OPINION
{1} In this appeal from the grant of summary judgmentto 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 Armenia’s claim, and (2) whether Defendant negligently entrusted one of its vehicles to Manuel Armenta (Manuel), Plaintiffs husband and decedent. We reverse.
BACKGROUND
{2} Isabel Armenia, (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 1-25. 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 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 waspickedup 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 D efendant 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 1-25. Manuel’s blood alcohol concentration (B AC) was .23 at the time of his death.
DISCUSSION
{5} Defendant argued in the motion for summary judgment that Plaintiffs 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.,
A. Workers’ Compensation
{6} Defendant argues that the Workers’ Compensation Act (the Act) provides the exclusive remedy for Plaintiffs claim because Manuel was a traveling employee covered by the Act at the time of the accident. See NMS A 1978, §§ 52-1-1 to -70 (1929, as amended through 2013). Generally, “the Act makes workers’ compensation benefits the worker’s exclusive remedy for all accidental injuries.” Salazar v. Torres,
{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, 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.,
{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 Plaintiffs exclusive remedy. For the most part, Plaintiff does not contest that Manuel was a traveling employee. Rather, Plaintiff argues thatManuel 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,
{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,
B. Negligent Entrustment
{12} We turn next to whether summary judgment could properly be granted on Plaintiffs 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,
[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,
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.
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,
{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,
{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,
{15} In Sanchez, the entrustee stated in an affidavit that he told the entrustor, his employer, that he was “drunk, tired, hung overf,] 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 [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 factthathe 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 oí 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,
{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,
{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,
{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.”
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 vehicle while intoxicated is also engaged in morally reprehensible behavior that should be discouraged.
Id. But see Bailey,
{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.,
{21} To prevail on a negligent entrustment claim, Plaintiff must show that “[Djefendant [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,
{22} As discussed above, permission is an integral part of an entrustment claim. Permission maybe express or implied. Bishop v. Morich,
{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. & Sur. Co.,
{25} Viewing the undisputed facts in the light most favorable to Plaintiff, we conclude that “a reasonable fact[]fmder could draw certain inferences and come to certain conclusions favorable to Plaintiffs claim.” Juneau v. Intel Corp.,
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.
Notes
We 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,