Lero v. State Farm et al
Brief on Negligent Entrustment
IN THE CIRCUIT COURT OF CASS COUNTY, MISSOURI
PAUL LERO and )
CAROLYN LERO, )
v. ) Case No. 09CA-CV00669
ADAM P. MACE, et. al )
PLAINTIFFS’ TRIAL BRIEF ON NEGLIGENT ENTRUSTMENT
COME NOW plaintiffs and respectfully submit this trial brief on the elements of negligent entrustment.
The Missouri Supreme Court in Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 W.W.2d 325 (Mo. S.C. 1977) held that there are four necessary elements to the tort of negligent entrustment:
(1) that the entrustee is incompetent by reason of age, inexperience, habitual recklessness or otherwise;
(2) that the entrustor knew or had reason to know of the entrustee’s incompetence;
(3) that there was an entrustment of the chattel; and
(4) that the negligence of the entrustor concurred with the conduct of the entrustee as a proximate cause of the harm to plaintiff.
To prove the first element of negligent entrustment, it must be proved that the entrustee was incompetent by reason of age, inexperience, or habitual recklessness. Here Plaintiff alleges that entrustee was incompetent to drive due to habitual recklessness. “The possession of a valid driver’s license is not proof that one is competent to drive.” LeClave v. Hardy 73 S.W.3d 637 (Mo. App. E.D. 2002). “Missouri, with other states, recognizes that a history of traffic violations is powerful evidence that a driver is incompetent.” Id. at 641.
To prove the second element of negligent entrustment Plaintiff must prove the entrustor knew or had reason to know of the entrustee’s incompetence. In LeClave v. Hardy , the entrustor knew that entrustee was specifically excluded from entrustor’s insurance coverage. Id. at 645. This was used to demonstrate that entrustor knew or should have known of the risk in entrusting his vehicle to entrustee.
To prove the third element of negligent entrustment, the Plaintiff must prove that actual entrustment of the vehicle from entrustor to entrustee. Actual entrustment can be either express or implied.
Express entrustment occurs when words or acts, such as handing over the vehicle keys, create entrustment. Implied entrustment “may be based on a course of conduct, the relationship between the parties, or lack of objection that indicates existence of consent”. Id. at 646. This can occur when the entrustor leaves the keys in the vehicle ignition or customarily allows entrustee to drive the vehicle.
An entrustor expressly denying permission to the entrustee to use the vehicle does not necessarily prove a lack of entrustment if there is sufficient indirect evidence for a jury to find that there was implied permission. Id. at 646.
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ATTORNEYS FOR PLAINTIFF
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Randy Cain Defendants Adam Mace, et al 10/ /09 Hand Delivery
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