Plaintiff presents an interesting argument. He contends that when a nonowner entrusts the operation of a motor vehicle to its owner, who he knows or should know is intoxicated, the nonowner should be liable to third persons for injuries caused by the owner's negligent operation of his vehicle.
The facts are as follows:
Defendant Hoag was the owner of a pick-up truck which he drove one day to the seashore with defendants Niemeyer and Green as his passengers. It was a day of drinking and carousing. At the end of the day, defendant Niemeyer decided to
drive the Hoag vehicle back home, because he felt that it was safer for him to drive, rather than for defendant Hoag to do so. The specific reason he gave for driving the Hoag vehicle was that defendant Hoag was "buzzed," and because Hoag "drives like an animal."
Upon arriving home, defendant Niemeyer left the vehicle and delivered the vehicle over to Hoag, who then proceeded to drive plaintiff Lombardo and defendant Green to their respective homes. He became involved in an accident almost immediately after he started to drive. Plaintiff Lombardo sustained serious injuries as a result of this accident, and this suit seeks compensation for those injuries.*fn1 His claim against Niemeyer is based upon negligent entrustment.
Defendant Niemeyer moves for summary judgment.*fn2 He contends that the concept of negligent entrustment is inapplicable to a situation where a chattel is entrusted to its rightful owner.
Plaintiff concedes that a novel issue has been presented. He argues, however, that Niemeyer had both a statutory and a common law duty to insure the safety of Hoag and plaintiff. His brief succinctly sets forth his position:
The determination of whether the defendant owes a duty to the plaintiff in this case is not a static or fixed concept susceptible of determination only by a searching analysis of out of state authority. Rather, it involves a question of fundamental fairness, an examination of the relationship of the parties involved, a determination of the nature of the risks and an analysis of whether there is a public interest in the solution to the problem presented. As such, the determination of duty must of necessity adjust to encompass the changing social relationships and exigencies of every day life.
There are no New Jersey cases, nor for that matter, any other cases outside of New Jersey which this court has found with a similar factual pattern.
Negligent entrustment is defined in the Restatement:
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. [ Restatement, Torts 2d, § 308 at 100 (1965)]
This court finds that defendant Niemeyer, although having been the driver of the Hoag vehicle for a period of time, was not in control of the vehicle at the time he turned it over to Hoag, at least not in the sense envisioned by the Restatement. The question, then, is whether the concept of negligent entrustment should be extended to encompass situations where the person who has temporary use of a vehicle returns the vehicle to its rightful owner, who he knows or should have known is intoxicated. The answer depends on whether a duty of care should be imposed on that person.
Traditionally, the law holds that a person has no duty to act for the protection of others.
The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself ...