Negligent entrustment is a tort where a person entrusts a dangerous article to another where the lender knows, or should have known, that the person was likely to use the object in a manner that would cause an unreasonable risk of harm to others. The first issue that needs to be established is that the person charged with negligent entrustment must have had a superior right to control the article. For example, if a mother lends her vehicle to her son and her son lends it to his friend and the friend runs over someone with the vehicle the mother, not the son, will be charged with negligent entrustment because she was the one with the superior claim over the vehicle. Thus the injured party will need to prove a case that the son should not have been entrusted with the vehicle. Illinois provides a narrower definition than the one from the Restatement (Second) of Torts. It is best to check with the laws of your state for the most accurate definition. Illinois also does not require that the object entrusted be inherently dangerous and objects, such as cars, can fit into the definition so long as it can be proven that the use of the object was a result of inexperience or recklessness of the entrustee that should have been known by the entrustor.

The next issue is the one of contributory negligence. Under this theory an entrustee is either totally or not at all liable for the injuries of the plaintiff. If the entrustee is not at all liable, then the entrustor cannot be held liable either. However if an entrustee is found to be liable then there are two theories under which an injured party may collect: the respondeat superior theory or the negligent entrustment theory. Respondeat superior applies to employment situations of a principal-agent nature and negligent entrustment would apply to all other situations. Thus, when a principal admits to responsibility for the agent, no further analysis is needed as 100% would be assigned to the principal and no analysis of the entrustor-entrustee relationship is necessary.

In 1991 Illinois recognized comparative negligence in negligent entrustment cases. The contributory theory of assigning negligence would not fit well in a comparative negligence jurisdiction as a court assigns percentages based on the negligence of each of the parties. Assigning 100% to one party would defeat the purpose of creating a comparative negligence recovery scheme as it is not realistic to how accidents occur. However, with comparative negligence an injured party is able to maintain a separate action for negligent entrustment against the entrustor-principal and the entrustee-agent even when a principal admits to responsibility for the agent. Illinois has taken this approach.


This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases.

Consult an attorney in your area for further guidance. If you were injured by an accident please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.