dissenting: By not addressing certain uncontroverted facts that were considered by the trial court, the majority today finds a way to deny the plaintiff, who suffered severe head injuries and who incurred medical expenses exceeding $300,000 because of an unsafe vehicle, his day in court. This brings us to one overriding question: Should plaintiff s negligent entrustment claim be barred because of his misplaced reliance on one theory of negligent entrustment when defendants’ admissions to plaintiff s uncontroverted facts and the trial court’s consideration of plaintiff s 54 paragraphs of uncontroverted facts brought plaintiff s claim within another well-recognized theory of negligent entrustment under Restatement (Second) of Torts § 389 (1964), thus indicating that defendants’ motion for summary judgment, which was filed before discovery had been completed, was prematurely granted? The answer is no.
*451An understanding of this issue requires a discussion on two separate theories of negligent entrustment that Kansas law has recognized. First, the negligent entrustment theory that is probably the most familiar is based on Restatement (Second) of Torts § 390 (1964), which states:
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
This negligent entrustment theory frequently occurs when a car owner lends or entrusts his or her car to a person whom the owner knows is incompetent or inexperienced to use it safely. Our Supreme Court first recognized this negligent entrustment theory in Priestly v. Skourup, 142 Kan. 127, 130, 45 P.2d 852 (1935); see also McCart v. Muir, 230 Kan. 618, 620-21, 641 P.2d 384 (1982) (citing Priestly for the definition of an incompetent driver).
Second, the negligent entrustment theory that is not as familiar as Restatement (Second) of Torts § 390 (1964) is based on Restatement (Second) of Torts § 389. Restatement § 389 imposes liability on the supplier of an unsafe chattel to another when the supplier of the chattel knows or has reason to know that the chattel “is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put.” Restatement (Second) of Torts § 389; see Bergstresser v. Van Hoy, 142 Kan. 88, 92, 45 P.2d 855 (1935) (citing Restatement [First] of Torts § 388, 389 [1934]).
Here, in granting summary judgment to the defendants, the trial court made an erroneous legal conclusion that the uncontroverted facts set forth by the plaintiff could not establish a negligent entrustment theory in Kansas. Despite the fact that many of the plaintiffs 54 paragraphs of uncontroverted facts, which tíre trial court accepted as the controlling facts, fit within a negligent entrustment theory under Restatement § 389, the trial court declared, in its written journal entry, that there were “no facts in the case that support a claim by plaintiff against the defendants, [the] Hohen*452see[s], for negligent entrustment.” This board language used by the trial court included any neghgent entrustment theory that was encompassed within plaintiffs 54 paragraphs of uncontroverted facts. Consequently, the trial court’s ruling was not hmited to neghgent entrustment under Restatement (Second) of Torts § 390, as the majority imphes.
Moreover, when a plaintiff has made a mistake about what relief to which he or she is entitled, our Supreme Court has intervened to prevent the hardship that would fall to the plaintiff if he or she were denied his or her day in court. This intervention is vividly ihustrated in Harris v. McConnell, 194 Kan. 800, 802-03, 401 P.2d 908 (1965). There, our Supreme Court reversed a summary judgment granted in favor of the defendants because there had been a misconception about the theory of plaintiff s claim for personal injuries. Moreover, our Supreme Court granted the reversal despite plaintiff s misplaced reliance on a statute and despite plaintiffs deposition testimony, which under normal circumstances would have precluded recovery by plaintiff. Initially, quoting the trial court’s summary judgment ruling, our Supreme Court stated:
“ ‘A construction of the allegations of plaintiffs petition in tight of her reply compels the conclusion that plaintiff bases her claim upon defendants’ failure to repair the defects which plaintiff alleges existed at the time the walk in question was constructed and continued to exist at the time plaintiff fell thereon. This being the situation it is clear from the cases cited that plaintiff cannot recover in this action.’ ” 194 Kan. at 802.
Acknowledging that the trial court had correctly stated the bases of plaintiff s claim and the applicable rule of law for plaintiff s claim, our Supreme Court stated:
“We adhere to the rule of the above authorities, and, although we concede the record presents a ‘close’ question, we believe that a literal reading of plaintiff s allegations brings the matter within what appears to be a well recognized exception to the general rule relating to liability of an abutting owner.” 194 Kan. at 802.
Similarly, a literal reading of the record in this case shows that the plaintiff supplied evidence that, although without specifically mentioning Restatement § 389, would bring this matter within a neghgent entrustment claim under Restatement § 389.
*453Indeed, our Supreme Court has previously recognized that there is a separate theory of negligent entrustment under Restatement § 389, which resembles the negligent entrustment theory under Restatement § 390. See Bergstresser, 142 Kan. at 92 (Turning a dangerously defective automobile over to another, who will likely put it to immediate use in its defective condition, resembles turning a safe automobile over to a driver known to be unfit to use it.); see also Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 150, 453 P.2d 486 (1969) (citing Restatement [Second] of Torts §§ 388, 389). Moreover, summary judgment should be granted with caution in negligence actions. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008).
Because Restatement § 389 is predicated on the supplying of an unsafe chattel, it is crucial to the plaintiff s case to introduce evidence that the vehicle was unsafe to operate. The plaintiff provided such evidence in a report from one of his experts, John Glennon, Ph.D. In stating that the vehicle driven by Nguyen was unsafe to operate, Glennon’s report, in part, stated:
“The photographs of the interior of the minivan (Steven Hohensee Deposition Exhibits 1, 4, and 5) indicate the middle row of seats had been removed. An unsecured wheel and tire and other unsecured items were in the middle row area as well as a frayed shoulder harness in the back row passenger seat resulting in an obvious, dangerous condition within the vehicle. It would be unsafe for defendant Nguyen to operate the vehicle in such a condition with a passenger seated in the back row. According to the Accident Report, the driver of the minivan at the time of the accident, defendant Nguyen, was not the owner. If the ownerknew of the dangerous conditions existing within the vehicle, it would be unsafe to allow the vehicle to be driven by defendant Nguyen under the circumstances.” (Emphasis added.)
Further, in summarizing the plaintiff s factual claims for the purposes of defendants’ summary judgment motion, the trial judge considered the vehicle to be unsafe when viewed in the light most favorable to the plaintiff, the nonmoving party:
“Plaintiff Tran claims negligent entrustment in this case based upon the following facts from the findings of controlling fact. The Court will summarize these.
“One, that [the] Hohensee vehicle was unsafe because it had a frayed shoulder strap on the rear seat, driver’s side seat restraint and that is potentially where the plaintiff, Tran, sat. And for purposes of this motion, the Court will assume that’s *454where he was sitting. And that tire middle row of seats in the van had been removed and that various items, including a tire and a rug, were lying on the floor of tire mini van.
“Tran also claims that a reasonably prudent driver would have inspected the van and found it to be unsafe for the previously stated reasons. Tran contends that Nguyen knowingly operated the van in its existing condition — let me restate that. Tran claims that the fact that Nguyen knowingly operated the vehicle in its existing condition quote, Displayed the fact that he is a careless driver, end quote.” (Emphasis added.)
Clearly, the plaintiff introduced evidence showing that the vehicle was unsafe.
In addition, the defendants admitted to the uncontroverted facts of the plaintiff as follows:
“33. The vehicle owned by the Hohensees, negligently entrusted to defendant Nguyen, and involved in the accident in 2005, was a 1992 minivan.
“34. Plaintiff Tran was a passenger in the back seat of the 1992 minivan owned and negligently entrusted by Mr. and Mrs. Hohensee and negligently driven by defendant Nguyen at the time of the accident.
“35. The middle row of seats had been removed from the 1992 minivan by the Hohensees prior to the date of the accident.
“36. There was a spare tire, a rug, and other loose items, [ lying] on the floor of the 1992 minivan at the time of the accident, and prior thereto.
“38. The shoulder harness for the third row back, left-hand seat, behind the driver, in the 1992 minivan was frayed.
“39. Defendant Hohensee testified in her deposition that plaintiff Tran was in the third row back, left hand seat, behind the driver, in the 1992 minivan when the accident occurred.
“40. Plaintiff Tran was wearing his shoulder harness at the time of the accident.
“49. Plaintiff Tran was found [lying] on the floor, where the missing row of seats would have been, of the 1992 minivan immediately after the accident.”
The plaintiff also set forth uncontroverted facts relating to the unsafe condition of the vehicle as follows:
“41. Defendants Hohensee and defendant Nguyen knew or should have known that by removing the middle row of seats and putting in its place a loose tire, rug and other loose items on the floor as well as the left third row shoulder harness being frayed, that the 1992 minivan was unsafe to operate.
*455“45. Defendants Hohensee knew that despite their minivan’s unsafe condition Defendant Nguyen would nevertheless drive the minivan and would not allow anyone else to drive it.
“46. Defendants Hohensee knew that as the operator, Defendant Nguyen would and did allow a passenger, Mr. Tran, to sit in the seat with the unsafe frayed shoulder harness even though it and the tire and other loose items on the floor presented a clear danger to Mr. Tran.
“50. Defendant Nguyen at no point in his deposition, or at any other time, has stated or even suggested that he attempted to secure down the spare tire, or any other loose items in the back of the 1992 minivan owned by the Hohensees.
“51. Defendant Nguyen at no point in his deposition, or at any other time, has stated or even suggested that he checked the safety of the shoulder harness in the 1992 minivan before allowing plaintiff Tran to be a passenger in the vehicle.”
“A seat belt, by its very nature, is designed to prevent 'second collision injuries and has been effective in doing so. [Citation omitted.]” McMahon v. Butler, 73 App. Div. 2d 197, 198-99, 426 N.Y.S.2d 326 (1980). Moreover, by “restraining the [vehicle] occupant during and immediately after initial impact. . ., it significantly reduces the likelihood of ejection and frequently prevents 'the second collision’ of the occupant with the interior portion of the vehicle.” Spier v. Baker, 35 N.Y.2d 444, 452, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974).
In considering the plaintiffs 54 paragraphs of uncontroverted facts submitted in response to the defendants’ renewed motion for summary judgment, the trial court stated the following:
“[W]e have a total of 54 paragraphs of uncontroverted facts and the Defendants] Hohensee [have] responded to those in many instances [and have] admitted for purposes of this motion these facts and [in] some instance[s] [are] claiming they are not material. The Court also finds that these additional facts when taken into consideration for the motion will be part of the Court’s finding of controlling fact[s].” (Emphasis added.)
See Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 226) (“In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule 165 [2009 Kan. Ct. R. Annot. 239].”). (Emphasis added.)
In other words, for the purposes of the summary judgment motion, the trial court would consider plaintiff s 54 paragraphs of un*456controverted facts as part of the controlling facts. Moreover, the trial court would construe plaintiff s 54 paragraphs of uncontroverted facts in the light most favorable to the plaintiff in determining whether a legal theory existed which would afford the plaintiff legal relief under those additional facts.
The 54 paragraphs of uncontroverted facts and the trial court’s summary of the plaintiff s factual allegations are at least analogous to, if not a perfect example of, the theory of negligent entrustment under Restatement (Second) of Torts § 389, which states:
“One who supplies directly or indirectly or through a third person a chattel for another’s use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.” (Emphasis added.) (Language is same as in prior Restatement [First] of Torts § 389 [1934].)
Our Supreme Court applied the prior Restatement (First) § 389 in Bergstresser, 142 Kan. at 92, where it stated:
“If the seller should know the automobile is incapable of safe use, but is capable of being made safe for use, his duiy would be discharged by giving the information relating to its condition, unless from facts known, or which he should know, the seller should realize there is substantial probability the buyer will use the automobile without remedying the defects. (Restatement [First], Torts, § 389 [1934], and Comment c.) In that event, turning the dangerously defective automobile over to a buyer, who will likely put it to immediate use in its defective condition, would resemble turning a safe automobile over to a driver known to be unfit to use it. [Citation omitted.]” (Emphasis added.)
As stated earlier, Restatement (Second) of Torts § 389 is predicated on the supplying of an unsafe chattel, while the initial negligent entrustment theoiy that plaintiff seemed to rely on is predicated on supplying a chattel to a person known to be incompetent or unsafe (Restatement [Second] of Torts § 390). As a result, a Restatement § 389 negligent entrustment theory does not hinge on the supply of the chattel to an incompetent or negligent user, but on the nature of the chattel’s unsafe condition. Indeed, under *457Restatement § 389, liability is imposed when it is shown that the supplier knew, or should have known, that the chattel supplied is unsafe for its expected use.
When all is considered, such admissions as the following state a cause of action, at least preliminarily, under Restatement § 389, against the defendants for injuries to the plaintiff resulting from the vehicle’s unsafe condition: (1) the defendants’ admissions to the plaintiffs uncontroverted facts, (2) the trial court’s consideration of the plaintiffs 54 paragraphs of uncontroverted facts submitted in response to the defendants’ renewed motion for summary judgment, and (3) the trial court’s summary of the plaintiff s factual allegations that the defendants supplied a vehicle, knowing it to be in an unsafe condition for operation, to another person knowing the vehicle would likely be used in its unsafe condition.
Nevertheless, in noting that the plaintiff s negligent entrustment theory was “a creative approach to the application of the negligent entrustment doctrine,” the trial judge determined that the plaintiffs factual basis in support of that theory was legally insufficient as a matter of law:
“[THE COURT:] In reviewing the claims of negligent entrustment of Plaintiff Tran, the Court would note that this is a creative approach to the application of the negligent entrustment doctrine; however, the factual basis for negligent entrustment asserted by Plaintiff Tran is legally [in]sufficient as a matter of fact and therefore the [Defendants’] motion for summary judgment is granted.
“[Appellant’s Attorney]: Repeat to me about summary judgment, your last statement.
“THE COURT: Repeat what portion of my last statement?
“[Appellant’s Attorney]: You said that—
“THE COURT: I found that it was legally insufficient as a matter of law, the factual basis to support your claim negligent entrustment was legally insufficient as a matter of law.”
It would seem that the trial court ignored the plaintiffs additional allegations of uncontroverted facts, which the trial court stated that it would consider as controlling facts, and accepted instead the defendants’ contention that no such negligent entrustment theory could be made under those allegations.
*458Moreover, perhaps sensing that there is no valid reason for not holding the trial court to its consideration of plaintiff s 54 paragraphs of uncontroverted facts as “part of the Court’s finding of controlling fact[s],” the majority now says that “we refuse to apply an alternative theory of negligent entrustment under Restatement (Second) of Torts because that theory was never pled or asserted by the plaintiff despite multiple opportunities to do so.” Slip op. at 9. Instead of liberally construing those uncontroverted facts in favor of the plaintiff, the majority prefers to focus on limiting the plaintiffs negligent entrustment claim to his pleaded facts. The problem with this argument of the majority is that the trial court broadened the facts that it would consider to include the plaintiffs 54 paragraphs of uncontroverted facts. Moreover, the trial court made those uncontroverted facts controlling facts for the purposes of the defendants’ motion for súmmary judgment. Those facts, at least preliminarily, stated a cause of action against the defendants under Restatement (Second) of Torts § 389.
Fact Questions
Restatement § 389, as previously mentioned, acknowledges a duty where the supplier of a chattel knows or has reason to know that the chattel “is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put.” Here, the facts indicate that defendants were aware that the driver did not undertake any precautionary measures concerning the vehicle. As a result, there is an issue of fact as to whether the defendants knew or had reason to know that the vehicle was unlikely to be made reasonably safe before the plaintiff (the end user) was to use it.
A related question is whether the driver’s use of the vehicle occurred so soon after the defendants supplied him with the vehicle that it was unlikely that the vehicle would be made safe. This point is discussed in Restatement § 389, comment c, as follows:
“Even though a chattel when turned over to another for his own or a third person’s use is in a condition dangerous for the use for which it is intended, the circumstances may be such that the supplier as a reasonable man has no reason to believe that it is unlikely that the chattel will be made safe before being used. On the other hand, the circumstances may be such that although the chattel is *459capable of being made safe for use, the person supplying it should realize the unlikelihood that this will be done before it is used. Among circumstances which render this unlikely are the facts that the chattel is to be used so soon after it is turned over that it is substantially certain that no change will be made in it ... . It is, however, not enough to bring the situation within the rule stated in this Section that the supplier of the chattel should merely suspect that the chattel will be used before it is made safe. A substantial probability is necessary.” (Emphasis added.)
Therefore, even if the vehicle “was capable of being made safe for use,” the Restatement indicates the importance of a jury deciding whether the defendants realized the unlikelihood that the vehicle would be made safe before it was used. Summary judgment was inappropriate under the principles of Restatement § 389.
There is no denying that if the trial court’s controlling facts are to be ignored and the common-law negligent entrustment theory under Restatement § 389 is to be repudiated, the plaintiff has no valid negligent entrustment claim against the defendants as the majority opines. But such an opinion can be predicated only on the majority ignoring the trial court’s controlling facts. I would hold the trial court to its controlling facts, which brought the plaintiff s claim within the negligent entrustment theory under Restatement § 389. At this stage in the case, when the discovery deadline had not yet run and a pretrial conference had not been held, I would hold that the defendants’ motion for summary judgment was prematurely granted and, therefore, must be reversed.