Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martell v. Driscoll

Supreme Court of Kansas

June 7, 2013

Jerry L. Martell, as Conservator for Kim "Travis" Driscoll, Appellants,
Sandra Driscoll, Defendant, Leroy Driscoll, Appellee, Becky Mullins, and Dorothy McHardie, Defendants.


1. Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. The appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiff's theory or any other possible theory.

2. Under Kansas law, a claim of negligent entrustment may be based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. An incompetent driver is one who, by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.

3. 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 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.

4. A first-party negligent entrustment claim is a viable claim under Kansas law.

5. A negligent entrustment claim has four elements: (1) an entrustment of a chattel, (2) to an incompetent entrustee, (3) with knowledge or reason to know of the entrustee's incompetence, and (4) the entrustee's incompetence while using the chattel is the cause in fact of injury or damage to the entrustee and/or another.

6. Kansas adopted the doctrine of comparative fault in 1974, which requires Kansas courts to reduce an award for damages in proportion to the amount of fault attributable to the party claiming damages. Under our system of comparative fault, a plaintiff cannot be awarded damages if the plaintiff is found to be 50 percent or more at fault for the occurrence resulting in harm to the plaintiff.

7. Usually, a determination of the presence or absence of negligence should be left to the trier of fact. Causation, like negligence, is also usually determined by a jury. However, where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court's determination.

8. Kansas' system of comparative fault does not automatically bar a negligent entrustee from recovery. If the facts of a case show that an entrustor owed a duty of care to an entrustee (i.e., not to supply a chattel to the entrustee whom the entrustor knows or has reason to know will likely misuse the chattel in a manner causing unreasonable risk of harm to the entrustee and/or others) and the entrustor breached that duty, then determining whether the entrustee is entitled to damages (i.e., whether the entrustee's fault is less than the entrustor's fault) is a decision left to the trier of fact. This is true even if the entrustee made a voluntary decision to operate the chattel knowing that he or she was incompetent to do so.

Appeal from Jefferson District Court; Gary L. Nafziger, judge.

Edward C. Gillette, of Gillette Law Firm, P.A., of Mission, argued the cause, and Kyle A. Branson, of the same firm, was with him on the briefs for appellants.

Brette Suzanne Hart, of Harris McCausland, P.C., of Kansas City, Missouri, argued the cause, and Dana M. Harris, of the same firm, was with her on the brief for appellee.


Rosen, J.

According to the amended petition Jerry L. Martell, as conservator for Kim "Travis" Driscoll (collectively referred to as "Driscoll"), filed against Leroy Driscoll (Leroy) and other named defendants, Leroy allowed Driscoll to drive a car belonging to

Leroy and others, knowing that Driscoll was incapable of safely driving the car. Driscoll subsequently got into a car accident with another vehicle, which resulted in injuries to Driscoll. Driscoll later filed a negligent entrustment claim against Leroy and the other presumptive owners of the vehicle, claiming that they owed him a duty to not give control of the vehicle to him. After filing an answer, Leroy filed a motion to dismiss Driscoll's petition for failure to state a claim, arguing, among other things, that Kansas law does not recognize a first-party negligent entrustment claim. The district court granted Leroy's motion to dismiss. After the district court certified its decision as a final judgment under K.S.A. 2011 Supp. 60-254(b), Driscoll brought this appeal. This court acquired jurisdiction over the appeal after granting Driscoll's motion to transfer the appeal from the Court of Appeals. See Supreme Court Rule 8.02 (2012 Kan. Ct. R. Annot. 71). For reasons stated below, we reverse the district court's decision and remand for further proceedings.


The amended petition Driscoll filed in this case alleges that on November 2, 2008, Driscoll was involved in a car accident in Jefferson County after he failed to yield the right-of-way to another vehicle while attempting to turn south onto U.S. Highway 59. As a result of this accident, Driscoll sustained serious injuries.

At the time of the accident, the car Driscoll was driving was titled in Leroy's name. Leroy also maintained insurance for the vehicle. Driscoll alleged that Leroy had permitted him to use the car despite being aware that Driscoll's driver's license was suspended, Driscoll had a past history of alcohol abuse and drank alcohol on a daily or nearly daily basis, he had received multiple DUIs, and he was a known reckless or incompetent person incapable of safely operating the vehicle.

In August 2010, Driscoll filed a lawsuit in Leavenworth County District Court against Leroy, Sandra Driscoll, and Becky Mullins, claiming that all three of them had a superior or exclusive right to control the vehicle and that they had negligently entrusted the vehicle to Driscoll. Within the same lawsuit, Driscoll also filed a negligence claim against Dorothy McHardie, the driver of the other vehicle involved in the accident. The case was subsequently transferred to the Jefferson County District Court.

Leroy filed an answer to the petition, generally denying the facts supporting the negligent entrustment claim and contending that the petition failed to state a valid claim of negligent entrustment because Driscoll was not an innocent third party but the alleged entrustee of the car. Leroy subsequently filed a motion to dismiss the negligent entrustment claim, arguing that Kansas law does not recognize a first-party negligent entrustment claim. Leroy also argued that regardless of whether such a claim was valid in Kansas, Kansas' modified comparative fault system would bar recovery in this case because Driscoll, based on the facts alleged in his petition, was at least 50 percent at fault for the accident. Finally, Leroy argued that Kansas public policy, as evidenced in Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992) (Kansas law does not provide a cause of action against a supplier of alcohol for the alcohol-related death of a minor patron), and Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985) (Kansas law does not provide a cause of action against the suppliers of alcohol for persons injured as a result of the torts of intoxicated patrons, even underage patrons), bars a first-party negligent entrustment claim against a person who entrusted a vehicle to an individual who voluntarily, but negligently, operated the vehicle and was injured as a result.

Driscoll filed a response to the motion to dismiss, arguing that the Restatement (Second) of Torts § 390 (1964) and cases from other jurisdictions endorse the validity of a first-party negligent entrustment action. Furthermore, Driscoll argued that Kansas' system of modified comparative fault would not bar his claim as a matter of law because apportioning fault to the parties is a question of fact, making the determination improper on a motion to dismiss for failure to state a claim. Driscoll also argues that because Leroy provided him with an automobile in violation of K.S.A. 8-264 ("No person shall authorize or knowingly permit a motor vehicle owned by him or her under such person's control to be driven upon any highway by any person who is not licensed under the provisions of this act."), Kansas public policy should be construed as allowing Leroy to be held liable for any damages resulting from his negligent entrustment.

On April 21, 2011, the district court conducted a hearing on Leroy's motion to dismiss. After hearing arguments from the parties, the district court announced from the bench that it was granting Leroy's motion to dismiss on the basis that Kansas law currently does not recognize a first-party negligent entrustment claim. On April 29, Martell filed a notice of appeal. Supreme Court Rule 2.03(a) (2012 Kan. Ct. R. Annot. 11) states:

"A notice of appeal that complies with K.S.A. 60-2103(b)—filed after a judge of the district court announces a judgment to be entered, but before the actual entry of judgment—is effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part of the judgment from which the appeal is taken with sufficient certainty to inform all parties of the ruling to be reviewed on appeal."

On June 29, 2011, the district court filed its journal entry granting Leroy's motion to dismiss. Subsequently, on July 19, 2011, Driscoll filed a motion requesting that the district court certify its journal entry as a final judgment under K.S.A. 2011 Supp. 60-254(b). See K.S.A. 2011 Supp. 60-254(b) (When multiple parties are involved in a lawsuit, "the court may direct entry of a final judgment as to one or more, but fewer than all, . . . parties only if the court expressly determines that there is no just reason for delay.") On that same day, the district court issued an order certifying its decision as a final judgment under K.S.A. 2011 Supp. 60-254(b). This court later granted Driscoll's motion to transfer his appeal to this court.


Driscoll argues that the district court erred in dismissing his claim against Leroy for negligent entrustment. Driscoll contends that a person who negligently entrusts a motor vehicle to another (who is then injured while using the vehicle) can be held liable under Kansas law for the entrustee's injuries. Leroy counters by arguing that Kansas law does not recognize a first-party negligent entrustment claim. In the alternative, he argues that if such a claim exists under Kansas law, Driscoll's negligence in operating the vehicle—as evidenced in his petition—would prevent him from recovering damages based on Kansas' modified comparative fault system. See K.S.A. 2012 Supp. 60-258a(a) (plaintiff cannot be awarded damages if plaintiff is found to be 50 percent or more at fault for occurrence resulting in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.