# Fowler v. Park Corp. > Supreme Court of Missouri · July 17, 1984 · 673 S.W.2d 749 URL: https://www.frixlaw.com/law-library/cases/9776702 ## Case - **Full name:** Herbert J. FOWLER, Jr., Plaintiff-Respondent, v. PARK CORPORATION, Defendant-Appellant - **Court:** Supreme Court of Missouri - **Decided:** July 17, 1984 - **Citations:** 673 S.W.2d 749 - **Precedential status:** Published - **Opinion:** Dissent by Welliver - **Judges:** Blackmar, Rendlen, Gunn, Billings, Welliver, Higgins, Donnelly - **Cited by:** 127 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776702 ## How later opinions describe it (automated extraction) - holding that a negligent entrustment instruction was proper, in part, because it was consistent with the Restatement - stating that “[i]t also remains the law of Missouri that there are no legal degrees of negligence” ## Opinion text WELLIVER, Judge, dissenting. I respectfully dissent. In my opinion the trial court erred in submitting this case under a theory of negligent entrustment. The evidence shows that defendant for several years leased an old engine to Railcar and that this engine was under the control of Railcar at all times. In the fall of 1980, defendant purchased a new engine and thereafter agreed to loan it to Railcar, after 4 p.m. each day. There was no evidence before the jury suggesting that defendant knew or had reason to know that Railcar employed persons who were not fully trained to operate the engine at the time this arrangement was instituted on October 2, 1978. Nor is there any indication that defendant had become aware of DeHart’s or Mitan’s ill-training prior to the accident from which this suit arises. It seems clear to me, therefore, that plaintiffs failed to satisfy one of the elements of negligent entrustment, as set forth in Evans v. Allen Auto Rental & Truck Leas *759 ing, Inc., 555 S.W.2d 325, 326 (Mo. banc 1977), namely “that the entrustor knew or had reason to know of the entrustee’s incompetence.” Id. The principal opinion concludes that the jury could have found that defendant should have known of DeHart’s and Mi-tan’s lack of training because, in its view, “[defendant, in loaning the engine to Rail-car, had a duty to make sure that Railcar allowed only competent persons to operate it.” The imposition of such a duty is, so far as I can determine, unprecedented. Certainly the authorities cited provide no support. The language and comments of §§ 390 and 391 of the Restatement (Second) of Torts leave no doubt that the drafters of the Restatement contemplated holding an entrustor liable only when, at the time of the entrustment, the entrustor had actual knowledge of the entrustee’s incompetence or had reason to know of the incompetence from the attending circumstances. No court in any jurisdiction has interpreted §§ 390 and 391 to require a donor or lessor of equipment to affirmatively investigate whether the lessee’s employees are competent to operate the equipment. Compare Hetherton v. Sears, Roebuck & Co., 445 F.Supp. 294, 302 (D.Del.1978), rev’d. on other ground, 593 F.2d 526 (3d Cir.1979) (no duty to investigate the background of entrustee); Altman v. Morris Plan Co., 58 Cal.App.3d 951 , 130 Cal.Rptr. 397, 403 (1976). The principal opinion citation of Henderson Brothers Stores, Inc. v. Smiley, 120 Cal.App.3d 903 , 174 Cal.Rptr. 875 (1981), 1 is inexplicable. Nothing stated or suggested in the opinion supports the proposition attributed to the case by the principal opinion. Nor do the prior negligent entrustment cases in this state provide any basis for imposing the duty imposed by the principal opinion. See Evans v. Allen Auto Rental & Truck Leasing, Inc., supra; Bell v. Green, 423 S.W.2d 724 (Mo. banc 1968); Clark v. Martin, 650 S.W.2d 699 (Mo.App.1983); Peters v. Henshaw, 640 S.W.2d 197 (Mo.App.1982); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1981). See also Hendrickson v. Cumpton, 632 S.W.2d 512 (Mo.App.1982); Heafner v. Safeco Nat’l. Insurance Co., 613 S.W.2d 478 (Mo.App.1981); Herrera v. Reicher, 608 S.W.2d 539 (Mo.App.1980); Newson v. City of Kansas City, 606 S.W.2d 487 (Mo.App.1980). So extraordinary is the duty imposed by the majority today that I can only surmise they fail to comprehend its ramifications. As a result of the principal opinion, it would appear that donors and lessors of equipment and other chattel must investigate the qualifications of every employee of the firm acquiring the equipment who may operate it. Not only must donors and lessors make such an investigation at the time of the initial entrustment, but under the unqualified language of the principal opinion, it would appear they must also evaluate any employees who subsequently are hired. It boggles the mind to consider all of the ramifications of this new duty on the leas *760 ing industry in this state. One of the vehicles most used today for financing airplanes, buses, boats, and virtually all heavy construction equipment is the lease. Much of long-term automobile financing and all daily rental of automobiles involve leasing. Are banks, financial companies, small equipment leasing companies, 2 and daily automobile leasing companies all to be held to the same standard of care herein saddled on the owner of the railway engine? Negligent entrustment is a theory of vicarious liability designed to enable a plaintiff to reach a lessor who would not otherwise be liable. The theory of negligent entrustment developed with the coming of the automobile where an owner negligently loaned (or leased) his automobile to persons known to be incompetent to operate the vehicle. I respectfully submit that the majority creates a theory of negligent entrustment never heretofore contemplated in the law and that in so doing, they jeopardize the future of the entire leasing and lease-financing industry of Missouri. . The citation of this case has been withdrawn from the principal opinion. This California case and sections 390 and 391 of the Restatement (Second) of Torts are the only authorities relied upon by the principal opinion as authority for the result reached. Sections 390 and 391 provide: Chattel for Use by Person Known to be Incompetent 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. Chattel Known to be Dangerous One who supplies directly or through a third person a chattel for another to use for the supplier’s business purposes, knowing or having reason to know that it is or is likely to be dangerous for the use for which it is supplied, is subject to liability as stated in §§ 388-390. There is no testimony in the record that appellant supplier either knew or had reason to know prior to the accident that DeHart and Mitán might be incompetent to operate the engine. There is no testimony suggesting that this particular engine was inherently dangerous or differed in any way from any ordinary engine. . i.e. rental companies that rent and lease backhoes and their accessories, lawn mowers, chain saws, tractors, jacks, electric saws and drills, and all other "do it yourself" type of equipment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776702. Public record. Not legal advice.