Hack v. Nester

CHIEF JUSTICE CARRICO, with whom JUSTICE RUSSELL and SENIOR JUSTICE POFF join,

concurring in part and dissenting in part.

I agree with the majority that the trial court properly permitted the jury to consider the fourth ground of the administrator’s claim for negligent entrustment, relating to the defective headlight. I also agree that the trial court erroneously permitted the jury to consider Hack’s alleged night blindness. But I do not agree with the majority that it was error for the trial court to permit the jury to consider the administrator’s first ground, relating to Hack’s lack of a driver’s license, and his third ground, relating to Hack’s use of alcohol.

Hence, while I agree that there must be a new trial, I would permit the jury on retrial to consider not only the evidence concerning the defective headlight but also the evidence relating to Hack’s lack of a license and his use of alcohol.

Concerning Hack’s use of alcohol, the majority is correct in stating that “ ‘[t]he test of liability under the doctrine of entrustment is whether the owner knew, or had reasonable cause to know, . . . that the person to whom the vehicle is entrusted ... is likely to drive while he is intoxicated.’ ” (Emphasis added.)

The majority states that “Weaver, who had lived with Hack for several months prior to the collision, testified that Hack occasionally drove after he had been drinking, and that he occasionally drank enough alcohol to ‘aifect’ him.” (Emphasis in original.) The majority also notes Hack’s record of two convictions for driving drunk and states that Weaver knew of the convictions.

Thus, there was evidence that Weaver knew Hack occasionally drove after he had been drinking, knew he occasionally drank enough alcohol to affect him, and knew he had been twice convicted previously of driving under the influence. This is sufficient, in my opinion, for the jury to find that Weaver had reasonable cause to know Hack was likely to drive while intoxicated at the time she entrusted him with her vehicle on the fatal night in question.

With respect to the license question, the majority correctly notes that “it is negligence per se to entrust a motor vehicle to an unlicensed driver” but that the reason for the lack of a license must have a causal connection to the collision. The majority then holds that the reason Hack did not have a license was his mere *511failure to prove financial responsibility and pay a reinstatement fee and that this was not a proximate cause of the collision.

In reality, the reason Hack did not have a license was that he had lost it for driving drunk, and no amount of sophistry can alter that fact. As indicated above, Weaver knew about Hack’s prior convictions for driving drunk, and it was this knowledge, coupled with what she learned about his drinking habits from her own observation, that gave her reasonable cause to know he was likely to engage in the same type of misconduct when she entrusted him with her vehicle on the night in question. Hence, there was a sufficient evidentiary connection between the reason for Hack’s lack of a license and the fatal collision.