The first element of negligent entrustment requires either ownership or control of the car. See De Blanc ex rel. Estates of De Blanc v. Jensen, 59 S.W.3d 373, 375- 76 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Ownership of a car, based on established facts, is a conclusion of law.
Several Texas courts have concluded that ownership of the vehicle is not absolutely required. See Fox–Taylor v. Auto Market, Inc., No. 03–08–00158–CV, 2008 WL 3539992, at *1 n.1 (Tex.App.-Austin Aug. 15, 2008, no pet.) (mem. op.); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 52 (Tex.App.-Fort Worth 2002, no pet.) ; De Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex.App.-Houston [1st Dist.] 2001, no pet.) ; Rodriguez v. Sciano, 18 S.W.3d 725, 728 (Tex.App.-San Antonio 2000, no pet.) ; Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex.App.-Texarkana 1992, no writ). These cases hold that a non-owner may be liable for negligent entrustment when it has the right to control the vehicle.
To establish a claim for negligent entrustment, a plaintiff must ultimately prove the following elements: "(1) the owner entrusted the automobile, (2) to a person who was an unlicensed, incompetent, or reckless driver, (3) who the owner knew or should have known was incompetent or reckless, (4) the driver was negligent, and (5) the driver's negligence proximately caused the accident and the plaintiff's injuries." Robson v. Gilbreath, 267 S.W.3d 401, 405 (Tex. App. 2008); see also De Blanc ex rel. Estates of De Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex. App. 2001)) (citing Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). "Knowledge of the driver's incompetency when the owner gives consent is an essential element of a negligent entrustment action."
To establish a claim for negligent entrustment of an automobile, a plaintiff must prove the following elements: (1) the owner entrusted the automobile, (2) to a person who was an incompetent or reckless driver, (3) who the owner knew or should have known was incompetent or reckless, (4) the driver was negligent, and (5) the driver's negligence proximately caused the accident and the plaintiff's injuries. See Mayes, 236 S.W.3d at 758; De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Knowledge or constructive knowledge of the driver's incompetency at the time of entrustment is an essential element of a negligent entrustment action.
The entrustment element requires a showing that the defendant either owned or had the right to control the chattel when the injury occurred. SeeDe Blanc v. Jensen , 59 S.W.3d 373, 376 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The right to control requires the entrustor have a superior possessory right to the chattel than the person to whom it was entrusted.
The element of entrustment requires the plaintiff to show that the defendant either owned or had the right to control the vehicle when the injury occurred. De Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex. App.—Houston [1st Dist.] 2001, no pet.). A right to control exists if the entrustor possesses a superior right to the vehicle over the person to whom it was entrusted.
However, having decided the issue of liability in Richard's favor, that ruling necessarily included a determination that Richard had established the elements of his underlying negligence claim, including that the driver proximately caused injury to Richard. See De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex. App.—Houston [1st Dist.] 2001, no pet.) ("To establish negligent entrustment of an automobile, a plaintiff must prove . . . [that] the driver's negligence proximately caused the accident and the plaintiff's injuries."); Bedford v. Moore, 166 S.W.3d 454, 459 (Tex. App.—Fort Worth 2005, no pet.). The trial court noted as much in its conclusions of law, including that, "[t]o recover on a claim of negligent entrustment, a plaintiff must prove: . . . (f) [t]he driver's negligence proximately caused injury to the plaintiff."
To establish negligent entrustment of an automobile, a plaintiff must prove the following elements: (1) the owner entrusted the automobile, (2) to a person who was an incompetent, or reckless driver, (3) who the owner knew or should have known was incompetent or reckless, (4) the driver was negligent, and (5) the driver's negligence proximately caused the accident and the plaintiff's injuries. De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (citing Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). AAMS and PAVL argue that the summary judgment evidence conclusively negates the first and second elements of negligent entrustment.
To establish Triple R's liability under the theory of negligent entrustment, FWTA had to show that Triple R owned the vehicle, that it entrusted the vehicle to an unlicensed, incompetent, or reckless driver that Triple R knew or should have known to be unlicensed, that the driver was negligent on the occasion in question, and that the driver's negligence proximately caused the accident. See De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (citing Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). A nonowner of a vehicle may be held liable for negligent entrustment of a vehicle if the nonowner has the right to control the vehicle.
To establish negligent entrustment of an automobile, a plaintiff must prove the following elements: (1) the owner entrusted the automobile, (2) to a person who was an unlicensed, incompetent, or reckless driver, (3) who the owner knew or should have known was incompetent or reckless, (4) the driver was negligent, and (5) the driver's negligence proximately caused the accident and the plaintiffs injuries. De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (citing Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). An entrustee's previous driving record or driving habits may show incompetence, recklessness, or intemperance.