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- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
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Negligent Entrustment

1 Elements and Case Citations

“[W]here a plaintiff claims she was harmed because of a defendant’s actions in negligently permitting a driver to use the defendant’s vehicle, the plaintiff must prove all of the following:

1. That [the driver] was negligent in operating the vehicle;
2. That [the defendant] was an owner of the vehicle operated by [name of driver];
3. That [the defendant] knew, or should have known, that [the driver] was incompetent or unfit to drive the vehicle;
4. That [the defendant] permitted [the driver] to use the vehicle; and
5. That [the driver]'s incompetence or unfitness to drive was a substantial factor in causing harm to [the plaintiff].”

Jeld-Wen, Inc. v. Superior Court, 131 Cal. App. 4th 853, 863-64 (2005) (quoting from Judicial Council of California Civil Jury Instructions 1-700 CACI 724).

“"The doctrine of 'negligent entrustment' is clearly distinguishable from the theory of 'vicarious liability.' Negligent entrustment is a common law liability doctrine. [Citation.] Conversely, the obligation of a lending owner of an automobile is one of statutory liability. [Citation.] An owner of an automobile may be independently negligent in entrusting it to an incompetent driver. [Citation.] California is one of several states which recognizes the liability of an automobile owner who has entrusted a car to an incompetent, reckless, or inexperienced driver, . . ." Hartford Acci. & Indem. Co. v. Abdullah, 94 Cal. App. 3d 81, 90-91 (1979).

“Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner has exercised the required degree of care.” Truong v. Nguyen, 156 Cal. App. 4th 865, 875 (2007).

“A person injured by someone driving a car in the course of employment may sue not only the driver but that driver's employer. The employer can be sued on two legal theories based on tort principles: respondeat superior and negligent entrustment. Respondeat superior, a form of vicarious liability, makes an employer liable, irrespective of fault, for negligent driving by its employee in the scope of employment. The theory of negligent entrustment makes an employer liable for its own negligence in choosing an employee to drive a vehicle.”

Diaz v. Carcamo, 51 Cal. 4th 1148, 1151-52 (2011).

CALIFORNIA STATE COURTS

Supreme Court of California: None.

California 1st District: Mettelka v. Superior Court, 173 Cal. App. 3d 1245, 1247-48 (1985).

California 2d District: Jacoves v. United Merchandising Corp., 9 Cal. App. 4th 88, 115 (1992).

California 3d District: Osborn v. Hertz Corp., 205 Cal. App. 3d 703,
708-09 (1988).

California 4th District: Jeld-Wen, Inc. v. Superior Court, 131 Cal. App. 4th 853, 863-64 (2005).

California 5th District: Blake v. Moore, 162 Cal. App. 3d 700, 706 (1984).

California 6th District: White v. Inbound Aviation, 69 Cal. App. 4th 910, 920 (1999).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: National Union Fire Ins. Co. v. Showa Shipping Co., No. 97-16374, 16375, 1999 U.S. App. LEXIS 516, at *3 (9th Cir. Jan. 13, 1999).

Central District: None.

Eastern District: Scott v. New Star Transp., Inc., No. CIV. S-10-2812 LKK/KJN, 2012 U.S. Dist. LEXIS 134990, at *18-19 (E.D. Cal. Sept. 20, 2012).

Northern District: Snyder v. Enter. Rent-A-Car Co., 392 F. Supp. 2d 1116, 1121 (N.D. Cal. 2005).

Southern District: None.

2 Issues and Defenses to Claim for Negligent Entrustment

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: Cal. Code Civ. Proc. § 335.1 (two years).

(3) Allegations Supporting Employer Liability: “A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver.” Diaz v. Carcamo, 51 Cal. 4th 1148, 1157 (2011).

(4) Admission of Vicarious Liability by Employer: “[I]f an employer admits vicarious liability for its employee’s negligent driving, a plaintiff cannot rely on a negligent entrustment claim to introduce evidence of the employee's driving record.” Diaz v. Carcamo, 51 Cal. 4th 1148, 1154 (2011).

(5) Limitations to Liability of Car Rental Agency: “[A] rental car agency is ‘not negligent for entrusting a car to a person lawfully qualified and apparently fit to rent and drive it.’” Flores v. Enterprise Rent-A-Car Co., 188 Cal. App. 4th 1055, 1062 (2010).

(6) Characterization of Entrusted Instrumentality:
“The theory of negligent entrustment applies to all ‘dangerous instrumentalities,’ including motor vehicles.” National Union Fire Ins. Co. v. Showa Shipping Co., No. 97-16374, 16375, 1999 U.S. App. LEXIS 516, at *4 n.3 (9th Cir. Jan. 13, 1999) (citing Jacoves v. United Merchandising Corp., 9 Cal. App. 4th 88, 116 (1992)).

(7) Co-ownership: “[T[he mere fact of co-ownership does not prevent one co-owner from controlling use of the vehicle by the other co-owner. Thus, where, as here, plaintiff alleges that one co-owner had power over the use of the vehicle by the other and that the negligent co-owner drove with the express or implied consent of such controlling co-owner, who knew of the driver's incompetence, the basis for a cause of action for negligent entrustment has been stated.” Mettelka v. Superior Court, 173 Cal. App. 3d 1245, 1250 (1985).

(8) “Knew or Should Have Known Standard:” “[I]n order to impose liability for negligent entrustment, the lending owner must know, or from facts known to him should know, that the entrustee driver was intoxicated, incompetent, or reckless.” Hartford Acci.
& Indem. Co. v. Abdullah
, 94 Cal. App. 3d 81, 91 (1979).

(9) Limits on Liability of Rental Car Company: Vehicle Code section 14608 prohibits a rental car agency from renting to unlicensed drivers. Where the driver did not otherwise appear unfit, the Court of Appeal rejected the plaintiff’s argument that the rental company was not required to “asked him: (1) whether he had a record of driving under the influence; (2) whether he had ever had his license suspended or revoked for drunk driving (see §§ 13101, 13102); 4 (3) whether he had ever been refused automobile insurance; and (4) whether he intended to drive under the influence.” Osborn v. Hertz Corp., 205 Cal. App. 3d 703, 710 (1988). A Court of Appeal declined to revisit and modify this holding in light of the “in light of the availability of electronic driver's license checks.” Flores v. Enterprise Rent-A-Car Co., 188 Cal. App. 4th 1055, 1059 & 1062 (2010) (“rental car companies have no duty to conduct an electronic search of the driving records of their customers before entrusting a vehicle to them.”).