Casebolt v. Cowan, 91SC69

• Decision Date: 06 April 1992
• Docket Number: No. 91SC69,91SC69
• Citation: 829 P.2d 352
• Parties: Susan CASEBOLT, as mother and next friend of Lauren Casebolt and Lindsey Casebolt; and Susan Casebolt, individually, Petitioners, v. William COWAN, individually; and William Cowan d/b/a Milco Construction Company, Respondents.
• Court: Colorado Supreme Court

Page 352

829 P.2d 352

60 USLW 2662

Susan CASEBOLT, as mother and next friend of Lauren Casebolt and Lindsey Casebolt; and Susan Casebolt individually, Petitioners, v. William COWAN, individually; and William Cowan d/b/a Milco Construction Company, Respondents.

No. 91SC69.

Supreme Court of Colorado En Banc.

April 6, 1992.

Rehearing Denied May 11, 1992.

Law Offices of Robert A. Weinberger, P.C., Thomas L. Kanan, Daniel B. Galloway, Robert A. Weinberger, Denver, for petitioners.

Johnson, Oldham & Angell, P.C., Richard Lee Angell, Denver, for respondents.

Anderson, Campbell and Laugesen, P.C., Richard W. Laugesen, Denver, for amicus curiae Colorado Defense Lawyers Ass'n.

Justice LOHR delivered the Opinion of the Court.

This case presents issues concerning the existence, nature, and scope of any duty owed by the owner of an automobile to a borrower of that vehicle to prevent injuries to the borrower resulting from operation of the vehicle by the borrower after consuming alcoholic beverages. These issues arise from a wrongful death action brought by the wife and children of Lindel Casebolt, who was killed in a collision when he drove a borrowed automobile eastward into a westbound lane of traffic after drinking. The plaintiffs asserted liability based on a theory of negligent entrustment. The district court granted the motion for summary judgment made by the defendants--the corporation ¹ that owned the vehicle driven by Casebolt and the corporate officer who granted Casebolt permission to drive it. The decision was based on the district court's conclusion that the defendants owed no duty to Casebolt to protect him from his own abuse of alcohol. The Colorado Court of Appeals affirmed. Casebolt v. Cowan, 809 P.2d 1080 (Colo.App.1990). We conclude that summary judgment was improper because genuine issues of material fact must be resolved before it can be determined whether the defendants owed a duty of care to Casebolt. Consequently, we reverse the judgment of the court of appeals.

I.

Susan Casebolt is the widow of Lindel Casebolt. She brought this action individually and on behalf of the couple's two minor children against William Cowan individually and doing business as Milco Construction Company (Milco), seeking damages for the wrongful death of her husband. The plaintiffs asserted that the defendants breached a duty to Casebolt, Milco's employee, by failing to prevent him from driving a vehicle owned by Milco, and loaned to him by Cowan, after Cowan learned that Casebolt was consuming alcoholic beverages. The plaintiffs averred that Cowan knew that Casebolt drank alcohol to excess, was intoxicated, and would be using the vehicle for his transportation needs. After the parties engaged in some discovery, the defendants moved for summary judgment, asserting, among other things, that they had no duty to Casebolt to protect him from the consequences of his own intoxication.

The district court ruled that the defendants had no duty to protect Casebolt from his own abuse of alcohol and therefore granted summary judgment for the defendants. ² On appeal, the Colorado Court of Appeals affirmed. Casebolt, 809 P.2d 1080. The appellate court characterized the duty the plaintiffs sought to establish as a duty of a person entrusting a motor vehicle to another "to exercise control at any time after the original entrustment of a motor vehicle, if there is any basis upon which to infer that some harm may occur at some later time to the entrustee." Id. at 1081. Relying particularly on the "facts" that Cowan did not furnish the alcoholic beverages that ultimately intoxicated the decedent, did not observe him when he was visibly intoxicated, and was not in a position to exercise control at the time he became intoxicated, the court of appeals found no basis to impose any duty on the defendants. Id. We granted certiorari to review this determination.

II.

We begin our analysis by summarizing familiar principles that govern resolution of motions for summary judgment, setting forth the pertinent facts that are established by the record, and noting the relevant facts that remain in dispute.

A.

Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo.1988); United States v. Jesse, 744 P.2d 491, 503 (Colo.1987). In determining whether summary judgment is proper, the nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party. E.g., Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo.1991); Tapley v. Golden Big O Tires, 676 P.2d 676, 678 (Colo.1983); see C.R.C.P. 56(c). A court must consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," in determining whether to grant a motion for summary judgment. C.R.C.P. 56(c). As we have often observed, summary judgment is a drastic remedy, to be granted only when there is a clear showing that the controlling standards have been met. E.g., Mancuso, 818 P.2d at 736; Churchey, 759 P.2d at 1339-40.

B.

The record demonstrates that there is no genuine issue as to the existence of any of the facts that we now set forth, all pertaining to the times of the accident resulting in Casebolt's death and the events leading up to it. Milco Construction Company was a Colorado corporation, and William Cowan was its president. Casebolt was employed by Milco as a construction worker. On the evening of July 16, 1987, Casebolt, who lived in the Denver metropolitan area, asked Cowan for permission to drive a car owned by Milco from Denver to the site of a Milco construction project in Idaho Springs and back so that he could work on the project on July 17. Cowan granted permission. Casebolt drove the Milco vehicle to Idaho Springs on July 17 and worked until the project was completed about noon. Cowan was present. After the job was finished, Casebolt and the other workers consumed some beer at the job site. Cowan acknowledged that Casebolt had one beer at that time. Cowan, Casebolt, and other Milco workers then went to lunch in Idaho Springs, and Casebolt drank a beer with lunch. After eating, Casebolt went with some of his luncheon companions to the bar area of the restaurant. The men told Cowan that they were going to have a beer after lunch and asked him to join them. Cowan declined and left the restaurant. He stated in his affidavit that he observed nothing about Casebolt's behavior to indicate he was intoxicated at that time. Although Cowan assumed Casebolt would drive the Milco car back to his home, Cowan did not suggest that Casebolt stop drinking and took no action to revoke or condition his permission to use the car. Cowan did not see Casebolt again. At about 6:30 p.m. Casebolt left Idaho Springs and drove the Milco vehicle eastward into a westbound lane of highway traffic. A collision ensued, and Casebolt later died of the injuries he sustained in the accident. The accident was caused by Casebolt's intoxication.

Other facts are in dispute. Cowan had some knowledge that Casebolt had experienced difficulties when consuming alcoholic beverages, but the extent of that knowledge is disputed. Ned Slocum, a coworker of Casebolt on some Milco construction projects, executed an affidavit relating an incident in 1986 when he, Cowan, Casebolt, and another went to a bar, Casebolt became "obnoxious, rowdy, and drunk" after consuming several beers, and Slocum took Casebolt home because he had too much to drink. In his affidavit, Slocum stated that in April 1987, when working for Cowan, the latter asked about that 1986 occasion and Slocum said that Casebolt "had problems with handling his alcohol and that when [Casebolt] drank, he became uncontrollable." In response to a question from Cowan, Slocum said that scratches Casebolt had received on that occasion resulted from a physical altercation between Slocum and Casebolt, because "that is how [Casebolt] acted when he was drinking." Slocum's affidavit further stated that

[d]uring this conversation, Mr. Cowan and I agreed that [Casebolt] could not handle his liquor and that, even with a small amount of alcohol, [Casebolt's] personality would obviously change. Mr. Cowan said that, after a few beers, [Casebolt] was a "wild man." During this conversation, Mr. Cowan told Randy Harp and other employees not to take [Casebolt] drinking because he drank excessively and became uncontrollable.

In Cowan's deposition, however, except for information gleaned on the occasion in 1986 described by Slocum, Cowan denied any knowledge prior to the accident that Casebolt was particularly susceptible to becoming intoxicated upon consuming alcoholic beverages. Cowan testified that he did have a conversation with Slocum about a fight Casebolt had engaged in after drinking, but Cowan said this conversation took place on the day of Casebolt's funeral. Thus, Casebolt's drinking habits and behavior, the extent of Cowan's knowledge of such matters, and particularly Cowan's knowledge of any propensity of Casebolt to drink and drive are not developed in the record. The amount of beer consumed by Casebolt before, during, and after lunch while Cowan was present is also not clearly established by the record, ³ and the available evidence is susceptible of various inferences.

III.

A.

The amended complaint asserts a claim in negligence under a theory of negligent entrustment. The district court applied general negligence principles in arriving at the conclusion that the defendants had no duty to Casebolt. The court of appeals followed a negligent entrustment analysis and reached the same conclusion. Casebolt, 809 P.2d at 1081. In their briefs on certiorari review, the plaintiffs rely on negligent entrustment to support...