delivered the opinion of the Court.
This is а motor vehicle tort case filed by a minor and her father. Judgment in favor of the plaintiffs, based upon a jury verdict, was reversed by the Court of Special Appeals. Because we conclude that the issues relating to negligent entrustment and assumption of the risk were properly submitted to the jury, we shall reverse.
The accident, which occurred on December 18, 1971, involved a single car. Lynn Kahlenberg (Plaintiff), then age 19, was a passenger. Lawrence Saul Goldstein (Lawrence), then age 20, was driving.
1
Lawrence is the son of Bernard M.
Cars were very important in Lawrence’s life. He received his first driver’s license on April 24, 1967 at age 16. The Maryland driving record which Lawrence subsequently compiled up to the date of the subject accident was introduced through a witness from the Motor Vehicle Administration and is set forth in the margin
5
From July 14, 1967 through
Lawrence had moved out of the family home in Lutherville for three or four months when he was 15 and lived at various unspecified locations. He left home again at age 16 and lived in downtown Baltimore before returning to the Goldstein home. In September 1968 he went to California and lived for a time with his sister. Lawrence was married on June 18, 1970 and moved with his wife to California. There he attended college for a time, but dropped out and went to mechanic’s school for a few months. He had no steady jоb. His wife worked and his wife’s parents subsidized the couple in California so that he could stay in school. From time to time the Goldsteins sent Lawrence money. Lawrence obtained a California driver’s license.
6
There was no evidence that he had any California motor vehicle violations. He successively owned three different automobiles while in California, as well as a motorcycle. On
Lawrence and his wife were having marital difficulties. In October 1971 Lawrence returned to the Goldstein home. He left his Dodge automobile in California. There were two automobiles at that time in the Goldstein family. One, an Oldsmobile, was used by Bernard almost exclusively. Mrs. Goldstein drove a station wagon. Lawrence was driving every day during this period, apparently using the station wagon. He was unemployed until the first week in December, but from time to time he was given money by his parents. The job he obtained was as an assistant mechanic’s helper at Tunex Diagnostic Center for which he was initially paid $20 per wеek in cash. Lawrence subsequently learned that his mother had made an arrangement with the proprietor of the diagnostic center under which she paid the employer a portion of the monies being paid for Lawrence’s services.
Lynn Kahlenberg, the Plaintiff, had known Lawrence and Mr. and Mrs. Goldstein for five to ten years prior to the accident. She was part of a group of young people with whom Lawrence associated-. Miss Kahlenberg was a frequent visitor to the Goldstein home and went out regularly with Lawrence prior to his marriage. When Lawrence returned from California in October of 1971 she resumed seeing him regularly, even though her father was opposed to her association with Lawrence, whom Lynn’s fаther considered to be a bad influence and a dangerous driver. She had been with Lawrence when he received some of his tickets for traffic violations and had been with him when he had a couple of minor accidents which did not involve any personal injury.
I
Bernard argues that he was entitled to a directed verdict as to primary negligence because the evidence was legally
This Court first applied the theory of negligent entrustment as expressed in Restatement of Torts § 260 (Tent. Draft No. 5,1930), in
Rounds v.
Phillips,
[o]ne 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.
The Restatement formulation of the rule has been approved in the second
Rounds
case,
Rounds v.
Phillips,
In this case the evidence most favorable to the Plaintiff is that Bernard purchased the automobile as a gift for Lawrence. Bernard contends, however, that the law in other states does not impose negligent entrustment liability on one who makes the gift of an automobile to an incompetent driver and cities
Shipp v. Davis,
In
Shipp
a father gave a Buick to his adult son knowing that the son would take it with him to the University of
[I]f it should be held that an automobile could not, without assuming liability for negligent or incompetent driving, be sold or given to a person not having sufficient knowledge or training to drive the car, it would be carrying the doctrine of concurrent liability far beyond any decision coming to our knowledge. Whether by a gift or a sale when an automobile is placed in the possession and control of a person, sui juris, such transfer passes the title to the buyer or donee, and thereafter responsibility for its operation rests with such buyer or donee. If, however, at the time of delivery of possession and control, the receiving party was by rеason of intoxication or other cause incapacitated from driving the machine with reasonable safety to the public, a different rule would apply.
... [The father] never had possession of the car, and exercised no control or dominion over it. The defendant [son] was over twenty-one years of age, and had by virtue of his age passed from the legal control of his parents. There can be no doubt from the evidence in this case that the car was the property of defendant [son] and that the defendant [father] had no interest in or control over it. But, whether the defendant [father] was the owner of the car or not, he was not at the time of the accident present or in control of the car, and the fact, even if proven, that [the father] knew at the time [the son] obtained possession of the car that [the son] "drank,” would not impart actionable negligence to [the father]. [25 Ala. App. at 106-07 ,141 So. at 367 .]
Estes v. Gibson, supra,
was a four-three decision of the highest court of Kentucky which sustained the dismissal on demurrer of a claim against a mother who had purchased an automobile for her adult son who was known by her to be an
Brown v. Harkleroad, supra, reversed a judgment based on negligent entrustment which had been entered against a father who purchased an automobile for his 26-year-old son upon the latter’s return from two years service in the Army. It relied on Shipp and on Estes and asked these rhetorical questions:
If a father incurs liability by giving an automobile to his son, knowing him to be a drunken or incompetent driver, when would it end? Would it last for the life of the automobile? Would it apply to a new automobile in the event of a trade-in? Or would liability attach to a dealer who sold an automobile to a known incompetent or drunken driver? Or to a filling station operator who sold such a person gas, knowing of his propensity? [39 Tenn. App. at 665 ,287 S.W.2d at 96 .]
A different result has been reached by the appellate division of the Supreme Court of New York in an appeal from a dismissal for failure to plead a cause of action.
Golembe v. Blumberg,
We do not entirely accept the reasoning of those decisions which broadly decline to apply the negligent entrustment theory where the chattel is supplied by gift. Somewhat anomalously, two of them recognize the applicability of the doctrine where the chattel is supplied by some form of bailment.
Estes v. Gibson, supra,
One reed upon which
Estes v. Gibson, supra,
rested was that the illustrations to § 390 of the Restatement of Torts (1934) were "confined to cases of agency and bailment. . . .”
Our reference to Comment a and to illustration 6 of § 390 of the Restatement, because of their inclusion of entrustment by way of gift, is not an indication that we embrace the applicability of § 390 liability to any of the other modes of supply referred to therein. The holding in this case goes no further than to recognize that the principle expressed in § 390 applies where a gift of an automobile is made to a member of the donor’s immediate family. Inasmuch as there was legally sufficient evidence from which the jury in the instant matter could find that Bernard gave the car to Lawrence, as opposed to Lawrence purchasing it independently, Bernard was not entitled to a directed verdict on the ground that he did not supply the car to Lawrence.
Bernard next contends, utilizing the above-quoted language from the
Rounds
decisions, that there was no legally sufficient evidence that he had the right to permit and the power to prohibit Lawrence’s use of the Ford police interceptor.
7
Inasmuch as certain donors can be suppliers within the meaning of the rule, and since a donor would ordinarily relinquish any right to permit and power to prohibit the use of the chattel upon its delivery to the donee and consummation of the gift, the right to permit and the power to prohibit the use of the chattel, after the transfer and at the time of the injury, would not ordinarily be a
sine qua non
of liability. The reason is that the tort of negligent entrustment involves concurrent causation. The negligence of the supplier consists of. furnishing the chattel with the requisite knowledge. This sets in motion one chain of causation which may or may not in fact result in injury. The other chain of causation involves the conduct of the immediate tortfeasor. If physical harm results to one within the class of foreseeable plaintiffs, as a result of the use of the chattel by the entrustee in a manner, which, because of the
The first Rounds case was an appeal from a judgment for the defendants entered on demurrer to the declaration. It was alleged that the son of the defendant parents had obtained his driver’s license at age 16. He had one speeding conviction at age 17 and a reckless driving conviction at age 19. A week thereafter the father purchased a Buick аutomobile which he had registered in the son’s name and which the son used whenever he desired. No attention was directed in the Rounds litigation to whether initially supplying the car to the son constituted a negligent entrustment because there was no contention that, as of that time, the father knew or had reason to know of facts which would make it negligent for him to furnish the car. Three months thereafter the son was convicted of driving under the influence and his operator’s license was revoked. During the period of revocation the son transferred title to the Buick to his mother. The license was reinstated about a month before the son’s twentieth birthday and about four and one-half months after his twentieth birthday the fatal accident ocсurred which gave rise to the litigation. The plaintiffs contention was that the conviction for driving while intoxicated, and other facts known to the parents, furnished the requisite knowledge for application of the negligent entrustment theory to the use of the car by the son at the time of the accident. One specific contention of the father was that the car was titled in, and owned by, the mother so that, in effect, it was not he who supplied the chattel. In response we said:
Under the facts of this case, that, in our opinion, does not create a valid distinction. The son was a minor, and the father, as the controlling head of the family, had the authority and power to permit theuse by the son of the mother’s automobile, or tо prohibit it. [ 166 Md. at 167 ,170 A. at 538 .]
And further:
We do not think that the title to the automobile, as shown by the records of the automobile commissioner of the state, is conclusive, but that the principle applies not only to the owner of an automobile, but to anyone who has the right to permit and the power to prohibit the use thereof. Having such power and authority, if he does not prohibit his minor son, who he knows is addicted to driving an automobile while under the influence of liquor, and is habitually negligent and reckless in its use, there can be no valid distinction between him, under such circumstances, and the one who has the record title to the automobile in question. [Id. at 168,170 A. at 538 .]
The above-quoted discussion was in the context of whether the father could be a supplier of the сar at a time when the father could be found to have the requisite knowledge for negligent entrustment. Although he may not have directly furnished the car to his son after the son’s license was reinstated, and although the father may not have been the owner of the automobile, his right to permit and power to prohibit the use of the vehicle effectively made him a supplier at that time. In the instant matter there was sufficient evidence from which the jury could find that Bernard supplied the Ford police interceptor to Lawrence by gift on December 12, 1971 and that, at the time Bernard supplied the chattel, he had the requisite knowledge of Lawrence’s propensities so as to have then set in motion the entrustor’s chain of causation. Under the facts of this case the Plaintiff was not required to go further and demonstrate that Bernard retained, and should have exercised, a power to prohibit any use by Lawrence of the completed gift.
The proximate cause contention of Bernard has two aspects. First it is said Lawrence would have obtained the car in any event and, secondly, that the Plaintiff failed to
On the second aspect of Bernard’s proximate cause contention, it is true that the Plaintiff, in the trial of the claim against Bernard, did not produce proof of the precise act or omission on the part of Lawrence which negligently caused the accident. This was because the trial court on September 19,1975, in granting the severance, stated that the colloquy in connection with that order would be written up and filed "as a binding commitment on the part of [Bernard].” That colloquy included a statement by Bernard’s counsel that
At argument in this Cоurt, Bernard says that the statement concerning being bound by the verdict against Lawrence referred to the law of collateral estoppel. As we see it, the trial was bifurcated at the request of the defendants and for their benefit. At the severance hearing the court requested counsel for the defendants to prepare a written stipulation but Bernard’s counsel stated that a write up of the colloquy with the court would be acceptable to Bernard. Under these circumstances we do not propose to construe the commitment narrowly in favor of Bernard. Rather, we see it as meaning that the Plaintiff need not prove over again in the trial involving Bernard those matters which had already been established in the trial against Lawrence. We read the opening statements of counsel at the trial involving Bernard as supporting this interpretation. This is not a case in which the negligence in entrustment was predicated on the entrustee’s epilepsy or addiction to drugs or abusive use of alcohol, so that it would be necessary for a plaintiff to demonstrate that the characteristic of the entrustee, relied upon to establish negligent entrustment, was the particular characteristic which caused the accident. Here the theory of the Plaintiffs case, supported by sufficient evidence, was that Bernard knew or had reason to know that Lawrence was likely to drive in a negligent and reckless manner. The аdmission by counsel for Bernard in his opening statement that the Plaintiff had already obtained a verdict against Lawrence necessarily meant that Lawrence had been found to have driven negligently at the time of the accident. Under the commitment between court and counsel made at the
II
The Court of Special Appeals held that Bernard should have been granted a directed verdict on the ground of the Plaintiffs assumption of the risk. 9 Bernard points out that on the evening of the accident the Plaintiff drove her own car to the Goldstein home where she met Lawrence. They left in the Ford police interceptor with Lawrence driving. Bernard argues that the Plaintiffs knowledge of Lawrence’s driving propensities was equal or superior to his own, and that she voluntarily assumed the risk of her own injury as a matter of law, particularly when she had an alternate means of transportation available.
The Plaintiff established Bernard’s knowledge of the risk to others involved in Lawrence’s driving by producing records containing Bernard’s written certifications on Lawrence’s applications for reinstatement. From these the jury could find that Bernard knew of each of Lawrence’s pre-revocation violations. The proof did not proceed the same way as to the Plaintiffs knowledge. Understandably, no effort was made at the trial in 1979 to elicit admissions based оn the memory of the Plaintiff that, prior to December 1971, she knew of each of the moving violations charged to Lawrence in 1967 and 1968, when the Plaintiff was 14 and 15 years old. As a consequence of the difference in the evidence relating to specific knowledge, the jury need not have found that the Plaintiffs knowledge equaled that of Bernard, and thus could find Bernard to be negligent while finding the Plaintiff not to have assumed the risk. "[T]he doctrine of assumption of the risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible infer
Bernard’s assumption of the risk argument is predicated almost exclusively on the descriptions or characterizations of the manner in which Lawrence drove in late 1971 which were givеn by the Plaintiff on cross-examination, and the substance of which we quote in the margin. 10
Bernard described these trips differently.
Q. On the occasion, Mr. Goldstein, when Lawrence is driving your car with you, did you noticeanything about the manner in which Lawrence operated the car while you were a passenger in the car?
A. I didn’t notice anything that unusual about it. I certainly, with my wife in the car and myself, I would not have tolerated any wrong driving.
Q. Such as the conduct you have heard Lynn describe?
A. It was just normal driving while I was in the car.
Referring to the same trips Lawrence said: "Well, I drove a little differently usually with, you know, adults in the car, than I would otherwise.”
The differences in the Plaintiffs characterization of the way Lawrence "always” drove, boil; within the Plaintiffs own testimony and by comparison to the description given by other witnesses of Lawrence’s driving on particular occasions which were also described by the Plaintiff, created a factual question for the jury to resolve on the issue of the Plaintiffs assumption of the risk.
The final point which Bernard makes is that the trial court was required to submit a third special interrogatory to the jury which would have focused on the issue of proximate cause. Bernard also argues that the instructions on proximate cause which he requested should have been embodied in the charge to the jury. We note that the trial court charged that the "plaintiff has the burden of proving by a preponderance of the evidence that the defendant’s negligence, that is, Bernard Goldstein’s negligence, was a cause of her injury,” and further that "to recover ... the negligеnce must be a cause of the injury.” The court further charged almost verbatim from § 390 of the Restatement, including the element of "resulting” physical harm. The instructions as given in no way limited the summation by Bernard’s counsel. He argued, as being within the trial judge’s charge, substantially the same proximate cause contentions which were embraced within Bernard’s more detailed requested
Judgment of the Court of Special Appeals vacated.
Case remanded to that court with instructions to afñrm the judgment of the Circuit Court for Baltimore County without prejudice to subsequent correction by the Circuit Court for Baltimore County consistent with this opinion.
Costs to be paid by Bernard M. Goldstein.
Notes
. The "age of majority” was not reduced to 18 years until July 1, 1973 by Chapter 651 of the Acts of that year.
. At the time of the accident Lawrence possessed a valid California operator’s license.
A directed verdict was granted in favor of Bernard as to his alleged liability under Md. Code (1957,1970 Repl. Vol.), Art. 66 Vs, § 6-107. In the view which we take of the case, it is unnecessary to review this ruling.
. The docket entries of April 6,1979 reflect a verdict of the jury in favor of the Plaintiff and her father against Bernard "for costs” and judgment nisi on that verdict. Judgment absolute was entered April 25,1979. Prior to the start of the trial against Bernard he obtained a ruling from the court excluding any mention of the amount of the verdict against Lawrence in the prior trial and excluding any reference to the Plaintiffs injuries. Counsel for Bernard suggested that the jury be informed of the amount of the verdict rendered against Lawrence only in the event that they find in favor of the Plaintiff and that "then the Court can instruct them how the verdict can be entered, because they have no discretion [as] to the amount.” The trial court adopted that suggestion at the time, but subsequently determined to submit a special verdict to the jury. The special verdict was rendered late in the day on a Friday, after which the jurors were excused and at which time the court announced it would prepare a judgment in writing the following week. No such written judgment appears in the record. Inasmuch as damages of $100,000 were in effect stipulated, it is suggested that the Plaintiff and her father, after the mandate on this appeal, apply to the Circuit Court for Baltimore County under Rule 625 to correct the mistake.
. The Plaintiff noted a cross-appeal because of the directed verdict in favor of Bernard on the statutory pledge theory. We need not decide the issues of appellate procedure which the filing of that cross-appeal provoked.
. These exhibits included a summary printout and copies of traffic summonses. The witness was not asked to explain each entry in the summary, some of which contain abbreviations for which no code explanation was placed in evidence. However, from the exhibits submitted to it, the jury could reconstruct, in chronological order, the following:
Date Offense
7-03-67 Inadequate muffler
7-14-67 Exceeding speed limit by 10 mph
(92 mph in 60 zone)
9-01-67 Improper turn — U-turn within
100 feet of intersection 11-17-67 Hearing — suspension held in
abeyance pending attendance at driver’s clinic; 1 year probation. 11-22-67 Operating vehicle in improper
manner — spinning wheels
11- 25-67 Failure to obey automatic signal
12- 05-67 Exceeding speed limit by 10 mph
(exceeding 70)
12-05-67 Failure to have registration card
in possession
12-11-67 Failure to obey written citation
12-13-67 Speeding
12-20-67 Reckless driving
1- 16-68 Investigation to secure license
2- 13-68 Pt. system notice of suspension
mailed
2-15-68 Hearing scheduled
2-20-68 Failure to attend driver’s clinic
2- 27-68 License suspended as of 3/20/68 for
30 days for accumulation of 8 points
3- 02-68 Exceeding speed limit by 10 mph
(60-70 in 40 mile zone)
3-02-68 Crossing center line
3- 20-68 Suspension withdrawn — with-
drawn for entry of violations of Nov. 22 and Dec. 11 and 20, 1967
4- 11-68 Suspension letter for accumulation
of 11 points mailed
4-18-68 Point system suspension with-
drawn
Disposition
$10
$50
$10
3 pts.
1 pt.
$25
1 pt.
$10
$35
$5
1 pt. 3 pts.
Sentence suspended
$15
1 pt.
$15
3 pts.
Suspended 30 days
$25
3 pts.
$10
4- 22-68
5- 17-68
5-17-68
10-08-68
2- 05-69
7-08-69
3- 17-70
4- 23-70
6-02-70
6-20-70
11- 03-70
9-15-71
12- 18-71
Reckless driving — involved in an $25 3 pts. accident
Revocation notice mailed
License revoked as of 4/18/68 for 90 days for accumulation of 12 points
Reinstatement denied
Reinstatement denied
Reinstatement denied
Completed driver’s clinic
Reinstated
Stop sign, § 242 Unreasonable speed Improper passing
Failure to obey automatic signal
Improper tags ■ dent ■ involved in acci-
1 pt.
1 pt.
$10 1 pt.
1 pt.
. In obtaining the California license, Lawrence denied that he had ever had his driving privilege revoked. On cross-examination he characterized this as "perjury.”
. The trial court in this case did not instruct that "the right to permit and the power to prohibit” are elements of the tort and Bernard makes no contention in this Court that this constituted error.
. Under Lawrence’s testimony, Bernard went to Pasadena, not to buy thе car, but to show the way and out of curiosity.
. No question has been raised by the Plaintiff whether assumption of the risk applies to a claim of negligent entrustment. We shall assume, solely arguendo, that it does. Nor does the Plaintiff make any contention in this Court that Bernard’s stipulation to be bound by the verdict in Lawrence’s case precluded Bernard from asserting an assumption of the risk defense.
. Q. All right. Now, during this period between September, October and December of 1971, were there any other occasions prior to December 12, 1971 when Mr. Bernard Goldstein, Lawrence Goldstein and yourself drove in the same car?
A. Yes, there were.
Q. All right. Was anyone else present?
A. His mother was also present.
Q. And where did you go? Where were you going?
A. We were going to New York for the day.
Q. And who drove?
A. Mr. Goldstein and Lawrence alternated.
Q. How did [Lawrence] drive in the presence of his father?
A. He drove the same way he always drove. He drove fast, he was zipping in and out of traffic.
Q. Did your father consider [Lawrence] a dangerous driver?
A. I believe he did.
Q. Now, after this automobile was purchаsed in early December of 1971, you drove from the Hedrick home with Lawrence to Baltimore, is that correct?
A. That is true.
Q. And how did Lawrence drive at that time?
A. He drove fast.
Q. Pardon?
A. He drove fast. He always — the way he always drove.
Q. Well, what was your knowledge, Miss Kahlenberg, of how Lawrence drove a car?
A. He drove fast. I always thought he was a good driver because he handled the car well.
Q. Well, again, referring to a deposition, Miss Kahlenberg . . . "Question: Was he a good driver?” You answered "No.”
Is it a fact that you did not consider Lawrence to be a good driver?
A. I said he drove fast, he drove reckless, but he always handled the car.
Q. Isn’t it a fact that you testified in 1975, that as of 1971, your knowledge was that Lawrence drove fast, he always drove crazy, he just did whatever he wanted to do, and he had a number of accidents?
A. I believe that is right.
Q. You knew all of that in 1971, did you nоt, Miss Kahlenberg?
A. Yes, I did.
Q. Now, isn’t it also true,. Miss Kahlenberg, that as of 1971 . . . you had been present in the car with Lawrence ... on occasions when you considered that he was driving recklessly and at a high rate of speed?
A. Yes. There were occasions.
Q. And isn’t it a fact, Miss Kahlenberg, that as far as you considered Lawrence’s driving ability in 1971, you thought that he was a dangerous and reckless driver?
A. I said that he drove reckless, he drove fast. He exceeded the speed limit.
Q. And you thought that he was a dangerous driver?
A. If that is the word I used.
Q. Now, isn’t it a fact that in 1971, you considered Lawrence a reckless and dangerous driver?
A. I knew that Lawrence drove fast, he drove reckless, he drove the way he wanted to regardless of, you know —
Q. And you have heard the testimony in court today and yesterday. Isn’t it a fact, Miss Kahlenberg, that you knew exactly what kind of driver Lawrеnce was in 1971?
A. I knew what kind of driver he was.
. Final argument on behalf of Bernard included the following:
[T]his was not a vehicle which Mr. Goldstein supplied to Lawrence, but was, in fact, Lawrence’s vehicle at all times, and one which Mr. Goldstein had no opportunity or right to control since it was in Lawrence’s control who was then twenty years, nine months of age. Now, with regard to whether there was proximate cause, the term Judge Haile used to you. Whether the so-called entrustment of this car was really the cause of this accident .... [Lawrence] would have had Lynn take him down, and he would have bought the very same car. And I suggest to you that that evidence very clearly shows that whatever Mr. Goldstein did was not the proximate cause, as Judge Haile has given it to you....
And further:
"[Bernard’s] conduct, in the language of Judge Haile, was not the real cause of what happened.”