Meachum v. Faw, 9220SC1080

• Decision Date: 02 November 1993
• Docket Number: No. 9220SC1080,9220SC1080
• Citation: 112 N.C.App. 489,436 S.E.2d 141
• Parties: Ray B. MEACHUM and wife, Joyce B. Meachum, Co-Executors of the Estate of Lee Ann Meachum v. Branford Simpson FAW.
• Court: North Carolina Court of Appeals

Page 141

436 S.E.2d 141

112 N.C.App. 489

Ray B. MEACHUM and wife, Joyce B. Meachum, Co-Executors of the Estate of Lee Ann Meachum v. Branford Simpson FAW.

No. 9220SC1080.

Court of Appeals of North Carolina.

Nov. 2, 1993.

F. O'Neil Jones, Wadesboro, for plaintiffs-appellants.

Caudle & Spears, P.A. by Harold C. Spears and Timothy T. Leach, Charlotte, for defendant-appellee.

McCRODDEN, Judge.

Plaintiffs' sole argument on appeal is that the trial court erred in dismissing their complaint because it stated a claim for relief, to wit: negligent entrustment. For the reasons stated below, we reject this argument and affirm the order of the trial court.

In their complaint plaintiffs alleged that early in the morning of 31 December 1989, their decedent, Lee Ann Meachum, was driving defendant's car under the express authority of defendant. The complaint also averred that:

[The decedent] was an unlicensed motor vehicle operator and that she was 16 years of age, and that she was inexperienced in the operation of motor vehicles; and further that on December 31, 1989, [decedent] had a known proclivity for impulsive conduct, and had an addiction to mind altering substances; and that on the night of December 31, 1989, [decedent] had consumed a substantial amount of intoxicating substances in the presence of and at the bequest [sic] of [defendant]; and at the time alleged hereinabove, [decedent] was under the influence of some mind altering substances, and that [defendant] was aware of all of the above conditions and that [defendant] knew or by the exercise of reasonable care, should have known, that the driver was incompetent, inexperienced, or reckless in the operation of the motor vehicle; and in spite of this, permitted [decedent], an unlicensed driver, to operate a motor vehicle while under the influence of some mind altering substance and at a high rate of speed as above alleged.

5. That [defendant] negligently entrusted said automobile to [decedent] knowing at the time she was unlicensed; knowing at the time that she was intoxicated; knowing that she had a history of impulsive and erratic behavior; and knowing that she had a tendency to drive the automobile at a high rate of speed; and that her inexperienced operation of a motor vehicle would likely cause the motor vehicle to wreck and to harm herself or others; and, in spite of this knowledge, he did entrust said automobile to [decedent]; and that she thereafter did drive the automobile in a reckless and negligent fashion, and that as a direct result of her reckless, negligent, incompetent and inexperienced operation of the motor vehicle, there was a wreck, at the time and place of above alleged, and that as a result of the wreck [decedent] died.

A motion to dismiss tests the legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). A decedent's estate may bring an action for wrongful death only to recover such damages as the decedent could have recovered had he lived. N.C.Gen.Stat. § 28A-18-2 (Supp.1992); Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 647, 423 S.E.2d 72, 73 (1992). Therefore, we must determine whether, under the allegations of the complaint, decedent could have maintained a negligence action against defendant had she lived. Id.

Generally, one who entrusts a vehicle to a person who the bailor knows or, in the exercise of ordinary care, should know is intoxicated (or likely to become so), incompetent or reckless and is likely to cause injury may be liable for damages resulting from the bailee's negligent use of the vehicle. McIlroy v. Akers Motor Lines, 229 N.C. 509, 514, 50 S.E.2d 530, 533 (1948). The cause of action rests on the independent culpable negligence of the bailor in entrusting the automobile to a person whom he knew or should have known was likely to cause injury. Roberts v. Hill, 240 N.C. 373, 378, 82 S.E.2d 373, 378 (1954). The negligence of the bailee merely furnishes the causal link between the primary negligence of the bailor and the injury or damage. Id.

Defendant asserts that decedent would not have been entitled to bring this action because a negligent entrustment action may only be brought by a third party, not the bailee. While it is true that a number of North Carolina cases have stated that one of the necessary elements of negligent entrustment is injury to a third party, see, e.g., Hutchens v. Hankins, 63 N.C.App. 1, 303 S.E.2d 584, disc. review denied, 309 N.C. 191, 305 S.E.2d 734 (1983), Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373, McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530, no North Carolina case has directly faced the issue of whether a negligent bailee may recover against a bailor for negligent entrustment, nor has one held that only a third party may recover under the theory of negligent entrustment. The case of Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462 (1955), although not directly addressing the question, leaves open the possibility that one who is not a third party might recover under the negligent entrustment theory. In Osborne, the plaintiff alleged that the defendant's negligence in driving his vehicle or allowing someone to drive his vehicle had caused the death of the plaintiff's intestate. Our Supreme Court found that, while there was a dispute about who had been operating the vehicle, there was evidence tending to show that the plaintiff's intestate had been driving at the time of the accident, and, since the plaintiff's complaint alleged no negligence on the part of the intestate or any other potential driver, the plaintiff was not entitled to rely on the theory of negligent entrustment. Osborne, 241 N.C. at 688, 86 S.E.2d at 464. The Court affirmed the trial court's dismissal of the plaintiff's action.

Cases from other jurisdictions offer valuable insight. See, e.g., Casebolt v. Cowan, 829 P.2d 352 (Colo.1992); Gorday v. Faris, 523 So.2d 1215 (Fla.App.1988); Blake v. Moore, 162 Cal.App.3d 700, 208 Cal.Rptr. 703 (1984); and Keller v. Kiedinger, 389 So.2d 129 (Ala.1980). Of these, Keller v. Kiedinger is particularly instructive. In that case, the defendant, an 18-year-old boy, allowed the decedent, a 14-year-old girl, to drive his aunt's car. While driving, the decedent lost control of the vehicle and crashed into a pond where she drowned. The defendant in Keller argued, as defendant does here, that a bailee injured by her own negligence may not bring suit against the bailor. The Alabama Supreme Court found that the essence of a claim for negligent entrustment was the primary negligence of the bailor in entrusting the chattel to the incompetent bailee, not the bailee's negligence. Keller, 389 So.2d at 132. Thus, the bailee's negligence was not an essential element of the claim against the bailor and the claim was not barred per se by the doctrine of contributory negligence. Id. The Keller court, like each of the other courts that have allowed a negligent entrustment claim to be brought by a negligent bailee, adopted the view of the Second Restatement of Torts.

Section 390 of the Restatement provides:

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...