Collins v. Arkansas Cement Company

• Decision Date: 03 January 1972
• Docket Number: No. 71-1050.,71-1050.
• Citation: 453 F.2d 512
• Parties: Ernest B. COLLINS, Individually and as Next Friend of Vicki Lynn Collins, a Minor, Appellee, v. ARKANSAS CEMENT COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 512 (1972)

Ernest B. COLLINS, Individually and as Next Friend of Vicki Lynn Collins, a Minor, Appellee, v. ARKANSAS CEMENT COMPANY, Appellant.

No. 71-1050.

United States Court of Appeals, Eighth Circuit.

January 3, 1972.

Boyd Tackett, Tackett, Young, Patton & Harrelson, Royce S. Weisenberger, Jr., Autrey & Weisenberger, Texarkana, Ark., for appellant.

C. Wayne Dowd, Thomas S. Arnold, Arnold & Arnold, Texarkana, Ark., for appellee.

Before GIBSON and HEANEY, Circuit Judges, and VAN PELT, Senior District Judge.

GIBSON, Circuit Judge.

The minor plaintiff Vicki Collins, age six, was injured when playing with a cherry bomb which had been given to her by a 15-year old girl, who had received it from an employee of the defendant. A jury verdict in the amount of $33,000 was entered in the District Court for the Western District of Arkansas. The defendant timely appealed, questioning the sufficiency of the evidence and proximate causation, claiming that the cherry bombs were stolen from its possession by an employee; that the employee was not acting within the scope and course of his employment at the time he purloined the cherry bombs and when he gave them to some children. We think the evidence was sufficient to sustain a verdict on the theory of a negligent entrustment of the cherry bombs by the defendant to the employee, and affirm.

The defendant used cherry bombs in its business for the purpose of dislodging powdered bulk cement in its silos when the cement would become lodged in the silos. The concussion of the cherry bombs, upon explosion in the silos, would dislodge the powdered cement. Chester Morgan, an employee of one and one-half years with the defendant, was entrusted with the cherry bombs from time to time and on several occasions he placed some of the bombs in the back of his truck. When riding around on a Sunday afternoon, on a drinking spree about a month after the latest of these occasions, he came across a group of children and gave them several of the cherry bombs. Ostensibly this was for the purpose of scaring pigeons, but he failed to relate any warning of the dangerous character of these particular type of fireworks. One of the children, Diane McGuire, thinking it was a harmless smoke bomb, that same day gave one of the cherry bombs to the minor plaintiff. The bomb exploded in the minor plaintiff's left hand, causing severe injury.

It was the practice of defendant to keep the cherry bombs under lock and key and to issue them to employees only upon request made to a foreman. No records were kept however of the bombs issued and no precautions were taken to insure that all of the bombs were used for business purposes or returned to the foreman for safekeeping. There was evidence that some of the bombs were left on the dock and occasionally picked up by other workmen, and also evidence of horseplay with the bombs by Morgan and other employees. It is not clear in this case whether Morgan received these particular bombs from the foreman or took them off the dock. However, Morgan admitted taking a number of the bombs home from time to time, more often taking them than not, and that it was commonplace for Morgan to take them home. Morgan's testimony was somewhat contradictory and vague, but he admitted purloining the bombs and giving them to the children. The defendant emphasized in its safety meetings the need for precautions in the use of the cherry bombs and warned that they were dangerous.

In this diversity case we are concerned with Arkansas law on the use of dangerous instrumentalities. Since Morgan admittedly was not within the course of his employment when he was carousing around on a Sunday afternoon and gave the cherry bombs to the children, the only basis for liability would be on the theory of negligent entrustment.

Negligent entrustment is defined in Restatement (Second) of Torts § 390 (1965) as follows:

"One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."

Both sides agree that an analysis of the doctrine of negligent entrustment as applied in Arkansas is fairly stated in an article appearing in 20 Ark.L.Rev. & Bar Ass'n J. 101 (1966) titled Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability. It lists the five elements of negligent entrustment as:

"(1) Proof that the entrustee was incompetent, inexperienced

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