DeWester v. Watkins

riCHarD a. D eweSter , perSonal repreSentative of tHe
eState of linDSeY D eweSter , DeCeaSeD, appellant , v .
kYle w. watkinS, an inDiviDual , appellee .
745 N.W.2d 330
Filed February 29, 2008. 	No. S-06-230.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Negligence. It 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 or
herself in the activity in such a manner as to create an unreasonable risk of harm
to others.
4. Negligence: Liability. One who supplies a chattel for the use of another whom
the supplier knows or has reason to know to be likely because of his or her youth,
inexperience, or otherwise, to use it in a manner involving unreasonable risk of
physical harm to himself or herself 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.
5. Negligence: Motor Vehicles. The law requires that an owner use care in allowing
others to assume control over and operate his or her automobile, and holds the
owner liable if he or she entrusts the automobile to, and permits it to be oper-
ated by, a person whom the owner knows or should know to be an inexperienced,
incompetent, or reckless driver, or an intoxicated driver, or a driver otherwise
incapable of properly operating an automobile without endangering others.
6. Negligence: Motor Vehicles: Damages. A person who authorizes or permits a
motor vehicle under his or her control to be driven by an unlicensed driver, in
violation of the Motor Vehicle Operator’s License Act, is guilty of negligence and
may be liable for damages proximately resulting from the negligent operation of
the motor vehicle.
7. Negligence. Negligent entrustment should be defined with reference to control of
the entrusted property.
8. Negligence: Liability. A defendant’s ownership of entrusted property is not a
prerequisite for liability for negligent entrustment.
9. ____: ____. To be liable for negligent entrustment, the defendant must have had
the authority to permit or prohibit the entrustee’s use of the entrusted property.
10. Negligence: Case Overruled. To the extent that Vilas v. Steavenson, 242 Neb.
801, 496 N.W.2d 543 (1993), holds that legal ownership of entrusted property is
an essential element of a negligent entrustment claim, it is overruled.
DeWESTER v. WATkINS 	173
Cite as 275 Neb. 173
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

174 	275 NEbRASkA REPORTS
Petition for further review from the Court of Appeals, inboDY,
Chief Judge, and C arlSon and moore, Judges, on appeal thereto
from the District Court for Dundy County, J oHn J. batterSHell,
Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
Andrew J. Wilson and kylie A. Wolf, of Walentine, O’Toole,
McQuillan & Gordon, for appellant.
Martin J. Troshynski, of Ruff, Lindemeier, Gillett, Dawson &
Troshynski, for appellee.
H eaviCan , 	C.J., 	wriGHt , 	C onnollY, 	G errarD, 	S tepHan ,
mCC ormaCk , and miller -lerman , JJ.
G errarD, J.
kyle W. Watkins’ father purchased a vehicle and provided
it to kyle for his use. kyle permitted Lindsey DeWester, a 14-
year-old girl without a driver’s license, to drive the vehicle.
Lindsey lost control of the vehicle and was killed in the resulting
accident. Lindsey’s estate sued kyle for wrongful death, alleging
that kyle had negligently entrusted the vehicle to Lindsey. The
issue presented in this appeal is whether a claim for negligent
entrustment of property can be brought against a defendant who
had the right to control the property, but was not its legal owner.
We conclude that such a claim may be brought and, therefore,
direct that this cause be remanded back to the district court which
had entered summary judgment in favor of the defendant.
bACkGROUND
The accident occurred 3 days before kyle’s 17th birthday.
kyle and a friend had been drinking beer and “cruising around
town” in a Jeep Cherokee. kyle and his father both testified that
his father owned the Jeep and paid for its expenses, but that
kyle was the Jeep’s primary driver. kyle’s father had his own
vehicle and did not keep a set of keys for the Jeep with him.
kyle’s father testified that he specifically recalled telling kyle
not to permit other people to drive the Jeep.
kyle and his friend stopped at a local convenience store,
where Lindsey saw them. kyle knew Lindsey from school, and

they had socialized after school and on weekends. kyle and
his friend went into the convenience store bathroom, and when
they returned to the Jeep, Lindsey was in the driver’s seat. kyle
had left the Jeep’s doors unlocked and the keys in the ignition,
but had not expected Lindsey to get in the car. Lindsey was
14 years old, and kyle knew Lindsey did not have a driver’s
license. Nevertheless, kyle’s friend got in the front passenger
seat, and kyle sat in the back seat, behind his friend.
After kyle and his friend got in the Jeep, Lindsey “took off
down the road.” Lindsey wanted to drop kyle’s friend off at his
house and took a county road. It was dark, and the road and
T-shaped intersection they were approaching were unlit. kyle
testified that Lindsey “looked up all of a sudden, I guess, and
she tried to jerk the wheel because she saw that there was no
more road.” The Jeep rolled over. None of the three occupants
had been wearing seatbelts, and Lindsey was ejected from the
vehicle. Lindsey died as a result of the accident.
Lindsey’s father, Richard A. DeWester, as personal represen-
tative of Lindsey’s estate, sued kyle, alleging negligent entrust-
ment of the Jeep. (The estate also sued Dundy County, but the
county has been dismissed with prejudice and is not a party to
this appeal.) The district court entered summary judgment in
favor of kyle, because the Jeep was owned by kyle’s father,
not kyle. The Nebraska Court of Appeals affirmed,1 conclud-
ing that it was bound to do so by this court’s holding in Vilas
v. Steavenson,2 which will be discussed at greater length below.
The estate petitioned for further review, arguing, among other
things, that Vilas should be overruled. We sustained the estate’s
petition for further review.
ASSIGNMENTS OF ERROR
The estate assigns that the Court of Appeals erred in affirm-
ing the district court’s decision sustaining kyle’s motion for
summary judgment.
1 See DeWester v. Dundy County, No. A-06-230, 2007 WL 2372615 (Neb.
App. Aug. 21, 2007) (not designated for permanent publication).
2 Vilas v. Steavenson, 242 Neb. 801, 496 N.W.2d 543 (1993).
DeWESTER v. WATkINS 	175
Cite as 275 Neb. 173

176 	275 NEbRASkA REPORTS
STANDARD OF REVIEW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law. In reviewing a summary
judgment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence.3
ANALYSIS
[3,4] The tort of negligent entrustment is explained by the
Restatement (Second) of Torts § 308, which states that
[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.4
And the Restatement, § 390, explains, in a “special application”
of § 308,5 that
[o]ne who supplies . . . 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 physi-
cal 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.6
[5] While we have previously not expressly adopted § 308 or
§ 390, we conclude that they accurately reflect Nebraska law.
We have adopted closely related sections of the Restatement,7
3 Fokken v. Steichen, 274 Neb. 743, 744 N.W.2d 34 (2008).
4 Restatement (Second) of Torts § 308 at 100 (1965).
5 See id., § 390, comment b. at 315.
6 Id., § 390 at 314.
7 See, Colvin v. Powell & Co., Inc., 163 Neb. 112, 77 N.W.2d 900 (1956);
Driekosen v. Black, Sivalls & Bryson, 158 Neb. 531, 64 N.W.2d 88 (1954).

and more importantly, we adopted the substance of § 390, in
the context of motor vehicles, in Deck v. Sherlock.8 In Deck,
a plaintiff injured in an automobile accident sued the driver of
the other automobile and the automobile owner who had loaned
his vehicle to the driver. The plaintiff’s evidence showed that
the owner and driver had been drinking together and that the
owner could have known at the time the vehicle was loaned
that the driver intended to continue drinking. In concluding that
an issue of fact was presented as to the owner’s liability to the
plaintiff, we explained that the “controlling rule” was
[t]he law requires that an owner use care in allowing oth-
ers to assume control over and operate his automobile,
and holds him liable if he entrusts it to, and permits it to
be operated by, a person whom he knows or should know
to be an inexperienced, incompetent, or reckless driver,
to be intoxicated or addicted to intoxication, or otherwise
incapable of properly operating an automobile without
endangering others.9
In Deck, we framed the rule in terms of the “owner” of the
automobile, because the defendant in that case was the owner.10
And we adhered to that phrasing in Wagner v. Mines,11 another
negligent entrustment case in which the defendant was the
owner of the vehicle. In neither case were we required to, nor
did we, address whether legal ownership of the vehicle was
required to establish liability.
but in Vilas,12 this court confronted a situation similar to
that presented here, in which the plaintiff sued both a son
who had loaned a vehicle to an underage driver and the father
who owned the vehicle at issue. The Vilas court discussed the
liability of the father at length, concluding that the doctrine
8 Deck v. Sherlock, 162 Neb. 86, 75 N.W.2d 99 (1956).
9 Id. at 90-91, 75 N.W.2d at 102. Accord, Gibb v. Strickland, 245 Neb. 325,
513 N.W.2d 274 (1994); Vilas, supra note 2; Wagner v. Mines, 203 Neb.
143, 277 N.W.2d 672 (1979); Suiter v. Epperson, 6 Neb. App. 83, 571
N.W.2d 92 (1997).
10 See Deck, supra note 8.
11 Wagner, supra note 9.
12 Vilas, supra note 2.
DeWESTER v. WATkINS 	177
Cite as 275 Neb. 173

178 	275 NEbRASkA REPORTS
of negligent entrustment did not apply to the father because
he had not knowingly entrusted the vehicle to the underage
driver. The Vilas court then concluded, without discussing
the issue, that “[i]t also appears that the doctrine of negligent
entrustment does not apply to [the son] since he did not own
the vehicle.”13
That conclusion, however, is inconsistent with both the
Restatement and the overwhelming weight of authority from
courts to have considered the issue. As previously noted, § 308
of the Restatement applies to activity that is “under the control
of the actor.”14 And comment a. to § 308 explains that
[t]he 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 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.15
based on the Restatement’s reasoning, most courts have
framed the relevant issue in a negligent entrustment case as
whether the defendant in a negligent entrustment action had the
right to control the entrusted property, with ownership simply
being one way of proving a right to control. As the Illinois
Supreme Court explained, “entrustment must be defined with
reference to the right of control of the subject property. In
essence, if the actor does not have an exclusive or superior
right of control, no entrustment of the property can occur.”16 A
right to control does not always mean ownership, but generally
means that the defendant must have a greater right of posses-
sion or control than the entrustee.17
Given that, it is hardly surprising that the overwhelming
majority of courts to have analyzed the issue have concluded
13 Id. at 810, 496 N.W.2d at 550.
14 Restatement, supra note 4, § 308 at 100.
15 Id., comment a. at 100.
16 Zedella v. Gibson, 165 Ill. 2d 181, 187, 650 N.E.2d 1000, 1003, 209 Ill.
Dec. 27, 30 (1995).
17 Neary v. McDonald, 956 P.2d 1205 (Alaska 1998).

that a nonowner who has control of a vehicle can be held liable
for negligently entrusting the vehicle.18 Certificates of title
and other incidents of legal ownership are often documents of
convenience, rather than reflections of the actual possession
and control of a vehicle.19 And the basis for liability under
the doctrine of negligent entrustment is the power to permit
and prohibit the use of the entrusted chattel, which need not
arise from legal ownership.20 Holding otherwise produces the
paradox that even the grossest negligence can be insulated from
liability, so long as the person deciding who can drive a car is
not the person who legally owns it.
[6] We also note that under the Motor Vehicle Operator’s
License Act,21 it is a Class III misdemeanor22 for any person
“[t]o authorize or knowingly permit a motor vehicle owned by
him or her or under his or her control to be driven upon any
highway by any person who is not authorized under the act or
is in violation of any of the provisions of the act . . . .”23 And
we have held that a person who violates that statute “is guilty
of negligence and liable for damages proximately resulting
18 See, Harrison v. Carroll, 139 F.2d 427 (4th Cir. 1943) (applying Virginia
law); Green v. Harris, 70 P.3d 866 (Okla. 2003); Estate of Trobaugh v.
Farmers Ins. Exch., 623 N.W.2d 497 (S.D. 2001); Neary, supra note 17;
Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436 (1997); Ransom v. City of
Garden City, 113 Idaho 202, 743 P.2d 70 (1987); Chiniche v. Smith, 374 So.
2d 872 (Ala. 1979); Dicranian v. Foster, 114 Vt. 372, 45 A.2d 650 (1946);
Salamone v. Riczker, 32 Mass. App. 429, 590 N.E.2d 698 (1992); Cameron
v. Downs, 32 Wash. App. 875, 650 P.2d 260 (1982); Jones v. Cloud, 119 Ga.
App. 697, 168 S.E.2d 598 (1969). See, also, Tissicino v. Peterson, 211 Ariz.
416, 121 P.3d 1286 (Ariz. App. 2005); Williams v. Bumpass, 568 So. 2d 979
(Fla. App. 1990) (negligent entrustment of firearm). Cf., McGinnis v. Hand,
293 Mont. 72, 972 P.2d 1126 (1999); Zedella, supra note 16. but see Coble
v. Knight, 130 N.C. App. 652, 503 S.E.2d 703 (1998).
19 See Green, supra note 18.
20 See Broadwater, supra note 18.
21 Neb. Rev. Stat. §§ 60-462 to 60-4,188 (Reissue 1998 & Supp. 2001).
22 See § 60-4,111.
23 § 60-491(10) (emphasis supplied).
DeWESTER v. WATkINS 	179
Cite as 275 Neb. 173

180 	275 NEbRASkA REPORTS
from the negligent operation of the motor vehicle.”24 Although
Vilas cited that proposition, the court’s eventual conclusion was
inconsistent with the statute.
[7,8] In this case, the district court entered summary judg-
ment for kyle based on the rule announced in Vilas, and the
Court of Appeals affirmed that judgment because the doctrine
of vertical stare decisis compelled it to strictly follow Vilas.25
The estate argues that Vilas was wrongly decided and should be
overruled. We agree. We are persuaded by the Restatement, the
reasoning of other courts to have decided the issue, and our own
authority giving effect to the clearly articulated public policy
of the Motor Vehicle Operator’s License Act, that negligent
entrustment should be defined with reference to control of the
entrusted property, and a defendant’s ownership of the property
is not a prerequisite for liability for negligent entrustment.26
[9,10] In other words, to be liable for negligent entrustment,
the defendant must have had the authority to permit or prohibit
the entrustee’s use of the entrusted property. but control of
the entrusted property is the essential element of a negligent
entrustment claim, not legal ownership.27 To the extent that
Vilas28 holds otherwise, it is overruled.
kyle cites cases that he claims support a rule that a nonowner
cannot be held liable for negligent entrustment. but those cases
present circumstances in which the nonowner defendant was
alleged to have negligently entrusted the property to the owner
of the property, who was usually intoxicated.29 Stated colloqui-
ally, the question in those cases was whether the defendant had
a legal duty not to return a drunk driver’s car keys. Even on that
24 Gertsch v. Gerber, 193 Neb. 181, 184, 226 N.W.2d 132, 134 (1975). Accord,
Vilas, supra note 2; Wagner, supra note 9. See, also, Keller v. Wellensiek,
186 Neb. 201, 181 N.W.2d 854 (1970); Walker v. Klopp, 99 Neb. 794, 157
N.W. 962 (1916).
25 See DeWester, supra note 1, citing Sanford v. Clear Channel Broadcasting,
14 Neb. App. 908, 719 N.W.2d 312 (2006).
26 See, Zedella, supra note 16; Tissicino, supra note 18.
27 Tissicino, supra note 18.
28 Vilas, supra note 2.
29 See, e.g., Coble, supra note 18 (citing cases).

point, there is a division of authority.30 but obviously, when the
issue is control of the vehicle, entrusting a vehicle to its owner
presents a complication in that the defendant arguably had no
authority to deny the vehicle to someone with a superior right
to its possession. Decisions addressing that issue are easily
distinguishable from this case, and there is no need for us to
reach that issue here.
We also note a division of authority regarding the issue of
contributory negligence under a comparative negligence statu-
tory scheme, where the plaintiff is also the entrustee.31 Although
kyle alleged contributory negligence in his answer, it was nei-
ther raised in support of kyle’s motion for summary judgment
nor addressed by the district court, and it is not before us in
this appeal. The sole issue presented here is whether a claim
for negligent entrustment can be stated against a defendant who
had the right to control the property, but was not its legal owner.
We have concluded that it can.
CONCLUSION
A defendant’s ownership of entrusted property is not a pre-
requisite to liability for negligent entrustment. While we rec-
ognize that the district court and Court of Appeals concluded
otherwise because they were bound by this court’s precedent,
we nonetheless reverse the judgment of the Court of Appeals
and remand the cause to that court with directions to reverse
the judgment of the district court and remand the cause for
further proceedings.
reverSeD anD remanDeD witH DireCtionS.
30 Compare, e.g., id.; Weeks v. City of New York, 181 Misc. 2d 39, 693
N.Y.S.2d 797 (1999).
31 Compare, e.g., King v. Petefish, 185 Ill. App. 3d 630, 541 N.E.2d 847, 133
Ill. Dec. 636 (1989); Herbert v. Whittle, 69 Md. App. 273, 517 A.2d 358
(1986).
DeWESTER v. WATkINS 	181
Cite as 275 Neb. 173
S tepHan, J., concurring.
This is an unusual negligent entrustment case in that it
involves only two parties: the person alleged to have negli-
gently entrusted the motor vehicle and the personal represen-
tative of the party to whom the vehicle was entrusted. The

182 	275 NEbRASkA REPORTS
katHerine r. napleton revoCable S elf -D eClaration of truSt ,
appellant , v . vatterott eDuCational C enterS, inC.,
a miSSouri Corporation , appellee .
745 N.W.2d 325
Filed February 29, 2008. 	No. S-06-1032.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
typical negligent entrustment case involves at least three par-
ties, including the person who entrusts the vehicle to another,
the entrustee whose negligent operation causes an injury, and
the injured party who seeks compensation. We have held in
such cases that negligent entrustment standing alone does
not establish liability; it must also be shown that the driver
to whom the vehicle was entrusted negligently caused the
plaintiff’s injury.1
As a matter of general principle, I agree with the court’s
holding today that one who controls access to a motor vehicle
may be held liable for negligent entrustment, even if he or she
is not the owner. but I reserve judgment on the question of
whether a negligent entrustment claim can ever be asserted by
or on behalf of the entrustee whose own negligence is a proxi-
mate cause of an accident and resulting injury. This issue was
not briefed or argued in this appeal, and as the majority notes,
it would require an evaluation of the parties’ respective claims
under Nebraska’s comparative negligence statute, which cannot
be undertaken on this record. There may be other considerations
as well. Thus, I concur in the judgment of the court, leaving
to another day the question of whether negligent entrustment,
standing alone, can establish liability to an entrustee.
1 See, e.g., Gertsch v. Gerber, 193 Neb. 181, 226 N.W.2d 132 (1975).