*1 scope of the Bank, exceeds the intended sections cuso v. United by extending liability indefinitely. (Colo.1991). My record, view the how-
ever, necessary is not dispose of this B. case. majority’s duty creation a to ter- majority notes that liability under a essentially imposes
minate entrustments theory negligent entrustment is deter- duty on to exercise control over mined point at “the initial of entrustment.” chattels or their users to en- Maj. op. Thus, at 360. subsequent supplier only can maj. op. trustment. Imposi- at 360. negligent liable supply of a tion of such duty wholly unwarranted chattel at the time of entrustment. As the rejection subsequent nullifies the majority states, plaintiffs herein do not control. assert that negligent Cowan was when he initially company entrusted the car to Case- The majority finds that the rationale un- July bolt on Maj. 1987. op. at 360. derlying negligent supports Instead, plaintiffs relied on the exist- recognition of “a to take reasonable separate duty ence of a “based on a subse- action to terminate the entrustment if the quent ability to control the automobile.” acquires entrustor information that such majority rejected Since the of subse- an unreasonable risk exists or has come quent control, Cowan cannot be liable un- being into after the entrustment and the der a theory entrustment. Be- legal right entrustor has the ability agree cause I with the majority’s rejection Maj. op. end the entrustment.” at 360. subsequent control, I would affirm the The majority any jurisdiction fails to cite district court’s in favor similarly imposed which has duty. such a of Cowan and Milco Company. Construction The majority explain does not creating how liability at the moment of entrustment I am say authorized to that Justice ER- (when a supplier must have both control joins ICKSON in this dissent. knowledge over a chattel and of its foresee- misuse) supports
able an extension of liabil- ity indefinitely time point over until a when acquires information that he or possess
she did not at the time of entrust- ment. require- This obliterates the Penelope Donald O. PETERSON and ment that a knowledge must have Peterson, Petitioners, G. time of the order to be liable under either section 308 or 390. HALSTED, Barry Respondent. III. Donald O. PETERSON and view, In my appropri- this case is most Peterson, Petitioners, G. ately analyzed gen- under section encapsulation eral BILLINGS, Teresa mother and best ment doctrine. The record in this case child, friend of her deceased Eva not, opinion, does in my possible evince Halsted, Respondent. Marie proof noticeably that Casebolt was either entrustment, intoxicated at the time of 90SC418, Nos. 90SC519. drinking that Casebolt’s habits were such Colorado, Supreme Court of incompetent that he was a known and that En Banc. Cowan should know or have reason to know that likely Casebolt was to misuse April noting, the car. duly so am aware of the benefit of all favorable inferences that nonmoving party pass- is entitled into summary judgment on motions. Man-
separate
against
action
the Petersons for
damages
caused
Eva Marie Halsted’s
Billings
death.
and Halsted based their
claims on the theories of
family
ment and the
car doctrine.
*3
case,
In each
County
the Adams
District
granted
Court
the Petersons’ motion for
summary judgment
negli
on the claim of
gent entrustment for the reason that the
Petersons
lacked control and
of con
trol over the
by
vehicle driven
Tamara.1
The
Appeals
Colorado Court of
reversed
entry
summary judgment
the
of
in both the
Billings
Halsted and the
cases. Halsted v.
Peterson,
Theodore A. Billings. dent Teresa
I. Justice Opinion LOHR delivered the of begin analysis by setting We our
the Court. principles forth govern familiar resolu cases,
These
summary judgment.
two
consolidated
this
tion of motions for
briefing
court
argument, present
judgment
Summary
appropriate only
is
if
concerning
common issues
applicability
genuine
any
there is no
issue as to
material
of the tort
moving party
doctrine of
fact
and the
is entitled to a
judgment
ment.
cases arose out of an automo-
as a matter of law. C.R.C.P.
Peterson,
56(c).
Co.,
bile accident which Tamara
Churchey Adolph
Coors
twenty-five-year-old daughter
1336,
(Colo.1988);
of defen- P.2d
1339-40
United
Jesse,
(Colo.
Penelope
dants Donald 0. Peterson and
G. States v.
744 P.2d
Peterson,
1987).
simply
drove a vehicle while intoxicated
A material fact is
a fact that
carrying
and collided with an automobile
affect the outcome of the
will
case. Mt.
Barry Halsted,
Eleanor,
his
and his
Mining
wife
Emmons
Co. v. Town
Crested
of
daughter
Halsted, Butte,
(Colo.1984).
Eva Marie. Eleanor
690 P.2d
Halsted,
Marie
purpose
summary judgment
permit
Eva
and Tamara Peterson
of
is to
parties
pierce
allegations
all died as a result of the accident. Tamara
formal
Peterson had
her
pleadings
vehicle with
and save the time and
when,
parents’
history
expense
her
assistance and had a
connected with trial
as a
law,
facts,
consumption
undisputed
excessive
of alcoholic bever- matter of
based on
ages. Barry
brought
party
prevail.
Halsted
an action one
could not
Id. at 238.
against
remedy
Donald and
Summary judgment
Peterson for
is a drastic
damages arising
injuries
granted only upon
out of his
should be
a clear show
Billings,
genuine
death of his wife. Teresa
that there is no
issue as to
Halsted, brought
fact,
Dressel,
mother of Eva Marie
a material
Jones
County
Appeals
these
1. In each case the Adams
District Court
The Colorado Court of
rulings,
affirmed
judgment
granted partial summary
also
for the
and we denied certiorari to review the
family
family
on the
car doctrine
car doctrine issue.
defendants
claim.
legal pre
that all
(Colo.1981),
by
The Ford Bronco driven
Tamara Pe-
day
clearly established. General
terson on the
of the accident was the
requisites are
of three
Springs, 638 last
vehicles
she had owned.
City
Ins.
Colorado
Co.
given
(Colo.1981).
The first was a Datsun
to her
her
P.2d
parents
high
graduation
school
determining
whether
present. The title was in her father’s
nonmoving party
proper,
September
name.
Donald Peter-
infer
entitled to the benefit
all favorable
signed
power
attorney
son
to enable
reasonably
ences that
be drawn from
daughter
ap-
his
to sell the Datsun. She
facts,
undisputed
all
must
doubts
$2,000
plied
proceeds
against
moving party.
resolved
Porsche,
of a
titled in
name
which was
Pueblo,
Mancuso v.
Bank
United
boyfriend. Penelope
her
later
(Colo,1991); Tapley
v. Gold
*4
provided
help
to Tamara
her to
to
$700
Tires,
(Colo.
Big
en
O
payments
make
on the Porsche and avoid
1983);
56(c).
C.R.C.P.
A court must consid
repossession.
February
In
Tamara
pleadings, depositions,
er “the
answers to
traded the Porsche and
the Ford
file,
interrogatories, and admissions on
to
Title
Bronco.
to the vehicle was listed
affidavits,
any,”
if
in deter
gether with
the names of Donald Peterson and Tamara
mining
grant
to
a motion for sum
whether
Peterson
co-owners. Donald Peterson
56(c).
mary judgment. C.R.C.P.
Tamara,
cosigned the loan documents with
fi-
thereby making
possible
it
for her to
II.
purchase.
nance the
Donald Peterson also
by Barry
for relief
The claims
asserted
cosigned the sale contract for the vehicle as
Billings are
on
Halsted and Teresa
based
well as other documents executed incident
negligently
averments that the Petersons
purchase.
family ad-
The Peterson
to Tamara Peterson.
entrusted a vehicle
appeared
registration.
on
dress
the Bronco
The record demonstrates that there is no Registration papers,
plates,
license
and ti-
genuine issue as to the existence of
tle documents were sent to that address.
forth.
the facts
we now set
The Bronco was insured under Donald
intoxicated when
Tamara
was
times,
policies
Peterson’s
but later Ta-
Bronco,
negligently
she
drove her Ford
mara obtained her own insurance. She al-
stop sign,
failed to halt at a
and collided
policy
lapse,
her
to
and the vehicle
lowed
January
Barry Halsted’s vehicle on
with
was uninsured at the time of the accident
injuries upon
deaths and
pay-
1988. Tamara made all
cases are based resulted
which
pro-
alive. The
ments on the Bronco while
from that collision. At the time of the
policy
ceeds of a life insurance
maintained
accident,
twenty-five years
Tamara
old
was
re-
by Tamara covered all but two of the
employed
flight
attendant. She
maining payments after her death. Donald
employed
years. Ta-
had been so
for three
payments.
Peterson made those two
On
parents’
mara had moved out of her
home
occasions,
infrequent
Tamara’s
with
years earlier
had main-
about seven
permission, other
of the Peterson
members
her
other
tained
residence
various
family used the Bronco.
home,
places.
parents’
returned to her
She
home,
dispute
for
leaves no room for
or to a trailer located behind the
evidence
problem
Tamara had an alcohol
periods
changing places
while
of resi-
brief
addition,
In
her
years
to her
several
duration.
par-
dence and sometimes returned
parents
of that diffi-
days
home for a few
while maintain-
evidenced awareness
ents’
Peterson collided
places.
culty.
Tamara
Tamara
ing her residence
other
driving
Datsun
support and
a fire truck when
her
provided her own means of
intoxicated; she had a blood-alcohol
parents
claimed
her
as an while
had not been
and received a ticket
exemption
purposes
tax
since 1985.
content of .1632
influence,
driving
prohibiting
purposes
under the
of the criminal statute then in
effect
2. For
negligence
opinion
Donald
in our
issued today
the influence. Both
driving under
this inci-
Cowan,
Peterson knew of
(Colo.
Casebolt v.
III.
Tamara,
lending his credit to
is sufficient
a chattel
to make that
a
of
consider
the tort doc-
We now
whether
under section 390.
applicable
negligent
trine of
entrustment is
pleaded
developed fur-
to the facts as
and
give
daugh-
The Petersons did not
their
summary judgment proceed-
ther in the
provide her
funds to
ter the Bronco or
ings. Concluding that
the facts do not
simply sup-
purchase it.4 Donald Peterson
claims,
support negligent
we
entrustment
by cosigning
plied his credit
summary judgment
then consider whether
thereby enabling
money obligation,
analyzed
proper
when the claims are
possession
to come into
of the vehicle. Ta-
general
negligence
principles
under
of
law.
during
payments
her life-
mara made
analyzed,
We conclude that even when so
time,
insurance
proceeds
and the
of an
granting summary
the district court orders
paid
life
almost the entire
policy on her
correct.
were
This
after her death.
raises
loan balance
A.
question of
the Petersons’ as-
whether
purchasing
was suf-
sistance
the vehicle
negligent
the law of
We discussed
suppliers
pur-
for the
ficient to make them
place
in the tort law of
argument
gave
has been made that Donald Pe-
rise
4. No
content of .10 or more
blood-alcohol
to
identically
presumption
that the defendant was
Peterson are not
terson and
ch.
sec.
summary judg-
of alcohol. See
purpose
influence
of the
situated for
42-4-1202(2)(c),
Colo.Sess.Laws 1579.
issue,
1979
possi-
§
we do not consider that
ment
bility
opinion.
in this
partici-
in which the
races are races
Chariot
pants
in horse-drawn vehicles.
ride
application
from the
tion that
results
of
of
Restatement.5
pose of section 390
analysis.
390 states:
to section
Comment
Straughan,
McKenna v.
Cal.App.3d
anyone
applies to
who
rule stated
(1986)
(analyz-
Cal.Rptr.
the use of another.
supplies a chattel for
negligence princi-
general
case under
lessors,
sellers,
donors or
applies to
It
negligent entrust-
ples although pleaded as
bailors,
lenders,
kinds of
irre
and to all
ment).
may vary de-
Policy considerations
gra
spective of
the bailment
whether
consideration.[6]
relationship
the lender to
pending on the
tuitous or for a
borrower,
circumstances
the financial
examples
suppliers
all describe
These
borrower,
elapsed
time
be-
pos-
persons having possession
any resulting injury, to
the loan and
chattel at the time of entrust-
tween
session of a
directly supply the chattel to
gen-
ment
who
name but a few relevant factors. Our
the user.
negligence
adapted
is well
to take
eral
law
weigh
such manifold and
into account
entrust
purpose
arriving
disparate considerations in
is to articulate a set of stan
ment doctrine
met,
duty and
particular
if
establish the
dards that
whether
lender
conclusion
negligence
elements of a
claim with
breach
injured
particular
of care to a
owes a
analysis
necessity for the detailed
out the
Smith,
See,
e.g.,
726 P.2d at
party.
required to determine the ex
that often is
Whitlock,
Accordingly,
tate the
of a vehicle
summary judg-
We next address whether
readily adaptable to
as not to be
and varied
in
appropriate
duty ques- ment for the defendants
simplified resolution of the
360,
Casebolt,
necessity
determine whether
cause of the
to
held in
It is for a court
determine
imposing
later on
1988. Cases
person has
question of law whether a
liability on lenders or
typically
donors
in
acting
duty to act or refrain from
to avoid
Smith,
span
a much shorter time
injury
volve
between
E.g.,
to others.
1127;
Serv.,
Metropolitan
Repair
gift
the loan or
E.g.,
Gas
Inc.
the accident.
Kulik,
(Colo.1980). McKenna,
(accident
Cal.Rptr.
at 463
requires
This determination
that a court
days
purchase
occurred ten
after the
many
including,
consider
factors
without
vehicle; general negligence analysis); Koh
limitation,
involved,
“the risk
the foresee
Goldstein,
lenberg v.
290 Md.
ability
injury weighed
and likelihood
(1981)
(accident
A.2d
occurred six
against
utility of the actor’s con
the social
vehicle;
days after the
duct,
magnitude of the
burden
analysis).
harm,
guarding against injury or
fully employed
flight
had been
attend
placing
upon
consequences of
the burden
years preceding
ant for three
the accident
Smith,
P.2d at
the actor.”
ac
parents’
and had lived outside her
home for
cord,
Whitlock,
e.g.,
plaintiffs,”
summary judg-
that “the
proper.”
ments for the defendants were
16, 1988,
Tamara Peterson
however,
Maj. op.
disagree,
with
(Tamara)
Bronco,
drove her Ford
in-
while
majority’s application of section
toxicated,
Barry
and collided
Halsted’s
governing entrustment
of chattels
passengers in
vehicle. Tamara and two
incompetents,
majority’s
known
Halsted’s car died as a result of the colli-
money
holding
dicta that lenders of
sion.
credit can be
of chattels with
twenty-five years old.
Tamara was then
respect
visits,
infrequent overnight
Other than
Ta-
ment.
had maintained her
residence
mara
own
Petersons,
apart
parents, the
from her
I.
years,
grad-
approximately seven
since she
companion
In the
case to the
high
During
uated from
school.
that sev-
action,
Cowan,
ment III. mileage Application, and the odometer ny Donald Pe- Both Tamara’s and statement. majority “persuaded The the cir- is that names, ad- and Donald Peterson’s terson’s money may cumstances or credit which dress, appeared the title. on purchase to a ve- lent facilitate be made all From 1985 until many hicle are so and varied not to be times, the payments on the Bronco. At readily adaptable simplified resolu- to Peter- was insured under Donald Bronco that from duty question tion of the results policy, Tamara insured the son’s but later application kept copies of While Tamara extra vehicle. Maj. analysis.” op. at 378. This statement Don- keys, did not allow either her car she strips section of its that a essence: to and main- ald or have “possession has someone who or spare keys. tain car right possession to of a chattel at the time brought against the The Halsteds suit supplies] directly of entrustment and who on Petersons theories to Maj. op. the chattel” the entrustee. at family car The ment and the doctrine. added). (emphasis loans Someone who granted summary judgment district court money clearly pos- does credit not have negligent- on in favor of the Petersons possession session or a to of a chattel. claim, noting that no matter titled, the technically how the Bronco was view, opinion my majority’s impos- have control over Petersons did not it.. indepth es a new on lenders make applicant’s inquiries persona, as to an my opinion, cannot Tamara Peterson loan, in logically categorized known the time of the order to avoid be incompetent 390. She liability applicant procures under section future when years age, older than sixteen was indefinite moment. a chattel some future drive, and suffered no obvious licensed appli- Creation such a stretches impairments she physical or mental when beyond intended cation of section 390 Bronco. The Petersons purchased the imposes liability where scope. Section 390 that Tamara was could not have concluded “supplier or has to know” knows reason knowledge of incompetent on their based likely to a chat- an entrustee is misuse that prior five years her one DUI conviction (1965). Section tel. Restatement § of the Bronco. affirmatively lenders require not 390 does majority that evidence states to dis- potential “[t]he into users’ lives to delve dispute no that Tamara leaves room for myriad any of the characteristics cover years[’] problem an of several had alcohol Thus, the a user unfit. which render op. majority at 376. The Maj. duration.” “that commu- correctly notes majority parents “her further that evidenced states large willing recognize not nity at difficulty.” am of that Id. awareness magnitude of such responsibility that is however, convinced, that Petersons’ not op. at indefinitely.” Maj. lasts conduct rises to the awareness of Tamara’s required liability knowledge level of by excluding not lenders imply, I do did not section 390. Petersons under section money or from credit problem testify they were aware of a *9 for never be liable that lenders can years’ duration.’ Mrs. ‘of several implicated negligence. Lenders she once consulted did state that found chain of causation and liable Mrs. Peter- obtaining treatment. about negligence. general- general case of not, however, estab- testimony does son’s Greene, Ekberg v. 196 Colo. ly single state- in which this lish the context (1978). Accordingly, section made. ment was discussion, foregoing PER CURIAM. on the Based judgment in favor would affirm attorney disciplinary proceeding, In this of the Petersons. Supreme hearing panel Court recommended that
Grievance Committee disbarred, pay respondent be ordered to the restitution, the costs of the and assessed accept panel’s the recom- proceedings. We mendation. I. of the State
The PEOPLE Colorado, Complainant, respondent The was admitted to the bar 1, 1985, reg- of this court on November attorney upon this court’s istered as an MULLISON, Michael Dean records, subject juris- and is official Attorney-Respondent. grievance com- diction of this court and its No. 92SA25. 241.- proceedings. mittee in these C.R.C.P. Colorado, Supreme Court 26, 1989, 1(b). suspended October we On Banc. En practice respondent from the of law the during pendency proceedings. of these the April 1992. 241.8. C.R.C.P. discipli- respondent
The and the assistant unconditional nary counsel submitted an hearing stipulation of facts to the board. specific the facts nor the violations Neither Responsibility of Professional of the Code dispute. hearing the were before appro- the was therefore limited to board discipline stipulated for the miscon- priate day hearing, the the re- duct. On the spondent’s attorney filed a waiver of mitiga- appear evidence tion, respondent appear did not hearing. hearing the had been After held, an unveri- respondent submitted mitigation.” The letter of fied “letter of evidence, mitigation not admitted into however, that it the board found because stipu- hearsay.1 upon Based contained lation, following found that the the board by and con- clear facts were established vincing evidence. Counsel, Disciplinary Donnelly, Linda Gleason, Disciplinary Asst. Coun- John S. respondent Denver, sel, complainant. for Washington guilty in the State of pleaded degree, second Francis, attempted theft E. & Gene Fisch- Fisher Howard misdemeanor, legal aid directing a Collins, er, attorney-respondent. Fort panel panel’s or the recommenda- hearing panel, proceeding taken before pay disbarred and ordered objected findings that he be respondent tion to certain Moreover, we have examined arising restitution. the board from the board's failure to mitigation error conclude that mitigation. respon- letter this letter of consider however, considering not, was harmless. the letter excepted in not dent has to the action