dissenting:
I concur in Chief Justice Shepard’s dissenting opinion. This case can be decided simply on the basis that the trial court did not err in granting summary judgment based upon the plaintiff’s factual claim of negligent entrustment.
In Kinney v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973), this Court unanimously held that if a person negligently entrusts his vehicle to one who he knows is intoxicated, he may be liable for injury caused by that person’s operation of the entrusted vehicle. No member of the Court today questions the continued vitality and desirability of the rule laid down in Kinney. However, in the present case, the officer did not own the vehicle, nor did he entrust it to the passenger in the vehicle to drive. The record is uncontroverted that the officer specifically directed the passenger not to drive the vehicle. No one has questioned that fact. Accordingly, the negligent entrustment rule announced in Kinney v. Smith, supra, is inapplicable in this case and the trial court correctly granted summary judgment for the defendant.
The Court nevertheless imposes liability upon the City of Garden City, not because the officer negligently entrusted his own motor vehicle to an intoxicated person, but because the officer left the keys of the arrested person’s vehicle with the passenger so that he could follow the officer’s instructions and deliver the keys to the wife of the owner so that she could remove the vehicle to their place of residence. The keys did not belong to the officer, and having exercised the discretion given him under the statute not to impound the vehicle, the officer had no right to keep them. He was under some duty to see that the keys got to the wife of the rightful owner so that she could have the use of their motor vehicle.
Even though the officer specifically directed the passenger not to operate the motor vehicle, the majority holds that the City of Garden City may be liable because the officer did not eliminate all means of the passenger from operating the motor vehicle. Today’s case goes far beyond anything which this Court approved in Kinney v. Smith, supra.
The potential ramifications of today’s case go far beyond the field of automobiles. For example, if the police officer is now called to the home where a family dispute is in progress, does he dare leave the scene without first removing all dangerous weapons or other potentially dangerous objects at the risk of being held responsible for “negligently entrusting” those objects to one of the occupants who subsequently assaults or kills a member of the household with it? By what authority would he remove such objects?
Today’s “negligent entrustment of keys” case may well be tomorrow’s “negligent entrustment of a dangerous object” case. The potential for further expansion of liability is limitless. Kinney v. Smith, supra, does not support the expanded rule adopted by the Court today. Accordingly, I dissent.