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Jamar v. Patterson8/24/1995
Hewell Jamar appeals the judgement entered against him for negligent entrustment on the grounds that: (1) he owed no legal duty to Brandi Istre; (2) his conduct was not a proximate cause of the accident in question; (3) an element of the cause of action was not submitted to the jury; (4) the evidence was insufficient to show entrustment; and (5) the evidence was insufficient to support the award of damages and pre-judgment interest. We affirm as modified.
While driving Hewell Jamar's dune buggy, twelve-year-old Brandi Istre was involved in an accident and suffered extensive facial injuries. Gayle Patterson, Istre's mother, brought suit against Jamar individually and as next friend of Istre, for damages sustained as a result of the accident.
The jury found that Jamar negligently entrusted the dune buggy to Istre, and that such negligence proximately caused Istre's damages. The jury awarded Istre $145,000.00, and awarded Patterson $20,000.00 for Istre's medical expenses. The trial court entered judgement for these amounts, plus interest.
In the first of his five points of error, Jamar complains that he owed no legal duty to Istre because liability for negligent entrustment extends only to third parties, not the driver to whom the vehicle was entrusted.
The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver's negligence proximately caused the accident. Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex. 1985).
We have not been cited or found a Texas case which specifically addresses whether recovery for negligent entrustment is limited to third parties. However, injury to a third party is not included among the elements of negligent entrustment. See Id. In addition, at least one Texas case has allowed an under-age driver of a vehicle to recover against its owner for negligence. See Ellis v. Moore, 401 S.W.2d 789 (Tex. 1966). Moreover, recovery by the driver against the owner has been recognized in other jurisdictions where negligent entrustment was proven and not barred by contributory negligence. No case has been cited or found from another jurisdiction which limits such recovery to third parties. Furthermore, negligent entrustment is actionable by the driver under the Restatement (Second) of Torts Section(s) 390 cmt. c (1965). We are also aware of no policy reason for denying recovery to the driver for negligent entrustment.
Jamar argues that "duty" must be distinguished from "authority," that a person is generally under no duty to protect another from his own negligence, and that an entrustor must have control over a vehicle in order to have a duty to ensure that it is used safely. See Salinas v. General Motors Corp., 857 S.W.2d 944, 948-49 (Tex. App. -- Houston [1st Dist.] 1993, no writ). Although these principles are generally true, they do not negate liability for negligent entrustment, or provide a basis to treat drivers differently from third parties in terms of their right of recovery thereunder. Based on the foregoing, we do not have sufficient grounds to conclude that Jamar owed no legal duty to Istre for negligent entrustment. Jamar's first point of error is overruled.
In his second point of error, Jamar contends that the proximate cause of the injury was Istre's negligence in operating the vehicle, and that the jury should not have been instructed to find that his alleged negligence was automatically a proximate cause of the injury if it f
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