June 10, 2015 – Isabel Armenta, Personal Representative for Estate of Manuel Armenta, Deceased v. A.S. Horner, Inc., a New Mexico corporation, John Doe I and John Doe II, No. 33,813

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ June 10, 2015

NO. 33,813

ISABEL ARMENTA, Personal Representative
for ESTATE OF MANUEL ARMENTA, Deceased,

Plaintiff-A ppellant,
V.

A.S. HORNER, INC., a New Mexioo corporation,
JOHN DOE I and JOHN DOE ITI,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Clay Campbell, District Judge

Law Office of Mel B. O’ Reilly, LLC
Mel B. O’ Reilly
Albuquerque, NM

for Appellant

Johnson Law Firm, L.C.
Thomas L. Johnson
Andrew L. Johnson

Albuquerque, NM

for Appellee

OPINION
BUSTAMANTE, Judge.
{1} 	In this appeal from the grant of summary judgment to A.S. Horner, Inc.
(Defendant), we address whether there exist disputed material facts as to (1) whether
the Workers’ Compensation Act provides the exclusive remedy for Isabel Armenta’s
claim, and (2) whether Defendant negligently entrusted one of its vehicles to Manuel
Armenta (Manuel), Plaintiff’s husband and decedent. We reverse.
BACKGROUND
{2} 	Isabel Armenta, (Plaintiff), personal representative of the estate of her husband,
Manuel, 	brought 	suit 	against 	Manuel’s 	employer, 	Defendant, 	for 	negligent
entrustment after Manuel was killed in a single-car accident while driving Defendant’s
vehicle. The undisputed facts leading to Manuel’s death are as follows. Manuel and
a number of other workers were sent to Springer, New Mexico, to work on road
maintenance on I-25. Defendant arranged for motel rooms for some of its workers,
including Manuel, while they were in Springer. During the last week of work in
Springer, Defendant provided a Chevy Suburban vehicle to transport some of the
workers from Albuquerque to Springer.
{3} 	Because Manuel had been convicted for driving while intoxicated in 2001,
Defendant’s safety director had determined that Manuel would not be permitted to

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drive Defendant’s vehicles, and he was listed on Defendant’s “do not drive” list.
Nevertheless, although the parties dispute whether Manuel was issued the Suburban
in Albuquerque, they agree that at some point Manuel drove the vehicle after it was
picked up from Defendant’s facility. They also agree that after work on the day of the
accident, Manuel drove the Suburban from the motel to the grocery and liquor stores
and returned with supplies for a barbecue with the other employees. The employees
at the motel, including Manuel’s supervisor, had pitched in money to purchase these
supplies. Both Manuel’s supervisor and a superintendent employed by Defendant
knew 	that 	Manuel 	had 	driven 	the 	Suburban 	to 	or 	while 	in 	Springer. 	The
superintendent had advised Manuel in the week before the accident that Defendant’s
vehicles were supposed to be parked after work hours, except that they could be used
to pick up supplies needed for the night. In addition, on the evening of the accident,
after eating dinner with the employees and as he was leaving for his room, Manuel’s
supervisor told the employees, including Manuel, “to drink moderately and to not
leave [the motel].”
{4} 	In spite of this warning, Manuel and another employee left the motel in the
Suburban headed toward Raton. Manuel was killed in an accident about five miles
north of Springer on I-25. Manuel’s blood alcohol concentration (BAC) was .23 at the
time of his death.

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DISCUSSION
{5} 	Defendant argued in the motion for summary judgment that Plaintiff’s claims
“are barred by the exclusivity provisions of the Workers’ Compensation Act” or,
alternatively, “Plaintiff cannot meet the requisite evidentiary standard of gross
negligence and reckless disregard set forth in Sanchez v. San Juan Concrete Co.,
1997-NMCA-068, 123 N.M. 537, 943 P.2d 571.” It is not clear from the district
court’s order on which basis summary judgment was granted. Defendant points to the
district court’s oral rulings as evidence that summary judgment was granted on the
ground that the Workers’ Compensation Act was Plaintiff’s exclusive remedy. But “[a
district] court’s oral statements as to the basis for its ruling, made before judgment is
entered, and not embodied therein, cannot be considered part of the judgment.” In re
Adoption of John Doe, 1982-NMCA-094, ¶ 49, 98 N.M. 340, 648 P.2d 798. We
therefore consider whether summary judgment is appropriate under either theory
advanced by Defendant.
A. 	Workers’ Compensation
{6} 	Defendant argues that the Workers’ Compensation Act (the Act) provides the
exclusive remedy for Plaintiff’s claim because Manuel was a traveling employee
covered by the Act at the time of the accident. See NMSA 1978, §§ 52-1-1 to -70
(1929, as amended through 2013). Generally, “the Act makes workers’ compensation

4
benefits the worker’s exclusive remedy for all accidental injuries.” Salazar v. Torres,
2007-NMSC-019, ¶ 11, 141 N.M. 559, 158 P.3d 449; see § 52-1-9; see also § 52-1-
6(E) (“The Workers’ Compensation Act provides exclusive remedies.”). Section 52-1-
19 precludes compensation under the Act for injuries suffered while going to work or
returning home from work. This provision is known as the “going-and-coming rule.”
Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128 N.M. 601, 995
P.2d 1043. The exception to the going-and-coming rule invoked by Defendant is
known as the “traveling-employee exception.” Id. (internal quotation marks omitted).
{7} 	Under the “traveling-employee exception,” “[t]he general rule is that an
employee whose work entails travel away from the employer’s premises is, in most
circumstances, under continuous workers’ compensation coverage from the time he
leaves home until he returns.” Id. ¶ 11 (internal quotation marks and citation omitted).
“The rationale behind the traveling[-]employee rule is that an employee who is
required to travel away from home is furthering the business of his employer as he
eats, sleeps, and performs other acts necessary to his health and comfort during his
travels.” Id. ¶ 12 (internal quotation marks and citation omitted). A traveling employee
is one who travels to various locations as an integral part of his or her work. Id. ¶ 11.
{8} 	Since the exception applies during the entire time the employee is traveling, it
necessarily encompasses injuries incurred while the employee is not actually working,

5
such as when the employee is engaged in leisure or recreational activities. Id. ¶ 13.
However, “one seeking compensation for an injury must still demonstrate that the
injury arose out of and in the course of employment.” Id. ¶ 14 (internal quotation
marks and citation omitted); see § 52-1-9(B). As it pertains to leisure and recreational
activities by traveling employees, this requirement is “met if the traveling employee
was injured while engaging in an activity that was both reasonable and foreseeable[,]”
id. ¶ 15, and if that activity is not “conducted in an unreasonable or unforeseeable
manner.” Id. ¶ 16. Finally, the activity “must confer some benefit on the employer; .
. . it must be reasonably related or incidental to employment.” Id. “The benefit to the
employer need not be pecuniary, and may be as intangible as a well-fed and well-
rested employee.” Id. ¶ 17.
{9} 	A number of factors define whether a traveling employee’s activity falls within
the reach of the Act. These include “whether the injury takes place within the period
of employment, at a place where the employee may reasonably be, and while the
employee is reasonably fulfilling the duties of employment or doing something
incidental to it.” Chavez v. ABF Freight Sys., Inc., 2001-NMCA-039, ¶ 11, 130 N.M.
524, 27 P.3d 1011 (internal quotation marks and citation omitted). The Chavez Court
stated the factors as “whether the activity was reasonable and foreseeable; whether the
injury occurred during a distinct departure from employment for a personal errand;

6
whether the activity was conducted in an unreasonable or unforeseeable manner; and
whether the activity giving rise to the injury conferred some benefit on the employer.”
Id.; see also Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, ¶ 14, 150 N.M.
164, 258 P.3d 443 (listing additional factors). These factors “represent an attempt to
draw the line between conduct reasonably related to employment and conduct that is
so foreign to and removed from the employee’s usual employment as to constitute an
abandonment thereof.” Chavez, 2001-NMCA-039, ¶ 12 (alteration, internal quotation
marks, and citation omitted).
{10} 	Instead of disputing the basic facts related to the traveling-employee exception,
Defendant simply argues that the exception applies and, therefore, the Act is
Plaintiff’s exclusive remedy. For the most part, Plaintiff does not contest that Manuel
was a traveling employee. Rather, Plaintiff argues that Manuel was not in the scope
and course of employment when the accident occurred. Plaintiff also argues that
Manuel’s conduct was unreasonable and therefore did not fall within the type of
leisure activities encompassed by the Act. Although whether an employee is acting
within the course of employment for purposes of the traveling-employee exception is
generally a question of fact, when the relevant facts are undisputed an appellate court
may resolve the issue as a matter of law. See City of Santa Fe v. Hernandez, 1982-
NMSC-036, ¶ 6, 97 N.M. 765, 643 P.2d 851 (stating that an appellate court may

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determine whether an employee was in the scope of employment as a matter of law
based on undisputed facts); Flavorland Indus., Inc. v. Schumacker, 647 P.2d 1062,
1066 (Wash. Ct. App. 1982) (stating that “[w]hether [the decedent’s] intoxication
constituted an abandonment of his employment was for the jury to decide”). We agree
with Plaintiff that given the undisputed facts here, Manuel was not within the course
of employment when he left the motel in the Suburban in an intoxicated state.
{11} 	First, the parties agree that Manuel was headed to Raton, that Defendant had no
business interests in Raton, and that Manuel was not instructed to go to Raton and
was, in fact, instructed not to leave the motel. Indeed, Defendant agrees that Manuel
“took the vehicle to party in Raton.” Thus, there was no reason related to his
employment for Manuel to be driving the Suburban at all. Second, there is also no
dispute that Manuel had been drinking alcohol before he got in the Suburban, that he
was intoxicated while driving, and that an autopsy after the accident found that
Manuel’s BAC was .23. Even if Manuel’s decision to take the vehicle for a ride could
be considered foreseeable and reasonable conduct under the traveling-employee
exception, doing so under the significant influence of alcohol was not reasonable.
Ramirez, 2000-NMCA-011, ¶ 16 (agreeing with other courts holding that “injury
incurred in an otherwise reasonable and foreseeable recreational activity will not be
compensable if the activity was conducted in an unreasonable or unforeseeable

8
manner”); cf. Estate of Mitchum v. Triple S Trucking, 1991-NMCA-118, ¶ 18, 113
N.M. 85, 823 P.2d 327 (holding that the evidence, including a BAC of .141, the
employee’s admission that he had been drinking the night before the accident, beer
cans found in his truck, and testimony that he smelled of alcohol, was sufficient to
show that the employee was intoxicated); see NMSA 1978, § 66-8-102(C)(1), (D)(1)
(2010) (stating that it is unlawful to drive with a BAC of over .08 and that driving
with 	a 	BAC 	of 	over 	.16 	constitutes 	aggravated 	driving 	while 	intoxicated).
Furthermore, no benefit can have been conferred on Defendant by Manuel’s drinking
excessively. See Ramirez, 2000-NMCA-011, ¶ 16 (stating that “the activity giving rise
to the injury must confer some benefit on the employer”). We conclude that under
these facts, Manuel was not within the course of his employment at the time of the
accident. Cf. Fernandez v. Lloyd McKee Motors, Inc., 1977-NMCA-045, ¶ 4, 90 N.M.
433, 564 P.2d 997 (holding that an employee was not in the scope of his employment
where the employee was driving his employer’s vehicle while intoxicated, was not
pursuing the employer’s business, and did not have permission to drive the vehicle at
that time); Phelps v. Positive Action Tool Co., 497 N.E.2d 969, 971 (Ohio 1986)
(stating that “voluntary intoxication which renders an employee incapable of
performing his work is a departure from the course of employment [and that] when
the employee is injured in that condition, his injury does not arise out of his

1We note that Fernandez, Phelps, and American Safety Razor Co. did not
address the course of employment question in the context of the traveling-employee
exception, and that the analysis in those cases hinged on whether the employee could
carry out his or her duties despite being intoxicated. Here, Manuel was not engaged
in carrying out his duties. Consequently the facts in these cases are not directly
apposite. Nevertheless, we cite these cases for the general principle that severe
intoxication can constitute conduct “so foreign to and removed from the employee’s
usual employment as to constitute an abandonment thereof.” Chavez,2001-NMCA-
039, ¶ 12 (alteration, internal quotation marks, and citation omitted). Citation to these
cases cannot be read to limit our general case law concerning the effect of intoxication
on compensability under the law.
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employment” and holding that an employee with .21 percent BAC was “grossly
intoxicated”); Am. Safety Razor Co. v. Hunter, 343 S.E.2d 461, 463 (Va. Ct. App.
1986) (“An employee may abandon his employment by reaching an advanced state
of intoxication which renders the employee incapable of engaging in his duties.”) 1; see
generally 3 A. Larson, Larson’s Workers’ Compensation Law, § 36.02 (2014). Hence,
the Act does not apply to Plaintiff’s claim. To the extent the district court granted
summary judgment on this basis, we reverse.
B. 	Negligent Entrustment
{12} 	We turn next to whether summary judgment could properly be granted on
Plaintiff’s negligent entrustment claim. We begin with an overview of the law of
negligent entrustment. New Mexico has adopted the general definition of negligent
entrustment from the Restatement (Second) of Torts. See Hermosillo v. Leadingham,
2000-NMCA-096, ¶ 19, 129 N.M. 721, 13 P.3d 79. Section 308 states that

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[i]t is negligence to permit a third person to use a thing or to engage in
an activity which is under the control of the actor, if the actor knows or
should know that such 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.
Restatement (Second) of Torts § 308 (1965). Consistent with this definition, “the
burden is upon the plaintiff to establish that [t]he motor vehicle was driven with the
permission . . . of the defendant[; t]he entrustee was . . . an incompetent driver[; and
t]he defendant had actual or constructive knowledge, . . . that the entrustee was
incompetent.” 8 Am. Jur. 2d Automobiles § 1109 (2015); see Spencer v. Gamboa,
1985-NMCA-033, ¶ 8, 102 N.M. 692, 699 P.2d 623 (stating that to prevail on a
vehicle negligent entrustment claim, a “plaintiff must show that the defendant loaned
the car to a person it either knew or should have known was an incompetent driver,
and the driver’s incompetence caused the injury”). Another section, Section 390,
“states a specialized rule pertinent to automobiles.” Gabaldon v. Erisa Mortg. Co.,
1997-NMCA-120, ¶ 26, 124 N.M. 296, 305, 949 P.2d 1193, aff’d in part, rev’d in part
on other grounds, 1999-NMSC-039, 128 N.M. 84, 990 P.2d 197. Section 390
provides that
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.

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Restatement (Second) of Torts § 390 (1965). A central feature of these definitions is
the act of entrustment, or permission, to use the vehicle. See 61 C.J.S. Motor Vehicles
§ 956 (2015) (stating that “in order that the doctrine apply, it is essential that the
person sought to be held legally responsible have the right of control over the vehicle.
Permission, either express or implied, is thus a prerequisite to a suit for negligent
entrustment of an automobile.” (footnote omitted)). In Gabaldon, this Court observed
that an important aspect of Section 308 of the Restatement (Second) of Torts “is the
idea that the ‘third person is entitled to possess or use the thing or engage in the
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.’ ” Gabaldon, 1997-NMCA-120, ¶ 27 (quoting Section 308
cmt. a of the Restatement (Second) of Torts). Hence a number of negligent
entrustment cases hinge on the presence or absence of such consent. See, e.g.,
McManus v. Taylor, 756 S.E.2d 709, 713 (Ga. Ct. App. 2014) (“Where the
uncontroverted evidence shows that [the driver] took the [vehicle] without [the
owner’s] permission and knowledge, it cannot be said that [the owner] lent [the driver]
the car or otherwise entrusted him with it.”); Butler v. Warren, 582 S.E.2d 530, 532-
33 (Ga. Ct. App. 2003) (holding there was no entrustment where the driver had
permission to drive a truck on the owner’s property but not off of it); Evans v.

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Shannon, 776 N.E.2d 1184, 1193 (Ill. 2002) (holding that where “there was no express
or implied permission granted to [the driver] to use the vehicle at the time the collision
occurred[,] there was no entrustment.”).
{13} 	This principle obviously extends to preclude a negligent entrustment claim
where the owner has prohibited the driver from using the vehicle. Thus, negligent
entrustment does not “impose liability upon the alleged ‘trustor’ for the negligent
operation of a vehicle which he had expressly forbidden the alleged ‘trustee’ to drive.”
Farney v. Herr, 358 S.W.2d 758, 761 (Tex. Civ. App. 1962); accord Favorito v.
Pannell, 27 F.3d 716, 721 (1st Cir. 1994) (“The authorities are in substantial accord
that where the alleged entrustor has prohibited the entrustee from operating the
automobile or using the instrumentality in question, there is no responsibility because
there has been no entrustment.” (internal quotation marks and citation omitted)).
{14} 	Typical vehicle negligent entrustment claims involve claims against an entrustor
by a person injured by a driver. It is clear that under New Mexico law such “third-
party claims” are recognized. 	Sanchez, 1997-NMCA-068, ¶ 11 (“[O]ne who
negligently entrusts a motor vehicle to an incompetent driver may be liable for injury
to a third person caused by the driver’s incompetence.”). In Sanchez, this Court
examined for the first time whether “first-party claims” would also be recognized. In
other words, is an entrustor liable to the entrustee when the entrustee is injured “as a

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result of driving while intoxicated[?]” Id. ¶ 12. The Court began by noting that the
holding in Trujillo v. Trujillo, 1986-NMCA-052, ¶ 1, 104 N.M. 379, 721 P.2d 1310,
which was that “a tavernkeeper who unlawfully serves alcohol to an intoxicated
patron is [not] civilly liable for injuries suffered by the patron as a result of that act[,]”
was later restricted by statute. Sanchez, 1997-NMCA-068, ¶ 16. After passage of
NMSA 1978, Section 41-11-1(B) (1986), “if the tavernkeeper acted with gross
negligence and reckless disregard for the patron’s safety, the tavernkeeper may be
liable to the patron.” Sanchez, 1997-NMCA-068, ¶ 16. Because it concluded that the
balance of policy concerns evident in Section 41-11-1(B) justified extension of this
framework to entrustors, the Court held that “one who entrusts a motor vehicle to an
intoxicated person may be liable to the entrustee if the entrustor acts with gross
negligence and reckless disregard for the safety of the entrustee.” Sanchez, 1997-
NMCA-068, ¶ 20.
{15} 	In Sanchez, the entrustee stated in an affidavit that he told the entrustor, his
employer, that he was “drunk, tired, hung over[,] and unfit to operate [a] cement
truck.” Id. ¶ 26. Nevertheless, the employer “refused to let [him] off work, and
ordered [him] to get [his] truck, load up and begin [his] runs for the day.” Id. Even
though the entrustee told the employer again later in the day that he was drunk and
unfit to drive the cement truck, the employer again refused to release him and “told

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[him he would] be fired if [he] did not continue to work that day.” Id. The entrustee
was injured in a single-car accident in the cement truck. Id. ¶ 2. The Court concluded
that the fact finder could determine that the entrustee “was ordered to drive his truck
despite the fact that he was visibly intoxicated, said he was intoxicated, and asked to
be relieved of duty.” Id. ¶ 28. It further concluded that “[i]f such facts were found, the
fact finder could decide that the [employer] acted with gross negligence and reckless
disregard for [the entrustee’s] safety when he entrusted [the entrustee] with the
[employer’s] truck.” Id. Consequently, summary judgment was improper. Id.
{16} 	But the Sanchez Court did not decide “whether an entrustor should be liable to
a voluntarily intoxicated entrustee for simple negligence,” calling this question “a
more difficult issue.” Id. ¶ 21 (emphasis added). In dicta, the Court recognized that
“the language of Trujillo suggests that voluntary intoxication should be treated as a
special species of fault” and that “some New Mexico authority treats voluntary
intoxication as akin to intentional misconduct,” both factors which weigh against
allowing an intoxicated entrustee to recover from entrustors. Id. ¶ 22 (citing California
First Bank v. State, 1990-NMSC-106, ¶ 34 n.6, 111 N.M. 64, 801 P.2d 646). It also
recognized, however, that the commentary to Section 390 of the Restatement (Second)
of Torts supported liability of entrustors and that this section had been relied upon by
the Colorado Supreme Court to permit recovery by an intoxicated entrustee. Sanchez,

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1997-NMCA-068, ¶ 23 (citing Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992) (en
banc)). Finally, it noted that in adopting comparative negligence principles, “New
Mexico has largely eliminated distinctions between degrees of negligence and there
is a strong presumption against introducing them in our tort law.” Id. ¶ 21.
{17} 	In addition to Colorado, a number of states have recognized a first-party
negligent entrustment cause of action for the injured entrustee that does not depend
on gross negligence. The courts in these cases relied on the fact that in a pure
comparative 	fault 	system, 	the 	entrustor’s 	negligence 	is 	balanced 	against 	the
intoxicated entrustee’s negligence. In Missouri, for example, the Court of Appeals for
the Western District followed Section 390 of the Restatement (Second) of Torts to
hold that “under a pure comparative fault system (like Missouri’s), a plaintiff will not
be barred from recovery, even if his own negligence greatly outweighed that of the
defendant.” Hays v. Royer, 384 S.W.3d 330, 336-37 (Mo. Ct. App. 2012). Similarly,
the Florida District Court of Appeal for the First District held that “an adult drunken
driver who injures himself is entitled to a comparative fault trial predicated on the
theory of negligent entrustment.” Gorday v. Faris, 523 So. 2d 1215, 1218 (Fla. Dist.
Ct. App. 1988) (agreeing with Section 390 of the Restatement (Second) of Torts and
listing states in which a first-party negligent entrustment claim is recognized); accord
Herland v. Izatt, 2015 UT 30, ¶ 33, 345 P.3d 661 (stating that “although there are

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competing social policies that favor and disfavor first-party recovery by an intoxicated
individual, nothing bars first-party recovery as a matter of law. As a result, [the
plaintiff’s] estate may argue for recovery, but the estate must overcome the high
hurdle of comparative negligence in order to prevail, as would any plaintiff whose
injury occurs while he or she is voluntarily intoxicated.”); King v. Petefish, 541
N.E.2d 847, 852 (Ill. App. Ct. 1989) (stating that “a suit brought by an injured
entrustee against his entrustor is a viable cause of action in a comparative negligence
jurisdiction” 	and 	observing 	that 	“the 	[s]tates 	that 	have 	adopted 	comparative
negligence seem to uniformly accept such a cause of action”); Blake v. Moore, 208
Cal. Rptr. 703, 707 (Ct. App. 1984) (stating that the injured plaintiff “is entitled to a
comparative fault trial. This should result in a weighing of [the] defendant’s fault in
entrusting his car to [the] plaintiff with knowledge of the intoxication, and the fault
of [the] plaintiff in drinking and then driving.”).
{18} 	Other states have refused to recognize a first-party claim for an intoxicated
entrustee, reasoning that where contributory or modified comparative negligence
principles apply, the fault of the intoxicated driver will bar recovery. See, e.g., Lydia
v. Horton, 583 S.E.2d 750, 752 (S.C. 2003) (“We believe that this state’s modified
comparative negligence system also bars an intoxicated adult’s recovery on a first
party negligent entrustment cause of action. We cannot imagine how one could be

17
more than fifty percent negligent in loaning his car to an intoxicated adult who
subsequently injured himself.”); Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d
996, 1003 (Ind. Ct. App. 2008) (noting that Indiana follows a modified comparative
fault system and stating that “one who drives while intoxicated is generally more at
fault than one who permits another to drive while intoxicated”); Meachum v. Faw, 436
S.E.2d 141, 145 (N.C. Ct. App. 1993) (stating that “the plaintiffs’ claim is barred by
decedent’s contributory negligence as alleged in the complaint”). Finally, some states
have held that a first-party claim is contrary to the policy of those states because “an
intoxicated person should not generally be permitted to benefit from his or her own
intoxication.” Shultes v. Carr, 512 N.Y.S.2d 276, 277 (1987).
{19} 	Clearly the cases premised on contributory or modified comparative fault
principles are inapposite to New Mexico. We also do not find the blanket prohibition
against first-party claims based on policy concerns as stated in Shultes persuasive
because some policy interests weigh in favor of permitting a first-party claim. We
agree with the Casebolt court “that voluntary intoxication is socially undesirable
conduct and that individual responsibility to refrain from such conduct should be
promoted.” 829 P.2d at 362.
These considerations, however, cannot be permitted to obscure the fact
that a vehicle owner who has the right and ability to control the use of
the vehicle and takes no action to prevent the continued use of the
vehicle by a borrower who the owner knows is likely to operate the

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vehicle while intoxicated is also engaged in morally reprehensible
behavior that should be discouraged.
Id. But see Bailey, 881 N.E.2d at 1003 (disagreeing with the rationale in Casebolt and
stating, “We do not believe that allowing drunk drivers to recover from those who
allow them to drive drunk significantly furthers the already existing public policy
against drunk driving.”). Given that New Mexico adheres to pure comparative
negligence principles, we agree with the court in Casebolt that “[c]omparative
negligence provides the appropriate framework for examining any negligence on the
part of the individual who drives after consuming alcoholic beverages.” 829 P.2d at
362. Thus, we hold that, provided that the elements of negligent entrustment are
proven, an entrustee may state a claim for simple negligent entrustment against the
entrustor when the entrustee’s voluntary intoxication causes injury. Such claims need
not be founded on a showing of gross negligence and reckless disregard as in Sanchez.
{20} 	We now turn back to the facts of the present matter. Plaintiff appeals the grant
of summary judgment to Defendant. On appeal, “we view the facts in the light most
favorable to the party opposing summary judgment, drawing all inferences in favor
of that party” and examine whether “there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law.” Gormley v. Coca-Cola Enters.,
2005-NMSC-003, ¶ 8, 137 N.M. 192, 109 P.3d 280 (internal quotation marks and

19
citations omitted). Our review of the latter question is de novo. Self v. United Parcel
Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.
{21} 	To prevail on a negligent entrustment claim, Plaintiff must show that
“[D]efendant [entrusted] the car to [Manuel when it] knew or should have known
[Manuel] was an incompetent driver, and [Manuel’s] incompetence caused the injury.”
Spencer, 1985-NMCA-033, ¶ 8. Defendant makes no argument as to whether
Manuel’s intoxication caused the accident. The parties’ arguments focus instead on
facts related to the first two elements, including Manuel’s status on Defendant’s “do
not drive” list, the supervisor’s knowledge that Manuel drove the Suburban to
Springer and to pick up groceries and liquor on the night of the accident, and the
supervisor’s knowledge that Manuel was drinking on the night of the accident.
Plaintiff argues that “[f]rom these facts, a jury could make the inference that the
supervisor showed reckless disregard and utter indifference for [Manuel’s] safety or
the safety of others.” We conclude that there is a genuine dispute over whether
Defendant entrusted the Suburban to Manuel and therefore conclude that summary
judgment on Plaintiff’s negligent entrustment claim was inappropriate. We explain.
{22} 	As discussed above, permission is an integral part of an entrustment claim.
Permission may be express or implied. Bishop v. Morich, 621 N.E.2d 43, 45 (Ill. App.
Ct. 1993). “Implied permission to use a motor vehicle can be inferred from a course

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of conduct or relationship between the parties, or other facts and circumstances
signifying the assent of the owner.” Allstate Ins. Co. v. Jensen, 1990-NMSC-009, ¶ 8
n.3, 109 N.M. 584, 788 P.2d 340 (discussing implied consent in the context of
permissive use of an insured vehicle); see Trujillo v. Rivera, 1953-NMSC-064, ¶ 7,
57 N.M. 451, 260 P.2d 365 (holding that the evidence supported a finding of implied
consent for a minor child to use a family vehicle).
{23} 	Based on the undisputed facts, Defendant did not expressly permit Manuel to
drive the Suburban after dinner on the evening of the accident. The superintendent
told Manuel not to drive the Suburban after work hours except to buy supplies and the
supervisor told all the employees at the motel not to drink too much and not to leave
the motel on the night of the accident. Thus, Manuel did not have express permission
to drive the Suburban after dinner that evening.
{24} 	Whether Manuel had implied permission to drive the Suburban that night is a
closer question. Plaintiff argues that because Manuel’s superiors knew that he had the
keys and had been driving it throughout the week, including that night, and because
the supervisor knew that Manuel had been drinking beer that night, they impliedly
consented to his use of the vehicle. Plaintiff also maintains that the superintendent and
supervisor should have told Manuel that he could not drive the Suburban and, because
they did not object to him driving it, their consent was implied. See Gruger v. W. Cas.

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& Sur. Co., 1976-NMSC-068, ¶ 5, 89 N.M. 562, 555 P.2d 683 (“Implied permission
is found when the insured does not expressly give his consent but consent is implied
by his conduct, including lack of objection.”), overruled by United Servs. Auto. Ass’n
v. Nat’l Farmers Union Prop. & Cas., 1995-NMSC-014, 119 N.M. 397, 891 P.2d 538.
{25} 	Viewing the undisputed facts in the light most favorable to Plaintiff, we
conclude that “a reasonable fact[]finder could draw certain inferences and come to
certain conclusions favorable to Plaintiff’s claim.” Juneau v. Intel Corp., 2006-
NMSC-002, ¶ 26, 139 N.M. 12, 127 P.3d 548. Hence, summary judgment on this
issue was inappropriate. Having concluded that there are genuine issues of fact related
to whether Defendant entrusted the vehicle to Manuel, we need not address whether
there are questions of fact related to whether Defendant knew or should have known
that Manuel was intoxicated or otherwise incompetent to drive. “Plaintiff is not
required to show disputed issues of fact for every element of the claim[.]” Id. ¶ 25.
CONCLUSION
{26} 	For the foregoing reasons, we reverse the grant of summary judgment to
Defendant and remand for further proceedings consistent with this Opinion.
{27} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

M. MONICA ZAMORA, Judge

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