DocketNumber： No. 106,429
Citation Numbers： 297 Kan. 524, 302 P.3d 375
Judges： Johnson, Rosen
Filed Date： 6/7/2013
Status： Precedential
Modified Date： 9/8/2022
The opinion of the court was delivered by
According to the amended petition Jerry L. Martell, as conservator for Kim “Travis” Driscoll (collectively referred to as “Driscoll”), filed against Leroy Driscoll (Leroy) and other named defendants, Leroy allowed Driscoll to drive a car belonging to Leroy and others, knowing that Driscoll was incapable of safely driving tire car. Driscoll subsequently got into a car accident with another vehicle, which resulted in injuries to Driscoll. Driscoll later
Facts
The amended petition Driscoll filed in this case alleges that on November 2, 2008, Driscoll was involved in a car accident in Jefferson County after he failed to yield the right-of-way to another vehicle while attempting to turn south onto U.S. Highway 59. As a result of this accident, Driscoll sustained serious injuries.
At the time of the accident, the car Driscoll was driving was titled in Leroy’s name. Leroy also maintained insurance for the vehicle. Driscoll alleged that Leroy had permitted him to use the car despite being aware that Driscoll’s driver’s license was suspended, Driscoll had a past histoiy of alcohol abuse and drank alcohol on a daily or nearly daily basis, he had received multiple DUIs, and he was a known reckless or incompetent person incapable of safely operating the vehicle.
In August 2010, Driscoll filed a lawsuit in Leavenworth County District Court against Leroy, Sandra Driscoll, and Becky Mullins, claiming that all three of them had a superior or exclusive right to control the vehicle and that they had negligently entrusted the vehicle to Driscoll. Within the same lawsuit, Driscoll also filed a negligence claim against Dorothy McHardie, the driver of the other vehicle involved in the accident. The case was subsequently transferred to the Jefferson County District Court.
Driscoll filed a response to the motion to dismiss, arguing that the Restatement (Second) of Torts § 390 (1964) and cases from other jurisdictions endorse the validity of a first-party negligent entrustment action. Furthermore, Driscoll argued that Kansas’ system of modified comparative fault would not bar his claim as a matter of law because apportioning fault to the parties is a question of fact, making the determination improper on a motion to dismiss for failure to state a claim. Driscoll also argues that because Leroy provided him with an automobile in violation of K.S.A. 8-264 (“No person shall authorize or knowingly permit a motor vehicle owned by him or her under such person’s control to be driven upon any highway by any person who is not licensed under the provisions of this act.”), Kansas public policy should be construed as allowing Leroy to be held hable for any damages resulting from his negligent entrustment.
“A notice of appeal that complies with K.S.A. 60-2103(b)—filed after a judge of the district court announces a judgment to be entered, but before the actual entry of judgment—is effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part of the judgment from which the appeal is taken with sufficient certainty to inform all parties of the ruling to be reviewed on appeal.”
On June 29, 2011, the district court filed its journal entry granting Leroy’s motion to dismiss. Subsequently, on July 19, 2011, Driscoll filed a motion requesting that the district court certify its journal entry as a final judgment under K.S.A. 2011 Supp. 60-254(b). See K.S.A. 2011 Supp. 60-254(b) (When multiple parties are involved in a lawsuit, “the court may direct entry of a final judgment as to one or more, but fewer than all, . . . parties only if the court expressly determines that there is no just reason for delay.”) On that same day, the district court issued an order certifying its decision as a final judgment under K.S.A. 2011 Supp. 60-254(b).' This court later granted Driscoll’s motion to transfer his appeal to this court.
Analysis
Driscoll argues that the district court erred in dismissing his claim against Leroy for negligent entrustment. Driscoll contends that a person who negligently entrusts a motor vehicle to another (who is then injured while using the vehicle) can be held liable under Kansas law for the entrustee’s injuries. Leroy counters by arguing that Kansas law does not recognize a first-party negligent entrustment claim. In the alternative, he argues that if such a claim exists under Kansas law, Driscoll’s negligence in operating the vehicle—as evidenced in his petition—would prevent him from recovering damages based on Kansas’ modified comparative fault system. See K.S.A. 60-258a(a) (plaintiff cannot be awarded damages
Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. The appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiff s theory or any other possible theory. Campbell v. Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 (2011).
Negligent Entrustment
Under Kansas law, a claim of negligent entrustment may be “based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver.” McCart v. Muir, 230 Kan. 618, 620, 641 P.2d 384 (1982). “An incompetent driver is one who, by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.” 230 Kan. at 620. These statements of law are consistent with how the Restatement (Second) of Torts § 390 describes a negligent entrustment claim:
“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 suppher should expect to share in or be endangered by its use, is subject to lability for physical harm resulting to them.”
In Priestly v. Skourup, 142 Kan. 127, 130, 45 P.2d 852 (1935)— one of the first Kansas cases to recognize a tort claim based on a negligent entrustment theory—the court quoted with approval from Restatement (First) of Torts § 390 (1934); see also Pennington v. Davis-Child Motor Co., 143 Kan. 753, 755-56, 57 P.2d 428 (1936) (quoting with approval Restatement [First] of Torts § 390).
The language of Restatement (Second) of Torts § 390 establishes that a supplier of a chattel has a duty not to give control of the chattel to a person whom the supplier knows or has reason to know is incompetent or incapable of properly using the chattel. Cf. Gragg v. Wichita State Univ., 261 Kan. 1037, Syl. ¶ 8, 934 P.2d 121 (1997) (“An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.”)- Restatement (Second) of Torts § 390, Comment b, explains that the supplier of a chattel may not assume that a person will conduct himself or herself properly if the facts which are known or should be known to the supplier indicate that the person is unlikely to do so while using the chattel:
“fO]ne who supplies a chattel for the use of another who knows its exact character and condition is not entitled to assume that the other will use it safely if the supplier knows or has reason to know that such other is likely to use it dangerously, as where the other belongs to a class which is notoriously incompetent to use the chattel safely, or lacks the training and experience necessary for such use, or the supplier knows that the other has on other occasions so acted that the supplier should realize that the chattel is likely to be dangerously used, or that the other, though otherwise capable of using die chattel safely, has a propensity or fixed purpose to misuse it. This is true even diough the chattel is in perfect condition, or though defective, is capable of safe use for the purposes for which it is supplied by an ordinary person who knows of its defective condition.” Restatement (Second) of Torts § 390, Comment b.
Restatement (Second) of Torts § 390, Comment c, further explains a supplier s liability under a negligent entrustment theory:
“The rule stated in tiiis Section sets out die conditions under which a supplier of a chattel is subject to liability. As always this phrase denotes that a supplier is hable 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 diere-*531 for. 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 usualy in such contributory fault as to bar recovery. If, however, the person to whom the chattel is suppled 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 suppler knows that the condition of the person to whom the chattel is suppled 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 lable for harm sustained by the incompetent although such person deals with it in a way which may render him lable to third persons who are also injured.” Restatement (Second) of Torts § 390, Comment c.
The language of Comment c clearly envisions an entrustee being able to sue his or her entrustor for negligent entrustment. Such a claim {i.e., a first-party negligent entrustment claim) is described in Illustration 7 to § 390:
“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 llcely that they will mismanage the boat so as to capsize it or to collde with other boats. B and C by their drunken mismanagement collde 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 die estates of B and C may also be liable for the death of D.” Restatement (Second) of Torts § 390, Illustration 7.
Under this illustration, B and C are the entrustees. Along with D (a third party), B and C have individual causes of action against A, the entrustor, based on negligent entrustment.
A review of our prior cases shows that a negligent entrustment claim is typically brought by a third party who was injured by an entrustee and seeks recoveiy for his or her damages from the en-trustor. See, e.g., Fogo, Administratrix, v. Steele, 180 Kan. 326, 304 P.2d 451 (1956) (mother held responsible for negligence of her 20-year-old son by permitting him to drive her car knowing he was an incompetent driver); Priestly, 142 Kan. at 132 (“[T]he owner of an automobile, who lends it to one he knows to be an incompetent, careless and reckless driver, or had reasonable cause to know him to be such, is guilty of negligence in permitting such party to use, drive, or operate the same along the public streets of a city, and is liable to third parties injured by such driver in the negligent op
In Greenwood v. Gardner, 189 Kan. 68, 366 P.2d 780 (1961), the defendant took his 10-year-old grandson for an automobile ride out in the country. During the ride, the defendant pulled the vehicle over and requested that the child drive the vehicle. The child got behind the steering wheel and started driving, while the defendant sat in the passenger seat. The child drove the vehicle south for 4 miles until he came to a blind intersection. As the child proceeded to drive the vehicle into the intersection, the vehicle stalled and was struck by a westbound vehicle, causing severe injuries to the child.
The child, by and through his mother, sued his grandfather and the driver of the westbound vehicle. The child alleged that his grandfather was negligent in allowing him to drive the vehicle knowing that he was a child “of such a very tender age as not to comprehend the risks and hazards of driving an automobile, and how to react and conduct himself when placed in a position of danger.” 189 Kan. at 70. The defendant filed a demurrer to the child’s petition, arguing that the petition failed to sufficiently assert that the defendant’s acts were the proximate cause of the car accident. The district court overruled the defendant’s demurrer, and this court affirmed, holding that the petition sufficiently stated a cause of action and that the issue of proximate causation was a jury question. 189 Kan. at 71-72.
Based on Restatement (Second) of Torts § 390 and our decision in Greenwood, we conclude that a first-party negligent entrustment claim is a viable claim under Kansas law. Additionally, we conclude that based on die cases cited above and § 390, a negligent entrustment claim has four elements: (1) an entrustment of a chattel, (2) to an incompetent entrustee, (3) with knowledge or reason to know of the entrustee’s incompetence and, (4) the entrustee’s incompetence while using the chattel is die cause in fact of injury or damage to the entrustee and/or another.
In his petition, Driscoll alleged that (1) Leroy permitted him to use a car (titled and insured under Leroy’s name) that Leroy had
We now determine whether Kansas’ comparative fault system would bar Driscoll from recovering damages from Leroy based on the facts alleged in the petition.
The Effect of a Comparative Fault System on a First-Party Negligent Entrustment Claim
A review of cases from other jurisdictions shows that in states where a system of pure comparative fault has been adopted (i.e., plaintiff is entitled to damages even if he or she is found to be more at fault than the defendant, but damages awarded will be reduced by percentage of fault attributable to plaintiff) courts have relied on Restatement (Second) of Torts § 390 in concluding that a plaintiff may bring a first-party negligent entrustment claim against his or her entrustor, even if the facts clearly show that the plaintiff was negligent in operating the vehicle. See Blake v. Moore, 162 Cal. App. 3d 700, 707, 208 Cal. Rptr. 703 (1984) (based on Restatement (Second) of Torts § 390, court held entrustee-plaintiff was entitled to a comparative fault trial that would “result in a weighing of defendant’s fault in entrusting his car to plaintiff with knowledge of the intoxication, and the fault of plaintiff in drinking and then driving”); Gorday v. Faris, 523 So. 2d 1215, 1219 (Fla. Dist. App. 1988) (based on Restatement (Second) of Torts § 390 and Blake, court concluded that action was “properly maintainable under the ’negligent entrustment’ theory, and that tire evidence tending to
In jurisdictions where contributory negligence is the rule (i.e., any amount of fault attributable to the plaintiff bars him or her from recovering damages), courts have recognized the validity of a first-party negligent entrustment cause of action under Restatement (Second) of Torts § 390 but have concluded that the negligence attributable to the entrustee ultimately defeats such a claim. See, e.g., Keller v. Kiedinger, 389 So. 2d 129, 133 (Ala. 1980); Meachum v. Faw, 112 N.C. App. 489, 494, 436 S.E.2d 141 (1993) (holding that “a bailee may bring an action for negligent entrustment against the bailor but that such an action is subject to the defense of contributory negligence”); see also 57A Am. Jur. 2d, Negligence § 313, p. 371 (“[Generally an entrustee may bring an action to recover for physical harm to himself or herself resulting from a negligent entrustment. Thus a bailee may bring action for negligent entrustment against a bailor. However, such an action may be subject to the defenses of comparative negligence or contributory negligence.”).
Kansas adopted the doctrine of comparative fault in 1974, which requires Kansas courts to reduce an award for damages in propor
“The contributory negligence of any party in any civil action does not bar such party or such party’s legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if such party’s negligence was less tiran the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party.”
See Wisker v. Hart, 244 Kan. 36, 40-41, 766 P.2d 168 (1988).
Leroy maintains that the facts alleged in Driscoll’s amended petition establish as a matter of law that Driscoll was at least 50 percent at fault for the car accident. Accordingly, Leroy argues that Kansas’ system of comparative fault should bar Driscoll from recovering damages based on a negligent entrustment theory. Leroy cites Lydia v. Horton, 355 S.C. 36, 583 S.E.2d 750 (2003), a case where the South Carolina Supreme Court concluded that based on its modified comparative negligence system, an intoxicated adult motorist was barred from recovering damages under a first-party negligent entrustment theory. In Lydia, die plaintiff s petition alleged that he was intoxicated when the defendant allowed him to borrow his car and that the defendant knew or should have known that the plaintiff was not competent to operate the vehicle. The plaintiff ultimately wrecked the car in a single-vehicle accident that rendered the plaintiff a quadriplegic.
The plaintiff brought a first-party negligent entrustment action against the defendant. The trial court granted the defendant’s motion for judgment on the pleadings, holding that the plaintiff s admitted negligence (as indicated in his petition) precluded any recovery on his part because, under South Carolina’s modified comparative negligence system, his negligence, as a matter of law, outweighed the defendant’s negligence. The South Carolina Court of Appeals reversed and remanded, holding that a first-party negligent entrustment claim could be brought pursuant to Restate
In answering the question in the affirmative, the Lydia court first noted that Restatement (Second) of Torts § 390 provides several illustrations of when a negligent entrustment claim arises and that only one illustration (the previously cited Illustration 7) refers to a first-party claim. But the court concluded that a “pure” first-party claim could not be “extrapolated from the illustration” because the example involved “a lessee/lessor relationship” where a third-party was injured. The Lydia court concluded that these facts made the illustration distinguishable enough to be inapplicable to its case. 355 S.C. at 39. Regardless, the Lydia court ultimately declined to adopt Reinstatement (Second) of Torts § 390 based on the facts presented in that case. 355 S.C. at 40 n.2, 43.
After rejecting Restatement (Second) of Torts § 390, the Lydia court noted that under South Carolina’s modified comparative negligence system, “a plaintiff is barred from recovery if his negligence outweighs the defendant’s.” 355 S.C. at 40. The Lydia court then proceeded to state that South Carolina’s
“modified comparative negligence system also bars an intoxicated adult’s recovery on a first party negligent entrustment cause of action. We cannot imagine how one could be more than fifty percent negligent in loaning his car to an intoxicated adult who subsequently injured himself. We agree with the trial judge that [the plaintiff s] admission that he was ‘appreciably impaired’ and that he lost control of the vehicle supports only one conclusion, that [the plaintiffs] negligence exceeded [the defendant’s].” Lydia, 355 S.C. at 40.
In contrast to Lydia, the Colorado Supreme Court concluded that its modified comparative negligence system did not bar a voluntarily intoxicated driver from suing his or her entrustor under a first-party negligent entrustment action theoiy. In Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992), an employer entrusted a vehicle to an employee to drive to and from an out-of-town worksite. On the day the employee was set to return home, he consumed alcohol at the worksite and with his employer and coworkers during lunch, and the employer was aware the employee intended to consume
The Colorado Supreme Court granted review and began its analysis by determining whether the employer owed a duty to the employee. The court noted that Restatement (Second) of Torts § 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.” 829 P.2d at 358. The court also noted that Illustration 7 of § 390 indicated that the “framers of section 390 specifically envisioned its application to cases of intoxicated entrustees.” 829 P.2d at 358. The court stated:
“The rationale underlying 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. [Citation omitted.] The same logic supports a duty to take reasonable action to terminate the entrustment if the entrustor acquires information that such an unreasonable risk exists or has come into being after the entrustment and the entrustor has the legal right and ability to end the entrustment. We conclude that such a duty is encompassed within the doctrine of negligent entrustment.” 829 P.2d at 360-61.
In concluding that “an entrustee is entitled to a comparative fault trial despite his own negligence in becoming intoxicated,” the Casebolt court cited to Colorado’s comparative negligence statute, Colo. Rev. Stat. § 13-21-111(1) (1987), which, like K.S.A. 60-258a, establishes a modified comparative negligence system. The Colorado statute currently states:
*538 “Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made.” (Emphasis added.) Colo. Rev. Stat. § 13-21-111(1) (2012).
Ultimately, the Casebolt court reversed the district court’s entry of summary judgment in favor of the employer, concluding that issues of material fact existed as to whether the employer knew or had reason to know that the employee would be likely to use the vehicle in a manner involving unreasonable risk of physical harm to himself. 829 P.2d at 362-63. Thus, unlike the Lydia court, the Casebolt court refrained from deciding as a matter of law that an entrustee’s intoxication would always render him or her more negligent than the entrustor, barring the entrustee from recovering against the entrustor under a modified comparative fault system. For the Casebolt court, assigning fault to the parties remained an issue of fact left to the trier of fact to resolve.
We find that several aspects of the Lydia decision make it unpersuasive and that the decision reached in Casebolt is consistent with Kansas law. First, the Lydia court refused to adopt Restatement (Second) of Torts § 390, but we have concluded that § 390 is consistent with our caselaw and, thus, have explicitly adopted it. Second, though the Lydia court was correct in noting that Illustration 7 of § 390 is the only reference to a first-party negligent entrustment action, its conclusion that a pure first-party claim cannot be extrapolated from the illustration is troubling.
The Lydia court believed that because the illustration involved a lessee/lessor relationship where a third-party was injured, the illustration was inapplicable to the facts of its case. Lydia, 355 S.C. at 38-39. But the Restatement (Second) of Torts § 390, Comment a, states that the negligent entrustment rule recited in that section “applies to sellers, lessors, donors or lenders, and to all kinds of bailers, irrespective of whether the bailment is gratuitous or for a consideration.” Furthermore, the involvement of a third party in the accident had no bearing on determining tire entrustor’s liability
“We say that it is negligent to entrust a vehicle to an intoxicated person precisely because such an entrustment is likely to lead to a car accident, which is what actually occurred here. Assuming that the [entrustor’s] conduct constitutes a breach of the standard of care, the foreseeability of the [entrustee] (and his injury) ties the [entrustor’s] act to the harm done, thereby establishing a legal duty. [Citation omitted.] Here, the act of entrustment breached the standard of care, [citation omitted] and the foreseeabiliiy of the harm to [the entrustee] gave rise to the common law duty owed by [the entrustor].”
Finally, die Lydia court’s decision to treat the issue of assigning fault to the parties as a question of law conflicts with Kansas law. Determining the amount of fault attributable to the parties in a negligence action is generally a question of fact. See Honeycutt v. City of Wichita, 247 Kan. 250, 251, 796 P.2d 549 (1990) (The comparative fault of the parties is generally a fact question for the jury.); Moss v. Mamalis, 36 Kan. App. 2d 151, 158, 138 P.3d 380 (2006) (“[T]he comparative fault of the various parties is a question of fact not appropriate for summary judgment.”); Scales v. St. Louis-San Francisco Ry. Co., 2 Kan. App. 2d 491, 498, 582 P.2d 300, rev. denied 225 Kan. 845 (1978) (“[Ujnder the law of comparative negligence, allocation of each party’s proportionate negligence must be a question for the trier of fact.”); K.S.A. 60-258a(b) (“Where the comparative negligence of the parties ... is an issue, the jury shall return special verdicts, or in the absence of a jury, the court shall make special findings, determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants . . . .”); see also McCart, 230 Kan. at 623 (“The nature and extent
In St. Clair v. Denny, 245 Kan. 414, 417, 781 P.2d 1043 (1989), we recognized that there is an exception to treating comparative fault as a fact question:
“Usually, a determination of the presence or absence of negligence should be left to the trier of fact. Causation, like negligence, is also usually determined by a jury. [Citation omitted.] We have noted, however, that ‘[w]here no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination.’ [Citation omitted.]”
See also Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008) (“ ‘Only when tlie facts are such that [a] reasonable [person] must draw the same conclusion from them does the question of negligence become one of law for the court.’ ”).
In St. Clair, the action was for the wrongful death of plaintiff s decedent who was lulled, along with the defendant, in an intersection collision in which it was apparent that the defendant ran a stop sign and caused the accident. Because neither the decedent nor the defendant survived the accident and there were no witnesses to the accident, there was no evidence from which a jury could conclude that tire decedent was comparatively at fault. Thus, we upheld the district court’s directed verdict in favor of the plaintiff on the issue of liability. 245 Kan. at 416-20.
St. Clair is distinguishable because the facts alleged in Driscoll’s amended petition, along with the inferences reasonably drawn from the facts, establish that Leroy and Driscoll acted negligently and that their combined negligence resulted in the car accident. Driscoll alleged in his petition that he failed to yield the right-of-way to another vehicle, which resulted in the car accident. We stated in Bowman that “[although the violation of a traffic ordinance is not always an indication of negligence as a matter of law, this court has held that such a violation is almost always negligence when it is the proximate cause of an injury.” 286 Kan. at 865. With regard to Leroy, we have already concluded that Driscoll’s petition
Public Policy’s Effect on a First-Party Negligent Entrustment Claim
Leroy argues that Kansas public policy prevents an entrustor from being liable for an entrustee’s injuries resulting from the en-trustee’s negligent use of the entrustor’s chattel. Leroy contends that public policy does not impose a duty upon an entrustor to protect an entrustee from his or her own acts, especially in situations where the entrustee makes a voluntary decision to operate a chattel knowing he or she is incompetent to do so. Leroy points to Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992) (Kansas law does not provide a cause of action against a supplier of alcohol for the alcohol-related death of a minor patron); and Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985) (Kansas law does not provide a cause of action against suppliers of alcohol for injuries resulting from the torts of intoxicated patrons, even underage patrons), as reaching analogous holdings providing support for his public policy argument.
Leroy’s argument is unpersuasive considering that Kansas law recognizes a first-party negligent entrustment action—as evidenced by Greenwood v. Gardner, 189 Kan. 68, 366 P.2d 780 (1961), and our past and now current reliance on Restatement (Second) of Torts § 390, which clearly imposes a duty upon an entrustor not to supply a chattel to an entrustee whom the en-trustor knows or should know is likely to misuse the chattel in a manner causing unreasonable risk of harm to the entrustee and/or others. Furthermore, as already noted, our system of comparative fault does not automatically bar a negligent entrustee from recovery. If the facts of a case establish that an entrustor owed a duty of care to an entrustee and that duty was breached, then determining whether the entrustee is entitled to damages (i.e., whether the entrustee’s fault is less than entrustor’s fault) is a decision left to the trier of fact. This is true even when the entrustee made a
Finally, we reject Leroy’s contention that our decisions in Mills and Ling provide analogical support for his public policy argument. We concluded that no liability existed in Mills and Ling based on the traditional common-law rule establishing that suppliers of alcohol are not Hable for the alcohol-related injuries caused to and by their consumers. We also reached this conclusion based on tire legislature’s failure to reenact the Dram Shop Act after it was repealed in 1949. We viewed the legislature’s failure to reenact tire statute as signifying the legislature’s intent not to have dram shop liability in Kansas. See Mills, 251 Kan. at 437-43; Ling, 237 Kan. at 635-40. Because the holdings reached in Mills and Ling were based on the distinct historical background surrounding dram shop liability in Kansas, we will not read them broadly so as to apply to the context of this case. Cf. Berry v. National Medical Services, Inc., 292 Kan. 917, 922, 257 P.3d 287 (2011) (“In the context of finding duty in a negligence action, this court has found a contraiy public policy in only limited situations.”).
Conclusion
We conclude that (1) Kansas law recognizes a first-party negH-gent entrustment claim; (2) if an entrustor owed a duty of care to an entrustee and that duty was breached, tiren determining the parties’ comparative fault for the incident resulting in injuries to the entrustee is a question of fact for the jury to decide; and (3) Kansas public policy does not prevent an entrustor from being liable for an entrustee’s injuries that resulted from the entrustee’s negligent use of the entrustor’s chattel. Accordingly, we reverse the district court’s decision to dismiss Driscoll’s petition and remand for further proceedings.
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