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When Johnny Becomes Victim - Part II: Negligent Entrustment and Vicarious Liability

Wed, 26 Feb 2014
Published in Articles

In Part I, we discussed that it is common for the victim of a violent crime to look for someone to blame.

In some states, “negligent entrustment” is a conduit used by the plaintiff. Wikipedia defines this as a cause of action in tort law that arises where one party, called the entrustor, is held liable for negligence because they negligently provided another party, called the entrustee, with a dangerous instrumentality. As a result, the entrusted party caused injury to a third party with that instrument. These definitions are frequently used where automobile accidents are concerned. A plaintiff may argue that the defendant entrusted his vehicle, he or she knew or should have known that the driver was incompetent, and as a result, was the proximate cause of the damages resulting from the accident. Again, many times the defense firm or insurance company will use their local claims adjusters or independent adjusting firms to assist in the field investigations.


Name a situation where an employer can be named in a lawsuit involving negligent entrustment? Another question one might ask concerns the liability of the employer for an employee causing damage while under the influence of alcohol or drugs. The employer has no liability, unless he or she knew of a prior history relating to the employee and allowed them to continue to operate the company vehicle. The employer had a duty and breached that duty by entrusting his employee to drive a dangerous instrumentality and as a result, caused injury to a third party with that instrument. In some states while negligent entrustment may establish an employer's own fault, it should not impose additional liability; instead, the employer's liability cannot exceed that of the employee.

Many courts also have adopted that a defendant-employer's admission of vicarious liability then bars any claims for negligent entrustment, hiring, or retention. These decisions must fall into two categories:  

Whereby a state court, having first adopted the majority rule and having later adopted comparative fault, then chose to retain the majority rule. State court having already applied comparative fault as the majority rule.

Negligence in an employment situation differs from negligent entrustment in two key respects. First, negligent employment requires that the injury was caused by the actual employment of the party. By comparison, a party can be held liable for negligently entrusting something to any person, whether that person is an employee or not. Second, an employee can be found liable for negligent hiring, retention, supervision or training even without provision of any dangerous instrumentality to the employee. However, where an employer hires an unqualified person to engage in the use of a dangerous instrumentality, as in the above example, the employer may be liable for both negligent entrustment and negligent hiring.

Vicarious liability is a separate theory of liability from negligent entrustment. The doctrine of vicarious liability provides that an employer is liable for the torts of an employee under an agency theory, even if the employer did nothing wrong; negligent entrustment, however, requires proof of actual negligence on part of the employer before the injury occurred, when the entrustee was entrusted with the dangerous instrumentality.

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