dissenting. I respectfully dissent. Arkansas has recognized the well-settled rule of negligent entrustment, especially as it applies to automobiles. AMI 609; see generally Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark. L. Rev. 101 (1966), and Woods, Negligent Entrustment Revisited; Developments 1966-76, 30 Ark. L. Rev. 288 (1976); see also Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989). That theory of recovery, in my view, was never intended to cover facts such as those presented here.
Under the negligent entrustment theory, the owner here, Commercial Siding & Maintenance Company (Commercial), was required to use ordinary care not to permit its vehicle to be driven by a person whom it knew, or reasonably should have known, to be intoxicated, had a habit of being intoxicated, or to be an incompetent or reckless driver. In his second amended complaint, appellant added the following paragraph in an attempt to show his injuries resulted from Commercial’s negligent entrustment of allowing its employee, Daniel Garcia, to operate Commercial’s truck:
That the Defendant, Commercial Siding and Maintenance Company, was negligent in entrusting said vehicle to Daniel Garcia when they knew or should have known that Daniel Garcia was immature, reckless, and was not a mature, responsible person. The Defendant, Commercial Siding and Maintenance Company, was negligent in entrusting said vehicle to Daniel Garcia without providing continual and constant supervision of said Daniel Garcia. The Defendant, Commercial Siding & Maintenance Company, was negligent in entrusting the vehicle to Daniel Garcia without having furnished Daniel Garcia with written rules and instructions and regulations concerning his being entrusted with said vehicle. The Defendant, Commercial Siding and Maintenance Company, was negligent in that they did not make a prudent inquiry into Daniel Garcia’s background prior to hiring said Daniel Garcia and prior to entrusting said vehicle to his person. The Defendant, Commercial Siding and Maintenance, knew, or had they made prudent inquiry, should have known that Daniel Garcia frequently became intoxicated on alcoholic beverages and that he had other characteristics such as moving traffic violations and, therefore, their entrustment of said vehicle to him was negligent. (Emphasis added.)
Actually, in reading appellant’s amended complaint, I find it somewhat difficult to determine where the negligent entrustment lies. There is no recitation of facts in the complaint that reflects Garcia was intoxicated when he was entrusted with Commercial’s truck. Nor does the complaint allege Garcia had a habit of driving while intoxicated. The complaint does allege that Commercial should have known Garcia frequently became intoxicated, but it in no way relates the problem to driving. Appellant also mentions that Garcia “had other characteristics such as moving traffic violations,” and while I am unsure exactly as to the meaning of the phrase, it does not spell out that Garcia was an incompetent or reckless driver. In sum, the appellant’s complaint, in my view, falls short of setting out facts sufficient to show Commercial, as entrustor, knew or had reason to know of Garcia’s proclivity to be intoxicated when driving a motor vehicle; nor was he alleged to be an incompetent or reckless driver.
Even if I could agree the appellant’s complaint properly alleged negligent entrustment on the part of Commercial, I believe the majority has extended the doctrine beyond its intended purpose. The majority opinion relies on Garrison v. Williams, 246 Ark. 1172, 442 S.W.2d 231 (1969), where the entrustor let his fifteen-year-old unlicensed son take the family car knowing the son was going to the theater with another fifteen-year-old unlicensed minor. The son later let his companion have the car in order to take the companion’s girlfriend on a ride, and while so engaged, the girl was injured. This court upheld the girls’ verdict against the entrustor holding that the jury could have found that the car owner should have foreseen the natural and probable consequence of his negligence under the above-described circumstances.
In the present case, Commercial had no knowledge, nor should it have had under the facts alleged, that Garcia would turn possession of Commercial’s truck to another. Certainly, appellant alleges no facts that Commercial was aware of any possible companions whom it might surmise would relieve Garcia of his driving. Garcia is not alleged to have had any history of anyone accompanying him in Commercial’s truck for any purpose. In terms of what comprises a negligent entrustment case, Commercial’s entrustment cannot be said to have created an appreciable risk of harm to the appellant nor is it indicated, by the facts alleged, that a relational duty existed on the part of Commercial.
In his 1976 article, James Woods cited several cases (including the Garrison case relied on here by the majority) bearing on the point that, when considering the entrustor’s knowledge, the entrustment does not have to be specific before an injured party can recover. Davis v. Denby, 212 Va. 836, 188 N.E.2d 226 (1972); Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481 (Mo. App. 1972); Garrison, 246 Ark. 1172, 442 S.W.2d 231. Instead, the entrustor’s liability could be established by his simply engaging in a course of conduct that permitted an incompetent to secure possession of the instrumentality or motor vehicle. But even in these cited cases where the negligent entrustment doctrine has been extended, the entrustor’s knowledge of his entrusteeemployee’s or agent’s incompetence was a predicate in drawing the entrustor’s liability into issue.
Particularly instructive is the Stafford decision, where the trucking company employed a driver, Mr. Perry. After obtaining permission from the company, Perry hired, at his own expense, the services of Roberts, an escaped convict. Neither the company nor Perry knew Roberts was a convict, but Perry did know. Roberts had no driver’s license and had no experience in driving the type truck involved. Perry later gave the keys to the truck to Roberts, who drove it away only to later ram it into the plaintiff’s building. The Missouri Court of Appeals, among other things, held that the company knew, or the jury could find it knew, that (1) Roberts was on its equipment (truck) as a helper with its driver, (2) the company had consented to and approved such arrangement, and (3) the incompetent, unskilled and unlicensed Roberts might have an accident with the truck if entrusted with it by the company’s driver, who had knowledge of Roberts’ deficiencies.
From reading the case cited in Judge Woods’ article and my own research, I am unaware of any authority where liability attached against an entrustor in a negligent entrustment situation where a person, unknown to and unauthorized by the entrustor, obtained possession of the entrustor’s motor vehicle from its employee or agent. As I noted earlier, the Garrison decision relied on by the majority for this proposition is not such authority, and the majority opinion cites no other.
For the reasons above, I would affirm the trial court’s dismissal of appellant’s complaint.
Holt, C.J., and Hays, J., join in this dissent.