dissenting:
I agree with Justice Lohr’s conclusion that the doctrine of negligent entrustment is part of the law of Colorado, but I would not reverse the summary judgment for the defendants. In Casebolt v. Cowan, 809 P.2d 1080 (Colo.App.1991), the court of appeals affirmed the summary judgment because (1) Cowan did not furnish the alcohol to Casebolt that resulted in his intoxication; (2) Cowan did not see Casebolt when he was visibly intoxicated; and (3) Cowan was not in a position to exercise control over the automobile when Casebolt became intoxicated. The trial court that entered the summary judgment for the defendants concluded that Cowan had no duty to protect Casebolt against the voluntary consumption of alcohol and that even if such a duty were imposed the comparative negligence of Casebolt exceeded any negligence by Cowan.
I agree with Justice Vollack’s dissent and part of the dissent of Chief Justice Rovira, but I disagree with Chief Justice Rovira’s interpretation of Lyons v. Nasby, 770 P.2d 1250 (Colo.1989), and sections 12-46-112.-5(3)(a), 5B C.R.S. (1991), and 12-47-128.-5(3)(a), 5B C.R.S. (1991), which relate to the liability of vendors licensed to sell alcoholic beverages. In my view, a licensee, or bartender, has different duties than Cowan had when he permitted Casebolt to borrow an automobile. The pleadings and the facts, when viewed in the light most favorable to the plaintiffs, do not set forth a claim for negligent entrustment or create a controverted factual issue that would support our reversal of the summary judgment entered by the trial court.
Responsibility to third parties under section 390 of the Restatement (Second) of Torts (1965), if Casebolt was incompetent, requires that the person who supplies a vehicle to another know that the other person will be likely to use it in an unreasonably harmful manner. When Cowan entrusted the automobile to Casebolt, he was unaware of any facts that would have enabled him to foresee that Casebolt would drive the vehicle while intoxicated. Cowan made the automobile available to Casebolt to enable him to drive to a construction project. Casebolt drove to the job site, completed his work, and was not intoxicated when Cowan last saw him. Cowan saw Casebolt drink at least two beers on the afternoon of July 17, 1987, and saw Case-bolt go to the bar with other employees for another beer, but Casebolt was not intoxicated or out of control when Cowan left him at the Idaho Springs restaurant at approximately 1:00 p.m. The fatal accident occurred five and one-half hours later. Nothing that occurred in Idaho Springs while Cowan was present would support our reversal of the summary judgment.
Cowan had been told by Ned Slocum, sometime in the past, that Casebolt became “uncontrollable” when he drank, but there is nothing in the record to establish that Casebolt had ever driven while he was intoxicated or that he was uncontrollable pri- or to his fatal collision. Liability under section 390 turns on whether Cowan’s knowledge of Casebolt’s past alcohol-related behavior was sufficient to make it foreseeable that Casebolt would become intoxicated and would drive while intoxicated.
The record does not support an inference that Cowan had reason to know that Case-bolt was incompetent or would be likely to use the automobile entrusted to him in an unreasonable manner, or while intoxicated. *370In my view, summary judgment was properly entered for Cowan.
I respectfully dissent.