Nonowner Negligent Entrustment of Vehicles

RE: Nonowner Negligent Entrustment of Vehicles

You asked for a copy and summary of Jordan v. Sabourin, 18 Conn. L. Rptr. 269 (Conn. Super. 1997).

In Jordan v. Sabourin, the Connecticut Superior Court held that a claim can be asserted against a nonowner of a vehicle for negligently entrusting it to another person, if the nonowner-entrustor had exclusive control over the vehicle vis-a-vis the entrustee. As the court observed, neither the Connecticut Supreme nor Appellate Courts have yet ruled on the validity of negligent entrustment claims against nonowners. In the instant case, the Superior Court granted the nonowner's motion to strike the claim, because the plaintiff's complaint failed to allege sufficient facts relating to the nonowner's control of the vehicle.

Defendant Sabourin became intoxicated, and while operating defendant Bates' car, struck and killed John Jordan. According to the complaint filed by the administratrix of Jordan's estate, Bates had given Sabourin and defendant Cudworth permission to use the car. Sabourin and Cudworth were at Cudworth's residence, repairing Cudworth's Chevrolet Blazer. In Cudworth's presence, Sabourin consumed alcoholic beverages. To enable Sabourin to obtain materials to repair the Blazer, Cudworth entrusted to Sabourin Bates' car. Count three of the complaint alleged that Jordan's death was caused by Cudworth's negligence in entrusting Sabourin with Bate's car when he knew, or should have known, that Sabourin consumed enough alcoholic beverages to impair his driving ability.

The administratrix of Jordan's estate filed a five count complaint against Sabourin, Bates, and Cudworth. Cudworth filed a motion to strike the negligent entrustment count, asserting that Connecticut does not recognize a cause of action for negligent entrustment of a vehicle by a nonowner. He alternatively argued that the complaint failed to allege that Cudworth had sufficient control over the vehicle to support negligent entrustment liability.

The court concluded that under Connecticut law, a negligent entrustment claim may be asserted against a nonowner of a vehicle. The court based its conclusion on Greeley v. Cunningham, 116 Conn. 515 (1933), the Restatement (Second) of Torts, and several Superior Court cases that relied on them. In Greeley, the Connecticut Supreme Court recognized a cause of action against an owner. Greeley adopted the approach set forth in § 390 of the Restatement, which provides,

'[o]ne 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.'

The court observed that in Morin v. Keddy, 10 Conn. L. Rptr. 281 (Super. Ct. 1993) the court relied on the Restatement definition to impose liability on nonowners. Apparently, the court concluded in that case that Greeley's invocation of the Restatement supported the proposition that Connecticut law does not preclude recovery against a nonowner. The Morin court pointed out that the Restatement makes no reference to an ownership requirement, and that liability, according to the Restatement, is not based on ownership status, but on whether the entrustor, by virtue of his status, has sufficient control over the vehicle to give rise to a cause of action.

In deciding that a cause of action for negligent entrustment is not dependent on ownership status, the Jordan court observed that the principle features of the negligent entrustment tort are the supplier's knowledge of the entrustee's dangerous propensities and the foreseeability of harm. Under Greeley and the Restatement, the court stated, the rationale for imposing liability arises out of the entrustor's negligent act, not his ownership status.

In deciding whether the specific allegations stated a cause of action for negligent entrustment, the court first noted that there are no reported Connecticut decisions describing the elements of the cause of action. It observed, however, that in Morin, the issue of control was central to the court's decision. In that case the entrustor did not simply borrow someone else's car, but assumed the responsibility of designated driver. Similarly, the Restatement focusses on control. The comment to § 390 states that it is a special application of § 308, which declares that “'[i]t is negligent 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 such a manner as to create a unreasonable risk of harm to others.'” According to the comment to § 308, “under the control of the actor” indicates that a third person may 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 only by withholding consent he can prevent the third person from using the thing or engaging in the activity.'”

In the instant case, the complaint merely alleged that the car “'was in the custody, possession and/or control'” of Cudworth with the owner's permission, and that the vehicle was being used by both Cudworth and Sabourin as a substitute vehicle while Cudworth's Chevrolet Blazer was in disrepair. The court concluded that the complaint was devoid of facts relating to Cudworth's control, and thus the motion to strike should be granted.