Griffin, J.c.c., Temporarily Assigned.
Plaintiff was injured in an automobile accident. He has started suit against Wesley Wade an unlicensed driver, Wesley Wade's parents, and Raymond McErlean, the donor of the car. At the close of plaintiff's case defendant Raymond McErlean moved for an involuntary dismissal of the claim against him. Pursuant to R. 4:37-2(c) the court reserved decision until the conclusion of the trial.
The issue is one of first impression in New Jersey. The court must determine whether the donor of an automobile may be held liable in tort to third persons injured by the negligence of the donee after title to the automobile has been transferred.
McErlean had title to a 1963 Rambler which was used by his 18-year old son. The car failed to pass inspection in August 1972. His son was not permitted to take the car to college. McErlean decided to dispose of the car for junk. At this point McErlean's son found that Wesley Wade, whom he knew slightly but not particularly well, would like to have the car. Upon discussing this with his father, his father consented to give the car to young Wade. Wade was, in fact, about 16 years and 10 months old and unlicensed. McErlean had never met, seen or talked to him. He had no knowledge of his prior driving experience and no knowledge as to whether or not he was licensed. He made no inquiry. He simply endorsed the certificate of title, gave it to his son and instructed his son to give the certificate together with the car to Wade.
The day after this was done plaintiff, while a passenger in the Wade car, was injured while Wade was driving on private property. Giving the plaintiff the benefit of all inferences on the motion, it may be assumed that McErlean should have known that Wade was unlicensed because he knew Wade was behind his own son in high school.
The Restatement, Torts 2d § 390, reads:
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.
The comment under this section reads, in part:
The rule stated applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors or lendors, and to all kinds of bailors, irrespective of whether the bailment is gratuitous or for a consideration.
New Jersey has recognized the rule, at least in principle, in two cases involving parents giving children access to firearms. See Mazzilli v. Selger, 13 N.J. 296 (1953), and Stoelting v. Hauck, 32 N.J. 87 (1960).
In other jurisdictions it has been held that one who lends his motor vehicle to another knowing him to be incompetent may be held liable for such person's negligence. See Snow-white v. State, 243 Md. 291, 221 A.2d 342 (App. Ct. 1966) (owner knew driver frequented bars and was often intoxicated); Fogo v. Steele, 180 Kan. 326, 304 P. 2d 451 (Sup. Ct. 1956) (mother knew son was a reckless driver). Most of the cases, however, do not impose this liability when title to the car has been transferred, even in the case of a parent-child relationship. There is some split authority on this, however. See Jenkins v. Bridges, 93 Ga. App. 241, 91 S.E. 2d 317 (App. Ct. 1956); Brown v. Harkleroad, 39 Tenn. App. 657, 287 S.W. 2d 92 (Tenn. Ct. ...