Davey v. Hedden

*429Larson, J.,

concurring: I agree with the result and reasoning of the majority opinion as it relates to the application of K.S.A. 8-222. I write separately because I also agree with the result the majority opinion reaches as to the negligent entrustment claim, but I would resolve that issue simply by the application of the law of negligent entrustment and not rely on lack of proximate cause, the absence of foreseeability, or intervening causation.

The existing Kansas law articulated in McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), specifically provides that a claim of negligently entrusting a motor vehicle to another must be based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. McCart defines an incompetent driver as one “who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.” 230 Kan. at 620.

After examining the plaintiff’s statements of uncontroverted facts and making all inferences in the plaintiff’s favor as is required by K.S.A. 60-256,1 would hold there is no evidence to sustain the McCart burden of showing Catherine Farnsworth’s driving of the Hedden car involved any defendant “knowingly entrusting, lending, permitting, furnishing or supplying an automobile to an incompetent or habitually careless driver.” 230 Kan. 618, Syl. ¶ 1. Therefore, the plaintiff cannot, in my view, withstand the defense motion for summary judgment.

A condition precedent to imposing liability on the adult Heddens is evidence that the vehicle was negligently entrusted to Catherine Farnsworth. To prove that Catherine Farnsworth was negligently entrusted with the Hedden car some evidence would have to show she was an “incompetent or habitually careless driver.” 230 Kan. at 620. Even when all inferences the evidence could support are drawn in the plaintiff’s favor, there is no basis for a factfinder to make such a finding.

Based on this analysis we need not reach questions of foreseeability, proximate causation, or intervening causation, or consider whether each transfer of the vehicle requires a negligent entrust*430ment, that is: Were Jon Hedden and Jason Davey each in turn, “incompetent or habitually careless drivers”?

I would uphold the trial court’s grant of summary judgment, although not for the reasons of the majority opinion nor for the reasons stated by the trial court. See Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993).

Lockett and Allegrucci, JJ.; join in the foregoing concurring opinion.