Kitchens v. Dirtworks, Inc.


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Docket Number: 2009-CA-01677-COA

Court of Appeals: Opinion Link
Opinion Date: 12-14-2010
Opinion Author: Maxwell, J.
Holding: Affirmed.

Additional Case Information: Topic: Personal injury - Negligent entrustment - Actual knowledge
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Carlton, JJ.
Concur in Part, Concur in Result 1: Barnes, J., without separate written opinion.
Concurs in Result Only: King, C.J., concurs in result only without separate written opinion.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 09-11-2009
Appealed from: Harrison County Circuit Court
Judge: Lawrence P. Bourgeois, Jr
Disposition: SUMMARY JUDGMENT ENTERED FOR DEFENDANT
Case Number: A2402-2007-84

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: James M. Kitchen




JAMES MICHAEL PRIEST JR.



 
  • Appellant #1 Reply Brief

  • Appellee: Dirtworks, Inc. WILLIAM E. WHITFIELD III, KAARA LENA LIND  

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    Topic: Personal injury - Negligent entrustment - Actual knowledge

    Summary of the Facts: James Kitchens sustained serious injuries after falling more than twenty feet from a forklift, improperly used to lift him. Kitchens’s employer was repairing a gravel hopper for D.K. Aggregates, LLC. DK Aggregates subleased the forklift from Dirtworks, Inc. Kitchens claims Dirtworks is liable for his injuries because it negligently entrusted the forklift to DK Aggregates. Kitchens alleges Dirtworks, through a common owner of both Dirtworks and DK Aggregates, knew or should have known DK Aggregates was improperly using the subleased forklift to lift people. The court granted summary judgment in favor of Dirtworks. Kitchens appeals.

    Summary of Opinion Analysis: Elements required to establish a prima facie case of negligent entrustment include that the defendant supplied a third party with the chattel in question for the use of the third party; that the supplier of the chattel knew or should have known that the third party would use the chattel in a manner involving an unreasonable risk of harm; and that harm resulted from the use of the chattel. A “supplier,” for purposes of negligent entrustment, is defined as one who has a right to control the chattel at the time of the injury. Kitchens argues, because Dirtworks maintained the right to control the forklift by terminating the month-to-month sublease, its knowledge from the initial entrustment to the time of the accident is relevant. Kitchens relies on Colorado law for the proposition that within the negligent-entrustment doctrine is the duty to terminate the entrustment if the entrustor acquires information that such an unreasonable risk exists or has come into being after the entrustment and the entrustor has the legal right and ability to end the entrustment. The right to control the chattel is the paramount requirement for liability. It logically follows that the right to control imposes a duty to exercise that control if unreasonably risky use is foreseeable. Dirtworks had no duty to monitor DK Aggregates. It is not its parent company. Kitchens’s primary evidence stems from the relationship of the two companies through their common owner, Moran. But this relationship is different than the parent-minor child relationship or employer-employee relationship frequently found in negligent entrustment cases. In both of those relationships, there is an assumption a parent should know that his child drives recklessly or an employee should know his employee is showing up to work drunk. Here, Dirtworks is not DK Aggregates’ parent company, so it has no duty to know what DK Aggregates is doing. While there is evidence DK Aggregates had used the forklift to lift people prior Kitchens’s accident, Kitchens failed to come forward with any evidence to show Moran or any other Dirtworks agent actually knew DK Aggregates was doing this. If there was prior improper use of the forklift, the evidence does not indicate it was on any projects involving Moran. Only Moran’s actual prior knowledge of improper use can be imputed to Dirtworks. What Moran should have known as an agent for DK Aggregates cannot be imputed to Dirtworks. Thus, Kitchens’s evidence does not raise a factual dispute of actual knowledge by Dirtworks triggering a duty to terminate the sublease.


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