CBA Record

N EGLIGENT ENTRUSTMENT INVOLVES THE lending of one person’s property to another when the lender (sometimes called the “entrustor”) should know that the receiver (sometimes called the “entrustee”) is not quali- fied to use that property, Zedella v. Gibson , 165 Ill.2d 181,186 (1995). In those circumstances, the law imposes a duty not just to the entrustee but also to the entrustor and makes the entrustor liable for the negligent acts of the entrustee, DuBois v. Rose , 217 Ill.App.3d 277, 283 (1991). Introduction to Negligent Entrustment Law in Illinois Illinois negligent entrustment law is taken from the general rule of liability for negligent entrustment explained in the Restatement (Second) of Torts. It 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 to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others, Restatement (Second) of Torts § 308 (1965). Comment (a) to Section 308, further explains negligent entrust- ment. It says: The words “ under the control of the actor ” are used to indicate that the third person is entitled to use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person form using the thing or engaging in the activity, Restatement (Second) of Torts § 308 (1965). Illinois courts have adopted these Restatement sections to form the law of negligent entrustment, Samuels v. Checker Taxi Co. , 65 Ill.App.3d 63, 66-67 (1978). In its most basic form, courts require an injured victim to prove two elements to successfully state a claim against an entrustor. First, the plaintiff must show there was an entrustment of a dangerous instrumentality, Allstate Ins. Co v. Panzica , 162 Ill.App.3d 589, 592-93 (1987). Second, the entrustment was to a person who was reckless or inexperienced and that entrustment caused the injury to the plaintiff. The first element is only about conduct, the second is about conduct and the instrumentality entrusted. Within the first element (the “conduct” element) there are two sub-elements that must be proven to establish that a negligent entrustment occurred. First, the injured party must prove that the entrustor had a superior right to control over the item, Zedella , 165 Ill.2d at 187. Second, it must be shown that the entrustor knew or should have known that the individual they lent the item to was incompetent or unfit to use the item. The first sub-element–superior right to control–is most often established by proving ownership of the object lent. For example, a car owned by one can be lent to another. This ownership gener- ally establishes a superior right of control. Thus, the owner of the car legally has a superior right of control if he lends it to a non-

owner. This alone can establish the requisite control for a negligent entrustment action, Zedella , 165 Ill.2d at 187. Once a superior right to control is established, it must then be determined whether the entrustor knew, or should have known, of the entrustee’s incompetence or inexperience in using the property, Evans v. Shannon , 201 Ill.2d 424, 434 (2002). This is established by offering evidence of the entrustee’s lack of competence, skill, or experience that should have put the entrustor on notice regarding those problems, Lulay v. Parvin , 359 Ill.App.3d 653, 658 (2005). Factors often examined include age, training, certifications (or lack of them), and prior history using the item or similar items. If the evidence suggests that the entrustor should have had knowledge of the entrustee’s lack of competence, skill, or experience, along with a showing that the entrustor had a superior right to control, then the plaintiff has fully established the first element of her cause of action for negligent entrustment. After the various parts of control and knowledge are established, the focus shifts to whether the recklessness or inexperience of the individual entrusted with the dangerous instrument proximately caused the plaintiff’s injury, Evans, 201 Ill.2d at 434. This is done by offering evidence of factual and legal causation. If a causal link can be made between the plaintiff’s injury and the entrustee’s reck- lessness or inexperience, then a full claim for negligent entrustment has been made. Here, it is worth remembering that questions of causation are almost always left for the jury, Hamilton v. Fink , 201 Ill.App.3d 81, 84 (1990). Pleading Requirements Because negligent entrustment is a form of negligence, practitioners can employ the familiar pleading rules applied to all negligence cases for negligent entrustment claims. Legally sufficient negligent entrustment claims must provide facts to establish the elements and sub-elements, Teter v. Clemens , 112 Ill.2d 252, 256 (1986). These include allegations of a superior right of control, entrustment of a dangerous instrumentality, incompetence of the entrustee, that the entrustor knew or should have known of the incompetence, and that an injury occurred as a proximate result of the entrustment and incompetence. How Much Evidence is Necessary? In nearly every negligent entrustment case, the entrustor will claim there was not “enough” evidence to establish that they knew or should have known of the entrustee’s lack of competence or inexperience with the dangerous article. Most lawyers and judges wrongfully assume that the plaintiff must provide the court with specific and concrete examples of the entrustee’s propensities for harm with that particular instrumentality. This is not the law in Illinois. Plaintiffs in negligent entrustment cases do not need to provide specific proof that the defendant “knew of specific individual pro- pensities for harm” Gen. Agents Ins. Co. of Am. v. Midwest Sporting Goods Co. , 328 Ill.App.3d 482, 488 (2002). Rather, if the entrustor knows the entrustment might result in harm, the cause of action can stand, Gen. Agents Ins. Co. of Am. , 328 Ill.App.3d at 488.

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