When we think of negligence, we often think in terms of direct negligence. That is, we think of the driver that carelessly hits someone else, the doctor that errantly fails to perform a procedure, or a nursing home staff member who abuses a resident. There is an entirely separate category of negligence, however, that is often referred to as indirect negligence. These are actors who do not commit the negligent act or omission directly, but do so by an action or inaction that allows an injury to occur.
One such example is negligent entrustment, a theory that is not well known by the general public, but is often used in personal injury cases to hold parties responsible for injuries. Not only is it vital for injury victims to recover, but it is something that those seeking to avoid causing injury, or who want to avoid being sued, should be aware of.
As the name implies, negligent entrustment occurs when someone is held to be negligent for trusting someone else with an item or device, which ultimately ends up injuring someone else.
The classic example is allowing someone else to use your car, and that person causes an accident resulting in injuries. Surely, you had no way of knowing that the person would drive carelessly and cause an accident, but the law will hold you responsible if there were facts or circumstances that could make that foreseeable to you, before you gave that person permission to use your vehicle.
Take, for example, a company that relies upon truck drivers. If the company hires a truck driver with a poor driving record, suspended license, or other blemishes on their driving records, the company can be held liable for negligent entrustment if that driver gets in an accident and causes injury. Based on that driver’s history, the company could foresee that this was not someone they should trust behind the wheel of a car.
The same can be said for those who let teen drivers, or drivers who may be on medication, use their cars. Anytime a circumstance exists that would make a reasonable person doubt that a driver could operate a car safely, that person can be held liable for negligent entrustment.
Gun Use and Injuries
Another common area in which negligent entrustment results, is the use of guns. Just because someone uses an owner’s gun and causes injury, does not make the owner liable for negligent entrustment. However, the owner will be liable if he or she knew or should have known, or circumstances make it foreseeable, that allowing someone else to use the gun would likely result in injury to another.
“Permission” to use a gun can be given by implication. That is, creating a circumstance in which it appears there is consent is enough, even without an express granting of permission to use the gun. An example would be leaving a gun somewhere and knowing that another person was aware of it, and taking no action to secure the gun.
As far as foreseeing that someone will cause injury, the analysis is not much different than entrusting someone with a car. Allowing someone with a criminal record to access the gun will lead to liability for negligent entrustment. Even knowing that someone has a bad temper or is prone to fighting may provide the knowledge needed to prove liability.
Also just like with a car, liability can lie just be allowing someone access to the gun who may not have the requisite training or experience with it to use it safely. This is often the case when guns are left where minors can access them, and the minor ends up shooting someone else, intentionally or accidentally.
Injuries by Minors
In fact, injuries caused by youths unable to be sued directly, often lead to negligent entrustment claims against parents. For example, a parent who allows a youth to operate an ATV that injures another may be held liable. In fact, adults can be liable for allowing any youth to use any item that has a stated age limit, which is why adults should pay attention to any warning label that says an item “should not be used by people under the age of XYZ.”
Note that with all of these situations, it does not matter that the law may allow someone to operate or use an item. A teenager may have a learner’s permit and be legally authorized to drive a car, but that does not insulate the owner from liability if he or she entrusts the vehicle to that person. A user of a gun may be legally authorized to carry the gun, but that does not make the owner any less responsible for negligent entrustment.
Negligent entrustment also has limited application to sales. That is, where an item is actually sold to someone else, that usually will not constitute negligent entrustment unless the sold item is inherently dangerous.
The law of negligent entrustment can be vague and lead to liability for actors who may not think they have liability. In many cases, it requires uncovering what facts the “entrustor” knew at the time the item was given to the party causing injury. But where it is applicable, it can be a powerful tool to allow victims to recover from injuries, even those caused by intentional or criminal conduct.
If you are injured, many theories of recovery may be available to you, to ensure that all negligent actors are held responsible. Contact Brill & Rinaldi today about a free consultation to discuss your case.