In a claim for negligent entrustment you will have cause to pursue not only the driver of the vehicle for compensation, but also the owner! Negligent entrustment rules do not make the owner of a vehicle vicariously liable for the acts of the driver of the vehicle; they make him directly liable for his own negligence for allowing an incompetent driver to drive the vehicle. A vehicle owner has an obligation to use reasonable care in his use or operation of his vehicle; he also has an obligation to use reasonable care when deciding whether or not to give others permission to use his vehicle. Of the main elements needed to be proven in negligent entrustment the key is that the injured person must be able to prove that the vehicle owner was aware of his driver's incompetence whether it be an obvious disability that his vehicle is not modified for or if the driver is obviously under the influence of drugs or alcohol. The owner of the vehicle knew of that recklessness or incompetence. Driver incompetence, owner knowledge, entrustment, and proximate cause are all elements that need to be proven in negligent entrustment.

"In Montana, the owner of a motor vehicle is not vicariously liable for the acts or omissions of the driver, absent statute or proof of some other legal theory such as agency or negligent entrustment." There are several theories of negligent entrustment recognized by the Montana Supreme Court.

The first theory provides " that the owner or one in control of a thing and responsible for its use who is negligent in entrusting it to another can be held liable for such negligent entrustment." (Williams, Mt.1965). "Under this theory, for a person to be liable the person must be either:(1) the owner, or (2) in control of the vehicle and (3) negligently entrust that vehicle to another." (Williams).

The other theory provides that a "person who supplies a chattel to another whom the supplier knows or has reason to know is likely to use it in a manner involving unreasonable risk of physical harm is subject to liability for the resulting physical harm." (Williams). Under this theory, Montana law requires "the owner of a motor vehicle use care in allowing others to assume control over and operate the vehicle, and thus an owner who entrusts his vehicle to another has the duty to put it in charge of a reasonably prudent and competent driver, and to exercise reasonable care in selecting a driver and in ascertaining his competence to drive and the existence of habits which would make it unsafe to place so dangerous an agency in his hands"." The general rule applies to entrustment of a motor vehicle to a minor who is incompetent or a reckless driver."(Smith v. Babcock, Mt.1971).

In the first theory the issue of "control of the vehicle" is required. In Bahm v. Dormanen, Mt.1975, the Court stated that "control must be greater than physical power to prevent use of the vehicle." Here the Court looked to the state of Maryland for guidance. The Maryland Supreme Court cited "Restatement of Torts, 260 (now Restatement of Torts, 2nd, 390). From that guidance, the Court stated that it was clear that "a superior if not exclusive legal right to the object is a precondition to the imposition of the legal duty". Thus, the "right of control" being greater than physical power to prevent.

Negligent entrustment can appear in many different situations. A business owner having employees whose duties require driving-loaning your personal vehicle-children operating the family car.

"For liability to be imposed on a parent under a theory of negligent entrustment, (1) the parent must know that he or she has the ability to control the child; (2) the parent understands the necessity for doing so; and (3) the parent's failure to exercise reasonable care under these circumstances creates an unreasonable risk of harm to a third person."(Styren Farms, Inc. v. Roos, Mt.2011)

Being aware of an operator's driving record, driving habits and responsibility can be factors in a resulting negligent entrustment claim. Many business owners require an applicant supply a current motor vehicle record as a part of the employment application. Further, many employers will periodically update MVR's on current employees who have driving responsibilities. A very small expense if driver issues become a problem with insurance renewals or availability of affordable coverage. An ounce of prevention!!

Article By: Dennis Gambill - The author is an Insurance Litigation consultant. Adjunct professor at EMC for 8 years-Risk & Insurance. 40+ years-both MGA and agency experience.