dissenting. I dissent because there is no question of material fact to be decided by the jury in this case. We no longer refer to summary judgment as a drastic remedy and now regard it as one of the tools in a trial court’s efficiency arsenal. Little Rock Elec. Contractors, Inc. v. Entergy Corp., 79 Ark. App. 337, 87 S.W.3d 842 (2002). We will only approve the granting of summary judgment when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to its day in court because there are not any genuine issues of material facts remaining. Id.; see also Riverdale Dev. Co., LLC v. Ruffin Bldg. Systems, Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). Once the moving party has established a prima facie entidement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Riverdale, supra. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a fight most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
The general rule for negligent-entrustment liability states that it is negligence to permit a third person to use a thing or to engage in an activity that is under the control of the actor, if the actor knows or should know that such a 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. Mills v. Crone, 63 Ark. App. 45, 973 S.W.2d 828 (1998). The words “under the control of the actor” are used to indicate that the third person is entitled to possess or use the thing or engage in activity only by the consent of the actor and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity. Id.
The elements of a claim of negligent entrustment are stated in Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). There must be proof that: (1) the entrustee was incompetent, inexperienced, or reckless; (2) the entrustor knew or had reason to know of the entrustee’s condition or proclivities; (3) there was an entrustment of the chattel; (4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; (5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant.
Harold Morgan gave his statement concerning the accident. According to Harold, he was selling the Hyundai to his brother Larry Morgan but retained the title to the vehicle until such time as the car was paid for in full. Larry was to make the payments on the car, pay the insurance, and not let anyone else drive the car. Harold and Larry were the only named insureds on the vehicle.
Harold described Sandra Powell, Larry’s fiance, as “just a drifter, you know. I mean I know her from a lot of people but as far as knowing her I don’t ... I don’t know her background or history or anything ... I don’t really talk to her because we don’t get along.”
On one occasion prior to the accident, in June 2000, Harold learned that Sandra Powell had driven the vehicle. Harold testified that he followed Sandra to where she had driven the car and told her, “Don’t never let me see you in this car again driving it, because if I do I’m pulling your ass right out of it.” He further testified,
“[Y]ou know, until the day that I noticed — that I stopped her, you know, and told her to get out of the car, that she wasn’t suppose to drive it. She told me she had a driver’s license. I said, ‘Well, where are they at?’ [Sandra responded] ‘Springdale’s got them.’ I said ‘You ain’t got shit.’ I said ‘Don’t never let me catch you in this car again’ .... ‘Ever.’ ”
He also testified that he continued to tell Larry that only he could drive the car.
Harold further testified that he did not know of the accident with appellant Rebecca Collins until two days after it occurred, “because they kept saying, ‘Don’t tell him because it wasn’t nothing,’ you know, and all this, and I told my brother, ‘that’s bullshit, I know better than that. Anytime you have an accident they’re going to have a police report.’ ”
Larry Morgan testified that he was purchasing the car from his brother. He was to make the payments while he was driving it, and he explained that “ [i]f I kept it until we got it paid off, it would be mine.” He further testified that Harold told him that no one else should drive it but him. Larry testified that on one occasion he let Sandra Powell drive the car because he had been drinking and that it was the only time he gave her permission to drive it. He explained that she did not ask to drive the car again and that she did not drive it again prior to the accident.
Larry explained that on the day of the accident Sandra left the hospital after a three-day stay. Larry stated that he had been up with her all night trying to take care of her, and upon her release, they had gone home for him to take a nap before going to work. He stated that when he woke up after about an hour the car was gone but the only key was in his pocket. He testified that he did not know how Sandra got it started but that the tow-truck driver told him, “She had the sunglasses stuck in the ignition, and it started with them.” Larry stated that he had specifically told Sandra not to drive the car, that she knew she was not to drive it, and that she had not been driving it except on the one occasion in June 2000.
Sandra Powell testified that she was told by both Harold and Larry never to drive the car because she was not on the insurance and did not have a current driver’s license. She stated that Larry had only given her permission to drive the car on the one previous occasion and that no one gave her permission to drive it the day of the accident. She also explained that she started the car with a pair of eyeglasses by folding them and sticking them into the ignition where a piece of previously broken key remained. In response to this testimony, appellants filed nearly identical affidavits from Rebecca Collins and Soni Fitzpatrick in which they stated that following the accident they saw Sandra Powell exit the vehicle with keys in her hand.
The majority points to no evidence that Harold gave Sandra express permission to use the vehicle, so our analysis must be based upon implied entrustment. It may be found that the insured has given implied permission where the named insured has knowledge of a violation of instructions and fails to make a significant protest. Clark v. Progressive Ins. Co., 64 Ark. App. 313, 984 S.W.2d 54 (1998). If the owner of an automobile forbids another person from driving the automobile, but the other person continues to do so with the knowledge of the owner, then the owner has given implied permission to drive the automobile. Id.
The majority first questions whether Harold made a significant protest after he discovered the violation of his instructions. Harold testified that he told Sandra that if he caught her in the car again he would be “pulling her ass right out of it.” He further referred to Sandra’s assertion that she had a driver’s license as “bullshit” and told her not to drive the car. I can think of no more significant protest short of a battery or false imprisonment that would make Harold’s point more clear. The majority also makes much of Larry and Sandra lying to Harold about having the car after the accident. The only reasonable inference that can be drawn from this is that they knew that Sandra did not have permission to drive it, either express or implied, and that they might well be facing Harold’s wrath. There is simply no permission shown from the facts presented. Another factor to be considered is the relationship between the parties. The fact that Harold and Sandra did not get along is uncontradicted. Therefore, that circumstantial evidence of implied consent is missing in this case.
The majority next states that there are facts that create an issue as to whether Harold knew that Sandra was operating the vehicle against his instructions, thus creating an implied permission. The majority readily admits that “there is no statement from Sandra indicating that Harold knew that she continued to operate the car despite his prohibition.” There is, in fact, no evidence presented that Sandra actually drove the car other than the first time, when Harold protested, and on the day of the accident. The majority states that the following facts constitute circumstantial evidence that Sandra continued to drive the car after Harold protested: (1) Sandra was Larry’s fiance; (2) they had been together for some months; (3) she did not have her own car; (4) Larry allowed Sandra to drive the car on one previous occasion. It is sheer speculation to find that those facts prove that Harold knew that Sandra drove the vehicle at other times. Not one shred of evidence presented by the appellants demonstrates that Sandra drove the car other than the two times testified to by Harold, Larry, and Sandra.
I agree that the fact that there may have been two entrust-ments is not a bar to recovery. See LeClaire v. Commercial Siding & Maint. Co., 308 Ark. 580, 826 S.W.2d 247 (1992). However, there is no evidence that Harold’s entrustment to Larry was in any way negligent. None of the elements set forth in Balentine, supra, are met other than an initial entrustment from Harold to Larry. Accordingly, the only scenario in which Harold might be liable under a serial-entrustment theory is if he failed to significantly protest to Larry’s first entrustment to Sandra. As stated earlier, Harold’s protest on that occasion was most certainly significant.
The majority goes on to state that there is a material question of fact as to whether Sandra was drunk at the time of the accident. This is not a material question of fact regarding the trial court’s granting of Harold’s motion for summary judgment. Viewing the facts in the light most favorable to appellants, Sandra appears to be responsible for appellant Rebecca Collins’s injury, whether or not she was drunk at the time. However, Sandra’s intoxication is not material as to whether Harold negligently entrusted the car to Larry or gave permission to Sandra to drive the car. Again, it is uncontradicted that Harold was unaware of the accident for two days afterward.
Federal court decisions interpreting the Federal Rules of Civil Procedure establish that “a trial court may deny a motion for summary judgment based on a lack of credibility of the moving party affiants or witnesses.” Clark, 64 Ark. App. at 320-21, 984 S.W.2d at 59 (emphasis added); see also 10A Charles Allan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726 at 440-47 (1998). The majority holds that, if there is potential bias, then a material question of fact exists. Under this standard, adverse parties in all cases would have potential bias, so summary judgment would never be appropriate. The object of summary-judgment proceedings is not to try the issues but to determine whether there are any issues to be tried. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001). When a summary judgment motion is put forth with affidavits attached, the motion’s opponent cannot rely on a base denial or contrary allegations but must meet proof with proof. Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). Here, appellants offered no proof as to Harold’s knowledge or actions that would support their claim of negligent entrustment. Simply stated, appellants did not meet proof with proof, thus summary judgment is appropriate.
Finally, the majority states that Harold, Larry, and Sandra gave inconsistent statements as to the material facts for the cause of action of negligent entrustment; however, their statements are wholly consistent as to the material facts of this case. Each testified that Harold entrusted the car to Larry and that Harold was adamant that Sandra not drive the car after the one time he found her in it. They each also testified that neither Harold nor Larry gave Sandra permission to drive the car subsequent to that one occasion, including the date of the accident, and that Sandra took the car without permission.
For the reasons stated, I would affirm the trial court. I am authorized to state that Judge Glover joins this dissent.