Morrisville, New York. The principal issue in this appeal
is whether the father of the pilot can be held individually
liable in an action brought by the estate of the deceased
passenger on a claim of negligent entrustment because
the father facilitated the airplane’s rental from an entity
operating out of a small airport near Colgate. More
particularly, we are called on to consider whether there
are genuine issues of material fact as to whether the
father’s actions could constitute sufficient control over
the airplane, a potentially dangerous instrumentality,
so that he could be deemed a supplier or entrustor of
that instrumentality under our law regarding the tort
of negligent entrustment.
The plaintiffs, John S. Adams and Mary Lou Hanney,
brought the underlying action as coadministrators of
the estate of their son, Ryan Michael Adams, who was
eighteen years old when he died on September 20, 2015,
in the airplane crash that also claimed the life of the
eighteen year old, newly licensed pilot of the airplane,
Cathryn Depuy. The plaintiffs now appeal from the sum-
mary judgment rendered against them on the two
counts of their complaint brought against the defendant
James W. Depuy, the father of the deceased pilot,1 which
sounded in negligence and negligent entrustment.
The plaintiffs claim on appeal that the trial court
improperly rendered summary judgment with respect
to the negligent entrustment count.2 In particular, they
claim that genuine issues of material fact remain in
dispute regarding the defendant’s rental of the Cessna
150H airplane that his daughter was piloting when it
crashed, which, the plaintiffs contend, if proven, would
demonstrate that he had the requisite control over the
airplane to establish that he negligently entrusted the
airplane to his daughter.3 We conclude that no genuine
issue of material fact exists and that the defendant is
entitled to summary judgment as a matter of law on
the negligent entrustment count because the undis-
puted facts demonstrate that, assuming he rented the
airplane for his daughter’s use, he nevertheless lacked
the necessary control over the airplane to meet an
essential element of a cause of action sounding in negli-
gent entrustment. Accordingly, we affirm the judgment
of the court.
The record before the court, which we view in the
light most favorable to the plaintiffs as the nonmoving
parties, reveals the following relevant facts and proce-
dural history. On August 2, 2013, the defendant’s daugh-
ter began taking ground instruction at the Danbury Air-
port in Connecticut. On August 17, 2015, shortly before
leaving for college and approximately one month prior
to the crash at issue, she obtained her private pilot’s
license from the Federal Aviation Administration
(FAA). Up to this point, all of her training and experi-
ence flying had been in a Piper Warrior airplane. She
had no training or experience flying a Cessna 150H
prior to leaving for college.
On August 23, 2015, the defendant’s wife, Cathleen
Wright, drove their daughter to Colgate, located in Ham-
ilton, New York, intending to leave the vehicle with
their daughter for her use while at college. The defen-
dant, who also is a licensed pilot and owns his own
plane, flew his plane to the Hamilton Municipal Airport
to join his wife and help move their daughter into her
dormitory room.
After he arrived at the airport in Hamilton, the defen-
dant needed to wait for his wife to pick him up to
bring him to the Colgate campus. During that time, the
defendant had an opportunity to meet and speak with
Richard O. Bargabos, who owned and operated Bar-
gabos Earthworks, Inc., which was doing business as
Eagle View Flight (Eagle View) and was based at the
Hamilton Municipal Airport. Eagle View offered both
flight instruction and airplane rentals. The two dis-
cussed the fact that the defendant’s daughter was a
licensed pilot. They agreed that she would contact Bar-
gabos about scheduling further training at the Eagle
View flight school, which would include the rental of
Eagle View’s Cessna 150H airplane, and that Eagle View
would be provided with a $1000 retainer to cover the
cost of Eagle View’s services, including any rental fees.4
This was the only conversation that the defendant had
with Bargabos until after the plane crash on September
20, 2015. After the defendant helped his daughter move
into her dormitory room, she drove him and Wright
back to the Hamilton Municipal Airport, and the defen-
dant flew himself and his wife back to the airport in
Danbury.
The defendant’s daughter attended Eagle View’s flight
school on August 29 and 30, 2015, at which time Bar-
gabos provided her with both ground instruction and
dual flight instruction in a Cessna 150H airplane owned
by Eagle View. On August 30, 2015, Bargabos permitted
her to fly the Cessna 150H airplane by herself without
an instructor.
On August 31, 2015, the defendant spoke with his
daughter on the phone and learned that she had begun
receiving flight instruction from Bargabos and Eagle
View. He asked her how she had paid for those services,
and she indicated that she had not yet paid any money
to Eagle View. Thereafter, the defendant sent a $1000
check to Eagle View payable to ‘‘Eagle View Flight.’’
He included a handwritten note with the check, indicat-
ing that the money was for ‘‘flight training [and] plane
rental for Cathryn Depuy.’’ Neither the check nor the
note made reference to any specific dates, to a specific
aircraft, or to how the $1000 payment was to be allo-
cated between past and future instruction and rentals.
The defendant never signed any rental agreement or
other paperwork with Eagle View or Bargabos.5
The defendant was not aware until after the crash
occurred that Bargabos had cleared his daughter to fly
without a flight instructor out of the Hamilton Municipal
Airport. The defendant was also not aware that his
daughter had intended to fly anywhere on September
20, 2015, that she had rented an airplane on that date,
or that she flew with the plaintiffs’ decedent as a passen-
ger.
Bargabos and Eagle View had rented the same Cessna
150H airplane to two other pilots in the week prior to
renting it to the defendant’s daughter on September 20,
2015. Bargabos and Eagle View permitted her to rent
the plane on the day of the crash without any communi-
cation with the defendant and allowed her to fly it
without a flight instructor. Ryan Adams joined her as
a passenger. Shortly before 12:51 p.m., on September 20,
2015, the Cessna 150H airplane apparently lost power
to the engine.6 The airplane soon thereafter crashed to
the ground, and both teenagers were killed.
In September, 2017, the plaintiffs commenced the
underlying lawsuit. The operative revised complaint
was filed on March 23, 2018, and contained six counts.
Counts one and two alleged product liability against
Aircraft Spruce & Specialty Company (Aircraft Spruce)
and Kelly Aerospace Power Systems, Inc., and its suc-
cessor in liability, Kelly Aerospace Energy Systems,
LLC, related to the airplane’s allegedly faulty carbure-
tor.7 Count three sounded in negligence and was
brought against the defendant and Wright in their repre-
sentative capacities as the coadministrators of their
daughter’s estate. Count four alleged negligent
entrustment of the airplane by Bargabos and Eagle
View. Counts five and six were brought against the
defendant in his individual capacity and, as previously
stated, sounded in negligence and negligent
entrustment. The defendant filed an answer and special
defenses to the revised complaint.
On January 30, 2020, the defendant filed a motion
for summary judgment as to both counts against him
individually and a memorandum of law in support of
the motion. Attached to the memorandum of law were
exhibits consisting of excerpts from the depositions of
Hanney and Bargabos; sworn affidavits by the defen-
dant and Bargabos; a copy of the handwritten note that
accompanied the defendant’s payment to Eagle View;
and a copy of the final accident report issued by the
National Transportation Safety Board regarding the
September 20, 2015 crash.
With respect to the negligence count, the defendant
argued that he was entitled to summary judgment as a
matter of law because he had no legal right or duty to
control his adult daughter on the date of the accident
or any duty to protect the plaintiffs’ decedent. He also
argued that an action for negligence could not be main-
tained unless some legally cognizable duty of care
exists. With respect to the negligent entrustment count,
the defendant argued that he could not be liable as a
matter of law on a theory of negligent entrustment
because he had no physical or legal control over the
Cessna 150H involved in the crash, which was owned
by Eagle View and which Bargabos had cleared his
daughter to use.
The plaintiffs filed a memorandum of law in opposi-
tion to the motion for summary judgment, to which
they attached a number of exhibits, including excerpts
from interrogatory responses by Bargabos and Eagle
View, and excerpts from transcripts of depositions of
Bargabos, the defendant, Wright, and the plaintiffs. The
plaintiffs argued that there were genuine issues of mate-
rial fact in dispute that should preclude the rendering
of summary judgment. Two of those issues arguably
pertained to elements of the negligent entrustment
count that is at issue on appeal, namely, whether the
defendant had supplied or ‘‘entrusted’’ the airplane to
his daughter, and whether he had done so with knowl-
edge that her inexperience or incompetence as a pilot
presented an unreasonable risk of physical harm to her
or a third party.
First, with respect to the entrustment element, the
plaintiffs argued that a factual dispute remained as to
the manner in which the defendant had arranged and/
or paid for the rental of the Cessna 150H used in the
crash. Specifically, the plaintiffs note Bargabos’ state-
ments regarding (1) the meeting between the defendant
and Bargabos at the Hamilton Municipal Airport in
August, 2015, at which the defendant had requested
that Bargabos provide the defendant’s daughter with
flight instruction and airplane rental for her use, which
Bargabos agreed to do, and (2) the check and note later
sent to Eagle Flight by the defendant that specifically
references airplane rental. See footnote 4 of this opin-
ion.
Second, with respect to the defendant’s knowledge
of the risk involved, the plaintiffs argued that a dispute
exists about whether the defendant knew or should
have known that it would be dangerous, and therefore
inappropriate, for him to rent an airplane for use by
his newly licensed and inexperienced eighteen year old
daughter. In particular, the plaintiffs point out that,
according to Hanney’s deposition testimony, which was
a part of the summary judgment record, two weeks
prior to the crash, the plaintiffs, the defendant, and
Wright had a conversation after church services during
which Wright expressed reservations about the defen-
dant’s daughter flying in general and, in particular, with
her flying with passengers. Allegedly, Wright had told
the plaintiffs that she had spoken with the mother of
another person who her daughter had offered to take
flying, and had stated: ‘‘And I want you to know that I
wouldn’t let my other daughter fly with [Cathryn] for
fear of losing them both.’’ The defendant denies being
present for this conversation or hearing that statement.
The court heard oral argument on the motion for
summary judgment and subsequently issued a memo-
randum of decision rendering judgment in favor of the
defendant on both counts against him. With respect to
the negligent entrustment count, the court concluded
as a matter of law that the defendant lacked the requisite
control over Eagle View’s Cessna 150H airplane to be
considered an entrustor or supplier of the aircraft.
The court explained in relevant part: ‘‘It is clear from
the undisputed evidence submitted in support of this
motion for summary judgment, that there is no genuine
issue of material fact that [the defendant] did not have
a superior right or exclusive control of the Cessna 150H
airplane involved in the crash on September 20, 2015.
The evidence shows that Bargabos and Eagle View
owned the aircraft, controlled the scheduling for the
rental of the plane, controlled which pilots were
deemed sufficiently proficient to rent their planes, and
never communicated with [the defendant] about reserv-
ing the Cessna 150H airplane for [his daughter] on Sep-
tember 20, 2015, or any other date, or the circumstances
under which she could use the plane. [The defendant’s]
payment for [his daughter’s] flight instruction and plane
rental was not specific to dates or routes. The plaintiffs
have not presented any evidence that [the defendant]
knew [his daughter] was flying the Cessna 150H airplane
on September 20, 2015, who she would be flying with, or
where she would be flying to. The undisputed evidence
shows that it was [the defendant’s daughter], in sole
coordination with Eagle View, who made the arrange-
ments for the airplane rental on September 20, 2015.’’
Because the court determined that the defendant had
met his burden of demonstrating that there was no
genuine issue of material fact and he lacked the requi-
site control over the aircraft piloted by his daughter on
the day of the crash to be liable under a theory of
negligent entrustment, it granted the motion for sum-
mary judgment in favor of the defendant on that count.
This appeal followed.
The plaintiffs claim on appeal that the trial court
improperly granted the defendant’s motion for sum-
mary judgment with respect to the negligent
entrustment count. They argue that the court impermis-
sibly resolved genuine issues of material fact and
ignored controlling legal principles in arriving at its
conclusion that, as a matter of law and undisputed fact,
the defendant lacked the requisite control over Eagle
View’s Cessna 150H to qualify as an entrustor of the
airplane. The defendant argues to the contrary that the
court properly rendered summary judgment in his favor
with respect to the negligent entrustment count because
the undisputed facts confirm that he did not have the
necessary control, power, or authority to entrust Eagle
View’s airplane to his daughter, and, even if he did, he
did not know or have reason to know that his daughter
was unfit to fly the airplane. On the basis of our review
of the summary judgment record, we agree with the
defendant that his facilitation—monetary or other-
wise—of his daughter’s access to the airplane at issue
was insufficient as a matter of law to demonstrate con-
trol of the airplane necessary to find him liable under
a theory of negligent entrustment. Before turning to
our analysis of the plaintiffs’ claim, we first set forth
relevant legal principles, including our standard of
review and a discussion of the common-law tort of
negligent entrustment as it exists in this state and in
other states.8
I
Our standard of review with respect to a court’s ruling
on a motion for summary judgment is well settled.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [I]ssue-finding, rather than
issue-determination, is the key to the procedure. . . .
[T]he trial court does not sit as the trier of fact when
ruling on a motion for summary judgment. . . . [Its]
function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
Our review of the decision to grant a motion for sum-
mary judgment is plenary. . . . We therefore must
decide whether the court’s conclusions were legally
and logically correct and find support in the record.’’
(Internal quotation marks omitted.) Barbee v. Sysco
Connecticut, LLC, 156 Conn. App. 813, 817–18, 114 A.3d
944 (2015). ‘‘A material fact . . . [is] a fact which will
make a difference in the result of the case.’’ (Internal
quotation marks omitted.) DiPietro v. Farmington
Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951(2012).
We now turn to the applicable substantive law. It is
a well accepted general tort principle that a person
ordinarily will not be deemed liable for the actions of
another that result in an injury to a third party. See,
e.g., Fraser v. United States, 236 Conn. 625, 632, 674
A.2d 811 (1996) (‘‘absent a special relationship of cus-
tody or control, there is no duty to protect a third person
from the conduct of another’’ (internal quotation marks
omitted)). As stated in § 315 of the Restatement (Sec-
ond) of Torts: ‘‘There is no duty so to control the con-
duct of a third person as to prevent him from causing
physical harm to another unless (a) a special relation
exists between the actor and the third person which
imposes a duty upon the actor to control the third
person’s conduct, or (b) a special relation exists
between the actor and the other which gives to the
other a right to protection.’’9 2 Restatement (Second),
Torts § 315, p. 122 (1965); see also Murdock v. Crough-
well, 268 Conn. 559, 567, 848 A.2d 363 (2004) (applying
§ 315 and noting that, by its express terms, it ‘‘is an
exception to the general rule that there is no duty to
control the conduct of a third person’’).
The tort of negligent entrustment is another excep-
tion to this general tort principle. ‘‘The rationale under-
lying the imposition of negligent entrustment liability
on suppliers of chattels is that one has a duty not to
supply a chattel to another who is likely to misuse it
in a manner causing unreasonable risk of physical harm
to the entrustee or others. The purpose of the negligent
entrustment doctrine is to articulate a set of standards
that, if met, establish the duty and breach elements of
a negligence claim without the necessity for the detailed
analysis that often is required to determine the exis-
tence of a duty.’’ (Footnotes omitted.) 57A Am. Jur. 2d
387, Negligence § 293 (2022); see also Casebolt v.
Cowan, 829 P.2d 352, 359 (Colo. 1992) (‘‘the very pur-
pose of the doctrine of negligent entrustment is to estab-
lish criteria by which to resolve the difficult issues of
duty and breach when negligent entrustment elements
are established’’).
In Soto v. Bushmaster Firearms International, LLC,
331 Conn. 53, 78–81, 202 A.3d 262, cert denied sub nom.
Remington Arms Co., LLC v. Soto, U. S. , 140
S. Ct. 513, 205 L. Ed. 2d 317 (2019), our Supreme Court
explained the historical background of the common-
law tort of negligent entrustment and how it has devel-
oped thus far in Connecticut.10 The court traced the
origin of the tort back to a nineteenth century English
case, Dixon v. Bell, 105 Eng. Rep. 1023 (K.B. 1816).
See Soto v. Bushmaster Firearms International, LLC,
supra, 78. ‘‘In Dixon, the defendant sent a preadolescent
girl to retrieve a loaded gun, resulting in the accidental
shooting of the plaintiff’s son. . . . In upholding a ver-
dict for the plaintiff that the defendant was liable for
entrusting the girl with the care and custody of the
weapon, the court recognized that he well [knew] that
the said [girl] was too young, and an unfit and improper
person to be sent for the gun . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id. The court further
stated: ‘‘American courts began applying the doctrine
of negligent entrustment in the 1920s, following the
advent of the mass produced automobile . . . and Con-
necticut first recognized the common-law cause of
action in Turner v. American District Telegraph &
Messenger Co., 94 Conn. 707, 110 A. 540 (1920).11 In
that case, the defendant security company entrusted a
loaded pistol to an employee who later instigated a fight
with and ultimately shot the plaintiff, a customer’s night
watchman. . . . [Our Supreme Court] held that there
was insufficient evidence to support a verdict for the
plaintiff on his negligent entrustment claim because
there was not even a scintilla of evidence that the defen-
dant had or [should] have had knowledge or even suspi-
cion that [its employee] possessed any of the traits . . .
attributed to him by the plaintiff, including that he was
a reckless person, liable to fall into a passion, and unfit
to be [e]ntrusted with a deadly weapon . . . .’’ (Cita-
tions omitted; footnote added; internal quotation marks
omitted.) Id., 78–79. The court then stated: ‘‘Without
this vitally important fact . . . the plaintiff’s claim falls
to the ground . . . .’’ (Internal quotation marks omit-
ted.) Soto v. Bushmaster Firearms International, LLC,
supra, 79.
The court in Soto next discussed Greeley v. Cunning-
ham, 116 Conn. 515, 165 A. 678 (1933), in which our
Supreme Court articulated the standards that govern a
negligent entrustment action in the context of automo-
biles, which, as the court in Soto noted, has since
‘‘become the primary context in which [negligent
entrustment] claims have arisen.’’12 Soto v. Bushmaster
Firearms International, LLC, supra, 331 Conn. 79.
Relying on language from Greeley, the court in Soto
stated that the elements of a cause of action sounding
in negligent entrustment of an automobile are ‘‘(1) the
owner of an automobile entrusts it to another person
(2) whom the owner knows or should reasonably know
is so incompetent to operate it that injury to others
should reasonably be anticipated, and (3) such incom-
petence results in injury.’’13 Id., 80.
The court emphasized in Soto that ‘‘a cause of action
for negligent entrustment—whether involving a vehicle,
a weapon, or some other dangerous item—will [not]
lie in the absence of evidence that the direct entrustee
is likely to use the item unsafely. Most jurisdictions that
have recognized a cause of action in negligent
entrustment likewise require that the actor have actual
or constructive knowledge that the specific person to
whom a dangerous instrumentality is directly entrusted
is unfit to use it properly. . . . In accordance with the
majority view, this also is the rule set forth in the
Restatement (Second) of Torts. Section 308 of the
Restatement (Second) of Torts14 provides that [i]t is
negligence to permit a third person to use a thing . . .
[that] 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 . . . in such a manner as to
create an unreasonable risk of harm to others. . . .
Section 390,15 which further defines the tort of negligent
entrustment, provides that [o]ne who supplies . . . 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 involv-
ing unreasonable risk of physical harm to himself and
others . . . is subject to liability for physical harm
resulting to them. . . . We take it as well established,
then, that, in order to prove negligent entrustment, a
plaintiff must demonstrate that (1) the defendant has
entrusted a potentially dangerous instrumentality to a
third person (2) whom the entrustor knows or should
know intends or is likely to use the instrumentality in
a manner that involves unreasonable risk of physical
harm, and (3) such use does in fact cause harm to
the entrustee or others.’’ (Citations omitted; emphasis
altered; footnotes added; internal quotation marks omit-
ted.) Id., 80–81.
The principal issue decided by the court in Soto was
whether the plaintiffs in that case had met the second
of these three enumerated requirements that it identi-
fied as necessary to sustain a cause of action for negli-
gent entrustment.16 Accordingly, the decision does not
discuss in any meaningful way the first requirement,
which is the focus of our inquiry in the present appeal.
Nonetheless, it is clear from the court’s discussion in
Soto preceding its recitation of the three requirements
that it employed and approved of the analytical
approach found in the Restatement (Second) of Torts,
as expressed in §§ 308 and 390, which is consistent
with the approach taken by courts in other jurisdictions
when considering the tort of negligent entrustment. See,
e.g., Casebolt v. Cowan, supra, 829 P.2d 358–59, and
cases cited therein; id., 358 (‘‘[i]n electing to utilize [§§]
308 and 390 of the Restatement to guide us in our
analysis, we follow a path already taken by a number of
other states that have employed, approved, or adopted
those Restatement rules as part of their negligence juris-
prudence’’ (footnote omitted)); see also Neary v.
McDonald, 956 P.2d 1205, 1208 (Alaska 1998) (in adopt-
ing [§§] 308 and 390, court recognized that ‘‘[m]ost states
have patterned their versions of the negligent
entrustment doctrine after [§§ 308 and 390] of the
Restatement (Second) of Torts’’). Furthermore, com-
ment (b) to § 390 explains that the rule stated in § 390,
which pertains to the supplying of a chattel to a person
who is incompetent to use it safely, ‘‘is a special applica-
tion of the rule stated in § 308,’’ which applies more
broadly to all types of property and activities. 2
Restatement (Second), supra, § 390, comment (b), p.
315. Accordingly, §§ 308 and 390 must be read in con-
junction with one another. See Broadwater v. Dorsey,
344 Md. 548, 558, 688 A.2d 436 (1997) (‘‘[s]ections 390
and 308 [of the Restatement (Second) of Torts] are in
pari materia, and must be read together’’).17
Accordingly, consistent with §§ 308 and 390 of the
Restatement (Second) of Torts and the commentary
thereto, we interpret the first Soto requirement—that
a plaintiff must demonstrate that the defendant
‘‘entrusted a potentially dangerous instrumentality’’;
Soto v. Bushmaster Firearms International, LLC,
supra, 331 Conn. 81—to require a plaintiff to show that
the potentially dangerous instrumentality supplied or
entrusted by the defendant was ‘‘under the control of’’
the defendant at the time possession was transferred.18
2 Restatement (Second), supra, § 308, p. 100. Such a
construction is consistent with other jurisdictions that
have adopted the Restatement’s approach to the tort
of negligent entrustment, as well as other authoritative
secondary sources.
As courts in other jurisdictions persuasively have
reasoned, actions by a defendant that only facilitate
another’s ability to have access to a potentially danger-
ous instrumentality from a third party will be insuffi-
cient, without more, to establish control over the instru-
mentality for purposes of sustaining an action for
negligent entrustment. Some examples are useful to
illustrate this point.19
In Zetter v. Griffith Aviation, Inc., Docket No. 6:03-
218-DCR, 2006 WL 1117678 (E.D. Ky. April 25, 2006),
the federal District Court granted a motion for summary
judgment on a negligent entrustment count that arose
out of an airplane crash. Id., *13–14. The relevant undis-
puted facts were as follows: Todd Zetter was the vice
president of a company with operations in Griffith, Indi-
ana. Id., *1. Zetter, his wife, and four children lived in
Somerset, Kentucky. To entice Zetter to agree to work
in Griffith while his family remained in Somerset, the
company included a clause in his employment contract
that allowed Zetter to fly home to Somerset on week-
ends or his family to fly to Griffith. Id. To arrange these
flights, Zetter would speak with an administrative assis-
tant at the company, who would then arrange the details
of the flights. Id. The administrative assistant would
first obtain approval for the flight from the company’s
president and then would contact Griffith Aviation, a
fixed base operator at Griffith Airport in Griffith. Id.
Griffith Aviation would provide a pilot, who ordinarily
would fly Zetter or his family in an airplane owned by
the company’s president or one of his businesses. Id.
On one of these routine trips, Zetter’s wife and children
were returning home after visiting Zetter in Griffith in
a Cessna 421 owned by a different party. Id., *1–2, 15.
That plane crashed as it was making its final approach
to the Somerset airport. Id., *1. One of Zetter’s children
was ejected from the aircraft and died. Id. The pilot
and another passenger in the front seat were also killed.
Id. Zetter’s wife and his other three children were
injured but survived the crash. Id. The Zetters filed a
lawsuit against multiple parties, alleging both tort and
contract causes of action. Id. One count was brought
against Zetter’s employer and sounded in negligent
entrustment on the theory that the company had
allowed the pilot to operate the Cessna without proper
FAA licensing and without verifying the pilot’s currency
with FAA regulations. Id., *13.
The company moved for summary judgment, arguing,
inter alia, that the plaintiffs could not establish the
elements of negligent entrustment because the com-
pany did not own the aircraft that had crashed. Id. The
District Court recognized that Kentucky had adopted
§ 390 of the Restatement (Second) of Torts, pursuant
to which the plaintiffs needed to establish, inter alia,
that the company was the ‘‘supplier of’’ the airplane that
crashed. Id., *13–14. The court concluded that summary
judgment on the negligent entrustment count was war-
ranted because ‘‘the plaintiffs ha[d] not identified suffi-
cient evidence by which a reasonable jury could find
that [the company] ‘supplied’ the plane.’’ Id., *14.
Although the court recognized that ‘‘nowhere is it
explicitly stated, in either § 390 or any of the cases
interpreting it, that the party supplying the chattel must
have ownership, possession or control of the same, all
of the comments and illustrations to the Restatement
assume as much. . . . No authority has been cited in
which a party was held liable under negligent
entrustment where it had no control at any time of the
object (i.e., chattel) which was misused. [The com-
pany] cannot be liable for negligently entrusting [the
pilot] with a plane which was owned by [a third party]
and kept at Griffith Airport. The plaintiffs have identi-
fied no evidence to suggest that [the company] exer-
cised any physical possession or control of the [air-
plane that] was involved in the crash.’’ (Citations
omitted; emphasis added; footnotes omitted.) Id., *14–
15. In other words, even though the company or its
servants had arranged for and financed the ill-fated
flight, those actions alone were insufficient to establish
control of the airplane for purposes of sustaining a
cause of action sounding in negligent entrustment. See
id., *13–15.
In Mejia v. Erwin, 45 Wn. App. 700, 726 P.2d 1032(1986), an automobile passenger was injured in a crash
that also killed the driver. Id., 701. The passenger sued,
inter alia, the deceased driver’s father on a theory of
negligent entrustment. Id. The undisputed facts estab-
lished that the driver, who was twenty-nine years old,
had contacted his father and asked to borrow the
father’s credit card in order to rent an automobile from
a car rental company while the driver’s own vehicle
was being repaired. Id. The father agreed and went with
the son to the car rental company to arrange for the
rental. Id. The car was rented in the father’s name,
although the rental agent knew that the son was to be
the only driver and the rental agreement indicated that
the driver would be the son. Id. The trial court rendered
summary judgment in favor of the father on the negli-
gent entrustment count, and the passenger appealed.
Id., 701–702.
The Washington Court of Appeals upheld the trial
court’s summary judgment, holding in part that the driv-
er’s father had not ‘‘entrusted’’ the rental vehicle to his
son. Id., 703. The court first recognized that ‘‘reason
would suggest that a person renting or leasing a car
could negligently entrust it to another’’ because ‘‘[a]
person may be in control of a vehicle, for purposes of
negligent entrustment, even though the person does
not own a vehicle.’’ (Emphasis added.) Id. The court
summarily concluded nevertheless that, ‘‘even viewing
the evidence here most favorably to [the plaintiff], there
are no facts showing that [the father] entrusted a vehicle
to [his son]. The facts reveal, rather, that [the father]
was simply lending his credit to [his son] to assist him
in renting a replacement automobile. The fact that the
automobile was rented in [the father’s] name does not
alter the true nature of this transaction—a mere accom-
modation.’’20 (Emphasis in original.) Id. In other words,
it was the rental car company, not the father, that had
entrusted the vehicle to the son because the company
had physical control over the vehicle and the authority
to decide whether to rent it for the use of the son.
The Supreme Court of Colorado engaged in similar
analysis in its en banc opinion in Peterson v. Halsted,
829 P.2d 373 (Colo. 1992). In that case, the plaintiffs,
Barry Halsted, the operator of a vehicle that was struck
by another vehicle operated by a twenty-five year old
drunken driver, and Teresa Billings, the mother of a
child in Halsted’s vehicle who was killed in the crash,
brought consolidated actions against the parents of the
drunken driver, alleging, inter alia, negligent entrustment.
Id., 375. The trial court rendered summary judgment in
favor of the drunken driver’s parents, and the plaintiffs
appealed. Id. The Colorado Court of Appeals reversed
the summary judgment rendered on the negligent
entrustment counts, but the Colorado Supreme Court
reversed the decision of the Court of Appeals, holding
that the parents were not the ‘‘suppliers’’ of the automo-
bile and the tort doctrine of negligent entrustment was
not applicable under the facts presented. Id., 377. The
facts showed that one of the parents had cosigned loan
documents that allowed the drunken driver to purchase
the vehicle that was later involved in the crash. Id., 376.
The court in Peterson first examined the rule stated
in § 390 of the Restatement (Second) of Torts and the
examples therein, and concluded that the ‘‘examples of
suppliers all describe persons having possession or
right to possession of a chattel at the time of
entrustment and who directly supply the chattel to the
user.’’ Id., 378. It then reasoned: ‘‘The purpose of the
negligent entrustment doctrine is to articulate a set of
standards that if met, establish the duty and breach
elements of a negligence claim without the necessity
for the detailed analysis that often is required to deter-
mine the existence of a duty. . . . We are persuaded
that the circumstances in which money or credit may
be lent to facilitate the purchase of a vehicle are so
many and varied as not to be readily adaptable to the
simplified resolution of the duty question that results
from the application of negligent entrustment analy-
sis. . . . Policy considerations may vary depending on
the relationship of the lender to the borrower, the finan-
cial circumstances of the borrower, and the time
elapsed between the loan and any resulting injury, to
name but a few relevant factors. Our general negligence
law is well adapted to take into account and weigh such
manifold and disparate considerations in arriving at a
conclusion whether a particular lender owes a duty of
care to a particular injured party. . . . Accordingly, we
think it unwise and destructive of flexibility of analysis
to classify suppliers of money or credit categorically
as suppliers of chattels under section 390 even though
the loan or credit may be essential to the borrower in
obtaining possession of the chattel.’’ (Citations omitted;
emphasis added.) Id.
Finally, in Johnson v. Mers, 279 Ill. App. 3d 372, 664
N.E.2d 668 (1996), one of the plaintiffs, James Johnson,
had filed a lawsuit against a number of defendants after
he was seriously injured by a municipal police officer
who shot him with her service revolver, while off duty,
during an altercation at Johnson’s home.21 Id., 375. One
count of the multicount complaint was brought against
the town in which the police officer was employed on
a theory that the town had negligently entrusted the
service revolver to the officer. Id. The undisputed facts
demonstrated that, when the town hired the officer,
she did not have a firearm owner’s identification (FOI)
card and that the chief of the town’s police department
had written a letter to a local gun shop on town statio-
nery, verifying that she was a police officer to aid her
acquisition of her service revolver. Id., 377. The town
moved for summary judgment. Id., 375. The trial court
rendered summary judgment on that count in favor of
the town, and Johnson appealed. Id.
The Appellate Court of Illinois upheld the trial court’s
decision. Citing to and relying on § 308 of the Restate-
ment (Second) of Torts and its commentary, the court
stated: ‘‘[E]ntrustment must be defined with reference
to the right of control of the [defendant] over the subject
property, which, in the case at bar, is [the officer’s]
service revolver. . . . If [a defendant] does not have
an exclusive right or superior right of control, no
entrustment of the property can occur. . . . The mere
fact that [a defendant] facilitates the acquisition of the
dangerous subject property, is, by itself, insufficient
to support an action for negligent entrustment. . . .
‘‘In the case at bar, the chief of [police] wrote a
letter to a gun shop which facilitated [the officer’s]
acquisition of her service revolver before she was in
possession of a valid FOI card. However, [the officer]
subsequently received her FOI card and, thus, had a
right, independent of her status as a police officer, to
possess a firearm. The firearm was not owned by [the
town], but had been purchased by [the officer]. There-
fore, because [the officer’s] service revolver was not in
any way under the control of [the town], the trial court
was correct in granting summary judgment in favor of
[the town] as to [the negligent entrustment] count.’’
(Citations omitted; emphasis added.) Id., 379; see also
Bailey v. Advance America, Cash Advance Centers,
Inc., Docket No. 3:16-CV-256TSL-RHW, 2016 WL 9281316,
*4 (S.D. Miss. June 8, 2016) (citing Johnson and other
precedent for proposition that ‘‘no entrustment can
occur unless the entrustor has an exclusive or superior
right of control; merely facilitating access to the prop-
erty, by itself, is insufficient to support an action for
negligent entrustment’’ (emphasis altered)); Bahm v.
Dormanen, 168 Mont. 408, 412, 543 P.2d 379 (1975)
(‘‘[T]he basis of negligent entrustment is founded on
control [that] is greater [than] physical power to pre-
vent. A superior if not exclusive legal right to the object
is a precondition to the imposition of the legal duty.’’
(Emphasis added.)).
With this legal background and case law in mind,
we now apply these principles to the present case to
determine whether summary judgment was properly
rendered.
II
The trial court rendered summary judgment in favor
of the defendant because, in its view, the undisputed
facts showed that the defendant lacked the requisite
control over the Cessna 150H to have liability under a
theory of negligent entrustment. The court determined
that the dispute about the precise contours of the
arrangement between the defendant and Bargabos, by
which the defendant facilitated his daughter’s access
to the Cessna 150H, including whether any actual agree-
ment existed, did not raise a genuine issue of material
fact because access to and use of the plane was and
always remained exclusively within the power and con-
trol of Bargabos and Eagle View. On the basis of our
plenary review of the summary judgment record, we
agree with the trial court that the defendant is entitled to
summary judgment on the negligent entrustment count
because there is no genuine issue of material fact that
he lacked the necessary control over the airplane to
have ‘‘entrusted’’ it to his daughter.
The plaintiffs argue that a conclusion regarding
whether the defendant controlled the aircraft or his
daughter’s use of it requires resolution of the parties’
factual dispute over whether the defendant had
‘‘arranged for his daughter’s use of the plane and paid
for its rental.’’ Viewed in the light most favorable to the
plaintiffs, however, this purported factual dispute does
not raise any issue of fact that is material to the outcome
of this case. Even if we were to assume that the defen-
dant entered into an agreement with Bargabos through
which he acquired some right to use the airplane, such
interest alone never amounted to actual control over
the airplane because he never could have had physical
or constructive possession of it without the prior per-
mission of Bargabos or Eagle View.22 Thus, any control
the defendant did have over the airplane could not be
reasonably construed as exclusive or superior to that
of Bargabos and Eagle View. It is undisputed that, as
the owners-lessors of the airplane, Bargabos and Eagle
View always had possession and control of the airplane
prior to it being flown by the defendant’s daughter,
including on September 20, 2015, the day of the crash.
Accordingly, they, not the defendant, had the right and
ability, regardless of any prior dealing or agreement
with the defendant, to determine whether the defen-
dant’s daughter would be permitted to fly on the day of
the crash, in what airplane, and under what restrictions.
The plaintiffs argue that the trial court ‘‘seems to
have concluded that ‘control,’ in the present context,
requires ‘superior’ and ‘exclusive’ rights with respect
to the entrusted chattel’’ and that ‘‘[t]hat conclusion is
inconsistent with . . . recent Connecticut authority,’’
citing the Superior Court decision in Wilson v. Hopkins,
Docket No. CV-XX-XXXXXXX-S, 2018 WL 3579160, *2
(Conn. Super. July 9, 2018). In particular, the plaintiffs
rely on a statement by the trial court in Wilson that
‘‘[n]either the Restatement nor any controlling Connect-
icut authority agrees with imposing the additional
requirement . . . that any allegation of control must
allege exclusive control.’’ Id. We are not persuaded by
this argument for a number of reasons. First, Wilson
is not binding precedent on this court. Second, the
court’s statement in Wilson, made in the context of
considering a motion to strike a negligent entrustment
count, must be considered in light of the language that
follows the quoted passage. The court in Wilson contin-
ued: ‘‘Control under the Restatement must be seen as
the power to exclude use of the chattel by another, but
it doesn’t automatically mean that the power can’t be
shared with others. If two parties have the right to veto
the use of a chattel both parties may make judgment
calls that—under some circumstances—might logically
lead to liability.’’ Id. Thus, the court in Wilson was
addressing a situation in which there were multiple
parties involved with equal control over use of an instru-
mentality and concluded that ‘‘there is no good reason
to make the party immune from negligent entrustment
liability merely because the party had control but not
exclusive control.’’ Id. As we have stated, the record in
the present case demonstrates that the defendant,
unless his daughter agreed to abide by his wishes, had
no right or ability to veto or countermand Bargabos’
and Earth View’s decision, even if he had known about
it prior to the flight, to allow his daughter access to the
airplane on the date of the crash, and, therefore, the
discussion of the Restatement in Wilson is inapposite
to the present case.23 Third, logically, and as clearly
reflected in the case law and secondary sources that
we have set forth in part I of this opinion, liability for
negligent entrustment is founded on the right and power
of a defendant to permit or prohibit the use of the
purportedly entrusted chattel. A person can exercise
that degree of control only if that right to control is
exclusive or, if not, then superior to any coexisting right
of control held by the entrustee or by a third party. See
DeWester v. Watkins, 275 Neb. 173, 178, 745 N.W.2d
330 (2008) (‘‘if the actor does not have an exclusive or
superior right of control, no entrustment of the property
can occur’’ (internal quotation marks omitted)); see also
Bailey v. Advance America, Cash Advance Centers,
Inc., supra, 2016 WL 9281316, *4 (same); Johnson v.
Mers, supra, 279 Ill. App. 3d 379 (same); Bahm v. Dor-
manen, supra, 168 Mont. 412 (same); 65 C.J.S. 484,
Negligence § 157 (2010) (superior right to control is
‘‘essential element of a negligent entrustment cause of
action’’).
The undisputed evidence demonstrates that it was
Bargabos who was responsible for deciding whether to
allow a person to rent an airplane from Eagle View and
what the terms and conditions of that rental would be.
He required any potential pilot to present him with
a pilot certification and a medical certificate, and he
reviewed the pilot’s log book. Only after they had been
‘‘checked out’’ by Bargabos would he allow the pilot to
fly an Eagle View airplane. There is no evidence in
the record that this procedure was not followed with
respect to the defendant’s daughter or, as the plaintiffs
assert in their appellate brief, that the agreement
between the defendant and Bargabos allowed her to
have unrestricted access to Eagle View’s Cessna. To
the contrary, the undisputed evidence showed that,
after the defendant and Bargabos met, the Cessna at
issue was rented, without the defendant’s knowledge
and permission, by Eagle View to two other pilots in
the week prior to the crash. Such evidence evinces a
lack of exclusive or superior control over the Cessna by
the defendant. The defendant did not have unrestricted
authority, i.e., exclusive or superior control, to prevent
other parties from leasing the airplane or to bump them
if his daughter wanted to fly the plane. Further, Bar-
gabos made clear in his deposition testimony that the
only reason the defendant’s daughter was able to rent
the airplane on the date of the crash was because she
had called ahead to reserve it, adding that, if another
person had reserved the plane before her, she would
not have been able to use the plane on the day of the
crash. We agree with the defendant’s assertion in his
brief that ‘‘[i]t was Bargabos’ determination of [the
defendant’s daughter’s] competency [to fly], not [the
defendant’s] alleged rental of the plane, that made Eagle
View’s plane available to her, and this is dispositive.’’
The defendant did nothing more than facilitate his
daughter’s access to the airplane, which, as other courts
have held, is not enough to establish control for pur-
poses of establishing a claim of negligent entrustment.
The outcome of this case arguably might be different
if the evidence showed that the defendant rented the
airplane from Bargabos and Eagle View and, after tak-
ing personal or constructive possession of it, directly
allowed his daughter to pilot the plane, knowing she
was inexperienced or incompetent to fly. See Mejia v.
Erwin, supra, 45 Wn. App. 703 (‘‘a person renting or
leasing a car could negligently entrust it to another’’).
This simply is not the case here. The defendant never
had possession or control of the airplane himself and,
in fact, was unaware on the day of the crash that his
daughter was flying it or that the plaintiffs’ decedent
was a passenger.
The plaintiffs argue that § 390 of the Restatement
(Second) of Torts expressly states that ‘‘[o]ne who sup-
plies [a chattel] directly or through a third person . . .
is subject to liability’’ for negligent entrustment.
(Emphasis added.) 2 Restatement (Second), supra,
§ 390, p. 314. The plaintiffs suggest that we should view
Bargabos and Eagle View as merely third parties
through whom the defendant supplied his daughter with
an airplane. The plaintiffs’ argument, however, finds
no support in the Restatement itself, as none of the
illustrations provided in the commentary to § 390 con-
cerns a lessor or owner being treated as a third person
supplier for a lessee or user. Nothing in the commentary
to the rule supports the plaintiffs’ novel argument, nor
have the plaintiffs provided us with any case law from
this or any other jurisdiction that supports their inter-
pretation. We construe the phrase ‘‘third person’’ as
used in § 390 to mean someone who is simply acting
as a conduit for the entrustor rather than someone
such as Bargabos or an entity such as Eagle View that
exercises independent authority and control over the
chattel. For example, a person cannot avoid liability
for negligent entrustment if, rather than handing a
loaded gun directly to a young child, he or she instead
asks a friend to bring the gun to the child. In this sce-
nario, the person has supplied the gun ‘‘through a third
person.’’ The facts of the present case do not fall within
this type of example, and, accordingly, we reject the
plaintiffs’ reading of § 390.
The defendant in the present case had no more con-
trol over the ill-fated airplane than did the defendant
in Zetter v. Griffith Aviation, Inc., supra, 2006 WL
1117678. Like the defendant company in Zetter, which
had taken actions to arrange and pay for the pilot’s
access to the airplane that crashed, the defendant in
the present case took similar actions by arranging and
paying for his daughter’s general access to an airplane.
Moreover, as the District Court in Zetter concluded in
upholding the summary judgment in that case, the mere
fact that the defendant in the present case paid for and
arranged access to an airplane is insufficient as a matter
of law to establish the control necessary to be an
entrustor of that airplane. The plaintiffs have not sub-
mitted any evidence from which a trier of fact reason-
ably could find that the defendant ever exercised con-
trol over who had access to the Cessna involved in the
crash. See Zetter v. Griffith Aviation, Inc., supra, 2006
WL 1117678, *1, 15. When, on September 20, 2015, the
defendant’s daughter was granted access to the air-
plane, it was in the possession of its owner Eagle View
and was located at the Hamilton Municipal Airport.
The defendant, on the other hand, was at his home
in Ridgefield and was not contacted by his daughter,
Bargabos, or Eagle View before Bargabos and Eagle
View permitted her to take the airplane. Put simply, the
defendant did not have the power to permit or prohibit
the use of the property, he did not exercise any such
power on September 20, 2015, and, thus, there was
no ‘‘basis for liability under the doctrine of negligent
entrustment . . . .’’ 57A Am. Jur. 2d, supra, § 302, p. 397.
In sum, we conclude that there was no genuine issue
of material fact that the defendant, on September 20,
2015, lacked the necessary control over the airplane
for a trier of fact to find that he had ‘‘entrusted’’ it to
his daughter, and, therefore, he was entitled to summary
judgment as a matter of law on the negligent
entrustment count. We deny the plaintiffs’ claims to the
contrary.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In addition to bringing this action against James Depuy in his individual
capacity, the plaintiffs also brought suit against him and his wife, Cathleen
Wright, in their capacities as coadministrators of the estate of Cathryn
Depuy. Also named as additional defendants were Aircraft Spruce & Spe-
cialty Company; Kelly Aerospace Power Systems, Inc., and its successor in
liability, Kelly Aerospace Energy Systems, LLC; Bargabos Earthworks, Inc.,
doing business as Eagle View Flight; and Eagle View Flight’s owner and
manager, Richard O. Bargabos. Because James Depuy is the sole defendant
participating in the present appeal, we refer to him throughout this opinion
as the defendant and to the other parties by name.
Furthermore, because counts five and six were the only counts of the
operative complaint brought against James Depuy individually, the summary
judgment rendered on those counts is immediately appealable. See Practice
Book § 61-3 (‘‘[a] judgment disposing of only a part of a complaint, counter-
claim or cross complaint is a final judgment if that judgment disposes of
all causes of action in that complaint, counterclaim or cross complaint
brought by or against a particular party or parties’’); see also Kelly v. New
Haven, 275 Conn. 580, 594–96, 881 A.2d 978 (2005).
2
The plaintiffs do not raise any challenge in the present appeal regarding
the court’s rendering of summary judgment in favor of the defendant on
the negligence count.
3
The plaintiffs also argue on appeal that a genuine issue of material fact
exists regarding another element of negligent entrustment, namely, whether
the defendant knew or should have known that his daughter’s inexperience
and lack of training as a pilot posed an unreasonable risk of harm to a third
party. Because we conclude as a matter of law that the defendant lacked
the requisite control over the airplane to impose a duty of care under a
negligent entrustment theory of liability, and because that conclusion is
dispositive of the present appeal, we do not reach this additional argument.
4
The defendant disputes that he reached any formal agreement with
Bargabos or that he had any possessory interest, as lessee or otherwise, in
the Cessna 150H that crashed. The defendant describes his encounter with
Bargabos as a ‘‘chance meeting . . . .’’ The plaintiffs, however, in their
opposition to the motion for summary judgment, reference a November 9,
2017 sworn affidavit by Bargabos that was included as an exhibit to the
motion for summary judgment, in which he avers that, during this August
23, 2015 meeting with the defendant, they ‘‘reached an agreement whereby
[Eagle View] would provide instruction and familiarization training to the
[defendant’s daughter] and the rental of a Cessna 150H airplane from [Eagle
View] to be piloted by [the defendant’s daughter] for flight in New York.
The agreement was verbal and not reduced to writing.’’
Bargabos and Eagle View, in sworn responses to interrogatories that are
also part of the summary judgment record, provided the following additional
information regarding the disputed August 23, 2015 agreement between
Bargabos and the defendant: ‘‘It was agreed that [the defendant’s daughter]
would bring with her on her first appointment with [Bargabos and Eagle
View] a retainer of $1000 for payment of the services and rental to be
rendered. On August 29, 2015, August 30, 2015, and [September] 2, 2015, [the
defendant’s daughter] appeared at Eagle View’s office where she engaged
in preflight inspection of the Cessna 150H airplane, ground training, and
familiarization flight, and also flew solo on August 30. [The defendant’s
daughter] did not bring with her the $1000 retainer check on these dates.
On September 3, 2015, [Eagle View] received a check from [the defendant]
in the amount of $[1000] as the retainer for payment for flight instruction
and plane rental.’’
5
Bargabos testified during a videotaped deposition that he did not use a
written rental agreement form in leasing Eagle View’s aircrafts to pilots.
Specifically, he stated that ‘‘I don’t have them fill out any paperwork neces-
sarily, but . . . I do require them to present their pilot certification, medical
certificate, and a review of their log book. Once they’ve been checked out
. . . then they would just schedule the airplane either with myself or one
of the employees.’’ When asked what he meant by ‘‘checked out,’’ Bargabos
responded: ‘‘Well, if they’re not a pilot that I’ve trained or flown with before,
then I would require them to fly with me to be evaluated for proficiency,
and familiarization with the systems, and the flying characteristics of the
particular airplane that they’re going to rent to be certain that they’re profi-
cient and qualified.’’ Bargabos then was asked who from Eagle View was
responsible in 2015 for making the decision that it was acceptable to rent
a plane to a given customer, to which he responded, ‘‘it was me.’’
6
In its memorandum of decision, the trial court stated that, ‘‘[o]n or about
May 29, 2012, the defendant Aircraft Spruce & Specialty Company had sold
an overhauled replacement carburetor to Bargabos and, in turn, Bargabos
caused such carburetor to be installed in the Cessna 150H airplane that [the
defendant’s daughter] was piloting at the time of her death.’’ One of the
plaintiffs’ theories is that the crash was caused by a defect in the carburetor.
The final report issued by the National Transportation Safety Board, although
not expressly foreclosing that theory, states the following regarding its
findings as to the probable cause of the crash: ‘‘The pilot’s failure to maintain
airspeed and her exceedance of the airplane’s critical angle-of-attack, which
led to an aerodynamic stall, following a total loss of engine power for reasons
that could not be determined because postaccident examination of the
airframe and engine did not reveal any anomalies that would have precluded
normal operation.’’
7
Prior to granting the motion for summary judgment in favor of the
defendant, the trial court granted a motion to dismiss the count brought
against Aircraft Spruce for lack of personal jurisdiction. The plaintiffs filed
an appeal from that ruling, which our Supreme Court transferred to its own
docket pursuant to Practice Book § 65-2 The Supreme Court heard oral
argument on that appeal on March 25, 2022.
8
Although the plane crash at issue occurred in New York, the parties did
not raise a choice of law issue before the trial court, instead agreeing that
no outcome determinative conflict exists between the laws of New York
and Connecticut with respect to the issues raised in the motion for summary
judgment. ‘‘When the applicable law of a foreign state is not shown to be
otherwise, we presume it to be the same as our own.’’ (Emphasis added.)
Walzer v. Walzer, 173 Conn. 62, 76, 376 A.2d 414 (1977). Furthermore, any
choice of law claim not raised in the trial court in a timely manner is deemed
to be waived in a subsequent appeal. See Harty v. Cantor Fitzgerald & Co.,
275 Conn. 72, 90, 881 A.2d 139 (2005). Because no choice of law issue was
raised before the trial court, we apply Connecticut law.
9
Although parents are deemed to have a special relationship with their
minor children from which a duty of care to them and others may arise;
see 2 Restatement (Second), Torts § 316, p. 123 (1965); with limited excep-
tions not relevant here, no such duty exists between parents and their
emancipated adult children. See, e.g., annot., 25 A.L.R. 5th 1, 13, § 2 [b] (1994)
(‘‘[c]ourts . . . rarely find justification for imposing liability on parents for
the conduct of their adult, emancipated children and hold that [if] there is
no legal right to control the children, there can be no liability imposed on
the parent’’).
10
In Soto, administrators of the estates of nine of the decedents in the
2012 Sandy Hook school shooting filed an action against the manufacturers,
distributors, and sellers of the assault rifle used by the shooter. Soto v.
Bushmaster Firearms International, LLC, supra, 331 Conn. 65. The adminis-
trators sought damages and injunctive relief, alleging, among other causes
of action, negligent entrustment of the firearm. Id., 66–68. The trial court
granted the defendants’ motion to strike the complaint in its entirety, and
the administrators appealed. Id., 67–69. Our Supreme Court agreed with the
trial court that the administrators ‘‘ha[d] not pleaded a legally sufficient
cause of action in negligent entrustment under our state’s common law
. . . .’’ Id., 76.
11
As indicated by the court in Soto, courts in Connecticut, prior to the
decision in Turner, already had determined that a person who entrusted a
dangerous item to another could be held liable for resulting third-party
injuries. See Soto v. Bushmaster Firearms International, LLC, supra, 331
Conn. 79–80. Those courts, however, had applied a traditional common-law
negligence analysis, rather than analyzing the matter ‘‘under the rubric of
negligent entrustment . . . .’’ Id., 79. The court in Soto cited Wood v. O’Neil,
90 Conn. 497, 500, 97 A. 753 (1916), which held that ‘‘no cause of action in
negligence could be maintained against the parents of a fifteen year old boy
who accidentally shot a companion with a shotgun because the parents, in
permitting the boy to use the gun, had no specific knowledge that he was
possessed of a marked careless disposition.’’ (Emphasis added; internal
quotation marks omitted.). Soto v. Bushmaster Firearms International,
LLC, supra, 79. As one treatise explains: ‘‘Once the duty of care is imposed,
the negligent-entrustment case is an ordinary negligence case to which all
the principles of negligence law apply.’’ See 2 D. Dobbs, The Law of Torts
(2d Ed. 2001) § 330, p. 893.
12
‘‘In Greeley, the plaintiff alleged that the defendant had been negligent
in entrusting his car to an unlicensed driver, who subsequently caused an
accident while attempting to pass the plaintiff’s vehicle. . . . [Although]
liability cannot be imposed [on] an owner merely because he [e]ntrusts [his
automobile] to another to drive [on] the highways, the court explained, [i]t
is . . . coming to be generally held that the owner may be liable for injury
resulting from the operation of an automobile he loans to another [if] he
knows or ought reasonably to know that the one to whom he [e]ntrusts it
is so incompetent to operate it, by reason of inexperience or other cause,
that the owner ought reasonably to anticipate the likelihood that in its
operation injury will be done to others.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Soto v. Bushmaster Firearms Interna-
tional, LLC, supra, 331 Conn. 79–80.
13
We note that the defendant in Greeley undisputedly was a joint owner
of the automobile that caused the plaintiff’s injuries. As courts in other
jurisdictions have recognized, however, the legal ownership of an entrusted
instrumentality should not be mistakenly viewed as an element of a cause
of action for negligent entrustment. See, e.g., DeWester v. Watkins, 275 Neb.
173, 177–80, 745 N.W.2d 330 (2008) (overruling prior case law in Nebraska
that, in setting forth elements of cause of action for negligent entrustment
of automobile, used language that implied that only owner of automobile
could be found liable under theory of negligent entrustment).
As set forth in § 308 of the Restatement (Second) of Torts, which we will
discuss subsequently in this opinion, it is the defendant’s control over the
instrumentality, not legal ownership thereof, that is key to a determination
of liability for negligent entrustment. We find the following statement by
the Supreme Court of Nebraska in DeWester persuasive regarding this point:
‘‘[T]he overwhelming majority of courts to have analyzed the issue have
concluded that a nonowner who has control of a vehicle can be held liable
for negligently entrusting the vehicle. Certificates of title and other incidents
of legal ownership are often documents of convenience, rather than reflec-
tions of the actual possession and control of a vehicle. And the basis for
liability under the doctrine of negligent entrustment is the power to permit
and prohibit the use of the entrusted chattel, which need not arise from
legal ownership. Holding otherwise produces the paradox that even the
grossest negligence can be insulated from liability, so long as the person
deciding who can drive a car is not the person who legally owns it.’’ (Empha-
sis added; footnotes omitted.) Id., 178–79.
Because we agree with the logic of the foregoing statement, it is prudent
for this court to caution against construing the court’s language in Soto
regarding ‘‘the elements of a cause of action sounding in negligent
entrustment of an automobile’’; Soto v. Bushmaster Firearms International,
LLC, supra, 331 Conn. 80; as limiting the scope of liability for negligent
entrustment of an automobile to only the owner of an automobile.
14
Section 308 of the Restatement (Second) of Torts provides: ‘‘It is negli-
gence 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.’’ 2 Restatement (Second), supra, § 308, p. 100. Comment (a) to
§ 308 further provides: ‘‘The words ‘under the control of the actor’ are used
to indicate that the third person is entitled to possess or use the thing or
engage in the activity only by the consent of the actor, and that the actor
has reason to believe that by withholding consent he can prevent the third
person from using the thing or engaging in the activity.’’ Id., comment (a),
p. 100.
15
Section 390 of the Restatement (Second) of Torts 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.’’ 2 Restatement (Second), supra, § 390,
p. 314.
16
Ultimately, the court in Soto decided that ‘‘[t]he rule that a cause of
action for negligent entrustment will lie only when the entrustor knows or
has reason to know that the direct entrustee is likely to use a dangerous
instrumentality in an unsafe manner would bar the plaintiffs’ negligent
entrustment claims.’’ Soto v. Bushmaster Firearms International, LLC,
supra, 331 Conn. 81. The direct entrustee in Soto was not the school shooter
but the shooter’s mother, and no allegation had been made ‘‘that there was
any reason to expect that [the shooter’s] mother was likely to use the rifle
in an unsafe manner.’’ Id.17
Statutes deemed ‘‘in pari materia’’ pertain to the same general subject
matter and are ‘‘closely enough related to justify interpreting one in light
of the other.’’ 2B N. Singer & S. Singer, Sutherland Statutory Construction
(7th Ed. 2008) § 51:3, pp. 240–41.
18
Logically, a defendant cannot ‘‘entrust’’ an instrumentality, and poten-
tially be subject to liability for doing so negligently, if he or she lacked the
ability to exercise a right to control that instrumentality that exceeds that
of the entrustee or a third party.
19
There are relatively few cases applying principles of negligent
entrustment in the context of airplanes, especially ones in which the court
had been called on to analyze what constitutes control over an airplane
sufficient to deem someone an entrustor or supplier of the airplane. Rather,
in most cases that we have found involving an alleged negligent entrustment
of an airplane, the contested issue is most often whether the defendant had
knowledge of a pilot’s incompetence, inexperience, or recklessness, not
whether the defendant supplied or entrusted to the pilot the airplane that
later crashed.
Airplanes are vehicles used for transportation that, although potentially
dangerous, are not inherently so. In that regard, an airplane is similar to an
automobile. See, e.g., Garland v. Sybaris Club International, Inc., 21 N.E.3d
24, 46 (Ill. App. 2014) (‘‘[l]ike an automobile, an airplane is not inherently
dangerous, but may become so if operated by a pilot who is incompetent,
inexperienced, or reckless’’), cert. denied, 23 N.E.3d 1200 (2015), and cert.
denied, 23 N.E.3d 1200 (2015), and cert. denied, 23 N.E.3d 1200 (2015); see
also Cosey ex rel. Hilliard, Docket No. 2019-785, 2020 WL 6687515, *15–16
(La. App. November 12, 2020) (agreeing with case law from other states
that airplanes are not inherently dangerous instrumentalities), writ denied,
312 So. 3d 1097 (La. 2021). In resolving the present appeal, therefore, it is
appropriate for us to consider and rely on case law discussing negligent
entrustment of both airplanes and automobiles. See Garland v. Sybaris
Club International, Inc., supra, 46; Cosey ex rel. Hilliard, supra, *15–16;
see also Hubbard v. Pacific Flight Services, Inc., Docket No. C046617, 2005
WL 2739818, *4 (Cal App. October 25, 2005) (applying precedent concerning
negligent entrustment of automobile to entrustment of private plane).
20
The court also affirmed the rendering of summary judgment on the
alternative ground that, although there was evidence that the driver had
had multiple speeding violations and prior motor vehicle accidents as a
teenager, there was no evidence from which to conclude that the father
was or should have been aware that his son’s driving was ‘‘not satisfactory,
much less reckless, heedless, or incompetent . . . because [the son] was
emancipated and not living in his parents’ home at the time he received the
traffic citations and was involved in the accidents . . . .’’ (Internal quotation
marks omitted.) Mejia v. Erwin, supra, 45 Wn. App. 704.
21
According to Johnson, ‘‘both [the officer] and Johnson had attended a
fundraiser at [a local restaurant] where [the officer] consumed several alco-
holic beverages. [The officer] quarreled with Johnson, and Johnson left and
returned to his mobile home. After a short time, [the officer] also left and
returned to Johnson’s mobile home. Their quarrel continued, and [the officer]
drew her service revolver and fired several shots into the ceiling. Both [the
officer] and Johnson then allegedly struggled with the revolver, whereupon
[the officer] shot Johnson in the head, causing permanent injuries.’’ Johnson
v. Mers, supra, 279 Ill. App. 3d 375. Johnson filed a personal injury action,
raising claims against the officer, the restaurant, and the town in which the
officer was employed. Id.22
The plaintiffs argue in their appellate brief that the trial court improperly
adopted the defendant’s version of the facts surrounding their meeting at
the Hamilton Municipal Airport. Even if we agreed with this contention, it
is important to remember that we review de novo the summary judgment
record to determine whether summary judgment properly was rendered.
Accordingly, the trial court’s recitation of the underlying facts has no bearing
on our review.
23
For this same reason, the court’s decision in Prior v. Lang, Docket No.
CV-07-5001248S, 2009 WL 1532526 (Conn. Super. May 7, 2009), on which
the plaintiffs place substantial reliance, is similarly inapposite.