James M. Kitchens v. Dirtworks, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01677-COA
JAMES M. KITCHENS
APPELLANT
v.
DIRTWORKS, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
9/11/2009
HON. LAWRENCE PAUL BOURGEOIS JR.
HARRISON COUNTY CIRCUIT COURT
JAMES MICHAEL PRIEST JR.
WILLIAM E. WHITFIELD III
KAARA LENA LIND
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT ENTERED FOR
DEFENDANT
AFFIRMED - 12/14/2010
BEFORE LEE, P.J., GRIFFIS AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
James M. Kitchens sustained serious injuries after falling more than twenty feet from
a forklift, improperly used to lift him.1 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
1
Because Dirtworks did not contest Kitchens’s allegation that DK Aggregates was
using the forklift improperly, we assume, for our analysis in this opinion only, that the use
of the forklift was unreasonable.
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.
¶2.
Mississippi law imposes liability on owners who entrust their vehicles or other
chattels to people they know, or should have known, to be reckless or incompetent. Kitchens
relies on Colorado law and argues the scope of negligent-entrustment liability should also
include breach of the duty to reclaim heavy equipment if the owner learns the equipment is
being used in an unsafe manner, creating a foreseeable risk of injury. Mississippi courts have
not addressed this theory of negligent entrustment. But even under Colorado’s view that
later-acquired knowledge of negligent use of the chattel imposes a duty to terminate the
entrustment, we find Kitchens offered insufficient evidence of Dirtworks’ later actual
knowledge of improper use of the forklift. Therefore, we affirm the Harrison County Circuit
Court’s grant of summary judgment in favor of Dirtworks, dismissing Kitchens’s negligententrustment claim.
STANDARD OF REVIEW
¶3.
We conduct a de novo review of a trial court’s grant or denial of a motion for
summary judgment. Lewallen v. Slawson, 822 So. 2d 236, 237 (¶6) (Miss. 2002) (citation
omitted).
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” M.R.C.P. 56(c). In determining whether the trial court properly granted
2
summary judgment, we view the facts in the light most favorable to the nonmovant.
Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 207 (¶12) (Miss. 1999) (citation
omitted).
¶4.
Summary judgment must be granted when the nonmoving party “fails to make a
showing sufficient to establish the existence of an element essential to his case and on which
he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So. 3d 565, 570 (¶16)
(Miss. Ct. App. 2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.
2d 413, 416 (Miss. 1988)). To withstand summary judgment, the nonmoving party must
produce significant probative evidence of a genuine issue for trial. Id. (citing Price v. Purdue
Pharm. Co., 920 So. 2d 479, 485 (¶16) (Miss. 2006)).
FACTS
¶5.
The facts considered in the light most favorable to Kitchens establish that in the
summer of 2006, Murray Moran, part-owner and day-to-day manager of Dirtworks, was
contacted by the manager of DK Aggregates, a company Moran also partly owned. DK
Aggregates needed to lease a special type of forklift called a “skylift,” designed to lift large
equipment but not people. The forklift was available at Puckett Rentals, but because DK
Aggregates did not have an account with Puckett Rentals, Moran leased the forklift using
Dirtworks’ account and “subleased” it to DK Aggregates. On the first of each month,
including November 1, 2006, the week of Kitchens’s accident, Dirtworks invoiced DK
Aggregates for approximately the cost of the lease with Puckett Rentals.
¶6.
Moran did not ask DK Aggregates how it intended to use the forklift. His deposition
3
testimony reflects he assumed DK Aggregates planned to lift pipe and equipment, as it had
done when Dirtworks had rented forklifts for it in the past. Moran claimed he did not
consider that DK Aggregates might use the forklift to lift people because, in the past, when
DK Aggregates needed to lift people, it rented a “manlift.”
¶7.
DK Aggregates ultimately used the subleased forklift for various tasks around the
gravel pit – including lifting people. DK Aggregates owned a “man-basket,” purchased by
Moran as part of an auction lot of steel pieces. According to DK Aggregates employees, they
chained the man-basket to the forklift to raise and lower other employees.
¶8.
Several months into the forklift’s sublease, DK Aggregates hired Pearl River
Fabricators to perform welding work at the site. Moran negotiated the contract. After work
had begun, Moran asked Pearl River to repair DK Aggregates’ gravel hopper. Because
access to the gravel hopper was more than twenty feet in the air, a DK Aggregates employee
(not Moran) lent Pearl River the forklift and man-basket to Kitchens and other welders.
¶9.
Pearl River, unsupervised by DK Aggregates, did not chain the man-basket to the
forklift. While Kitchens and two others were more than twenty feet in the air, the forklift
began to tilt and the man-basket slid off the prongs of the forklift, causing serious injury to
Kitchens.
¶10.
Kitchens sued both DK Aggregates and Dirtworks for negligence. He alleged
Dirtworks was negligent in entrusting DK Aggregates with the forklift. Kitchens claimed
Dirtworks, through Moran, should have foreseen DK Aggregates would use the skylift in an
unreasonably risky way. He further alleged that because DK Aggregates used the forklift in
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an unreasonably dangerous manner, causing Kitchens’s injuries, Dirtworks must share in the
liability.
¶11.
The trial court granted summary judgment in favor of Dirtworks. It found Kitchens
did not present sufficient evidence to create the existence of Dirtworks’ knowledge, an
essential element to Kitchens’s negligent-entrustment claim.
The trial court granted
Dirtworks a final judgment under Rule 54(b) of the Mississippi Rules of Civil Procedure.2
Kitchens timely appealed.
DISCUSSION
¶12.
Kitchens presented no evidence that Dirtworks knew or should have known at the time
DK Aggregates asked Dirtworks to rent the forklift on its behalf that DK Aggregates would
use the forklift in an unreasonably dangerous way (to lift people). Moran testified that based
on past rentals for DK Aggregates, Dirtworks assumed DK Aggregates would use the forklift
to lift pipe and other heavy equipment. Since DK Aggregates had in the past rented a special
manlift to lift people, Dirtworks also assumed that DK Aggregates would not use the forklift
to lift people. Kitchens put forth no evidence creating a factual dispute whether Dirtworks’
assumptions at the time of the initial sublease were unreasonable. Thus, we affirm the trial
court’s finding there was no issue of negligent entrustment in Dirtworks’ renting the forklift
and initially subleasing it to DK Aggregates.
¶13.
But there is evidence that DK Aggregates, after receiving the forklift, began using it
2
At the time the trial court granted summary judgment to Dirtworks, DK Aggregates
was still a defendant in the lawsuit.
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to lift people. Kitchens argues Dirtworks learned, or should have learned, through Moran,
who is part-owner of both companies, about this unreasonably dangerous use. For Kitchens
to have raised a claim of negligent entrustment based on these facts, Dirtworks must have
had a duty to terminate the sublease if it had, in fact, learned DK Aggregates was unsafely
using the forklift. Kitchens urges that we look to the Colorado Supreme Court’s decision in
Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992), which imposes such a duty to terminate the
entrustment upon later-acquired actual knowledge that an unreasonable risk has come to light
after the initial entrustment.
A.
The Tort of Negligent Entrustment
1.
¶14.
Mississippi’s Adoption
Doctrine
of the Negligent-Entrustment
In 1924, Mississippi first imposed negligence liability on the owner, in addition to the
driver, of a car driven recklessly and causing injury. Anderson v. Daniel, 136 Miss. 456, 101
So. 498 (1924). In Anderson, the car owner breached his duty by permitting his minor son,
whom he knew was a reckless driver, to use his car. In 1931, the Mississippi Supreme Court
imposed this same liability on another car-owning parent. Herrman v. Maley, 159 Miss. 538,
132 So. 541, 542 (1931). The court reasoned “parents . . . must suffer the consequences of
permitting [their minor children] to drive an automobile when they know, or with reasonable
care should have known, of their incompetency.” Id.
¶15.
Over the next twenty years, the supreme court further expanded liability to employers
who allowed their “incompetent” (habitually drunk) employees to use company vehicles for
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non-business purposes (no vicarious liability). In a series of cases, the court imposed liability
on employers for their employee’s drunk driving when the employer had actual or
constructive knowledge that the employee was a habitual drinker, making it foreseeable the
employee would drive the company vehicle while drunk. Petermann v. Gary, 210 Miss. 438,
444, 49 So. 2d 828, 830 (1951); Richton Tie & Timber Co. v. Smith, 210 Miss. 148, 156-58,
48 So. 2d 618, 620-21 (1950); Levy v. McMullen, 169 Miss. 659, 665-66, 152 So. 899, 900
(1934); Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318, 322 (1933).
¶16.
In 1951, the supreme court imposed negligent-entrustment liability on a non-
parent/non-employer defendant. Dixie Drive It Yourself Sys. Jackson Co. v. Matthews, 212
Miss. 190, 54 So. 2d 263 (1951). The defendant rental company, Dixie Drive It Yourself,
was found liable for renting a car to a drunk driver, Shivers. Dixie had frequently rented
Shivers cars. Before his first rental, Dixie required an application, including signing a
statement he would not drive drunk, and references about his driving. When his references
checked out, Dixie began renting cars to Shivers without further inquiry. On his 57th rental,
Shivers wrecked the car because he was driving drunk. Id. at 196, 54 So. 2d at 264. On the
“narrow issue” of whether Dixie knew or should have known Shivers was drunk at the time
he rented the car, the supreme court found there was evidence supporting the jury’s verdict
that Dixie did know. Id. at 201-02, 54 So. 2d at 266-67.
2.
¶17.
Mississippi's Adoption of the Restatement (Second) of Torts,
Section 390
By the 1950s, Mississippi had adopted the Restatement (Second) of Torts, section 390,
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for its definition of negligent entrustment. See, e.g., Lovett Motor Co. v. Walley, 217 Miss.
384, 393, 64 So. 2d 370, 374 (1953). Under section 390:
One who supplies directly or through a third person a chattel for the use of
another whom the supplier knows or from facts known to him should know to
be likely because of his youth, inexperience or otherwise, to use it in a manner
involving unreasonable risk of bodily harm to himself and others whom the
supplier should expect to share, in or be in the vicinity of its use, is subject to
liability for bodily harm caused thereby to them.
Restatement (Second) Torts, § 390 (1965).
¶18.
This court has interpreted section 390 to contain three elements required to establish
a prima facie case of negligent entrustment:
(1) that the defendant supplied a third party with the chattel in question for the use of
the third party;
(2) 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
(3) that harm resulted from the use of the chattel.
Bullock Bros. Trucking Co. v. Carley, 930 So. 2d 1259, 1262 (¶5) (Miss. Ct. App. 2005).
¶19.
In recent negligent-entrustment cases, the determining issue has been either the first
element (Was the defendant a “supplier” of the chattel?) or the second (Did the supplier have
actual or constructive knowledge the third party would use the chattel in an unreasonably
risky way?). See, e.g., Laurel Yamaha, Inc. v. Freeman, 956 So. 2d 897, 902-04 (¶¶18-24)
(Miss. Ct. App. 2007) (discussing supplier requirement); Davis v. Seymour, 868 So. 2d 1061,
1063-64 (¶¶8-11) (Miss. Ct. App. 2004) (discussing knowledge requirement).
¶20.
Here, Dirtworks only challenges the knowledge element. It neither disputes it
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“supplied” the forklift, nor does it contest that harm resulted from the chattel’s use.
¶21.
Still we find Mississippi’s definition of “supplier” is relevant to this appeal. Our
courts have defined a “supplier,” for purposes of negligent entrustment, as one who has a
right to control the chattel at the time of the injury. Laurel Yamaha, 956 So. 2d at 903 (¶22)
(citing Sligh v. First Nat’l Bank of Holmes County, 735 So. 2d 963, 969 (¶¶33-34) (Miss.
1999)). In fact, Sligh emphasizes this right to control is the “paramount requirement” of
negligent-entrustment liability. Sligh, 735 So. 2d at 969 (¶33). In contrast, the Colorado case,
which Kitchens asks us to follow on the second knowledge element, defines a supplier as one
who has control at the time of initial entrustment.3 Casebolt, 829 P.2d at 359-60.
3.
¶22.
The Duty to Terminate the Entrustment
Focusing on the knowledge element, Dirtworks claims the trial court properly granted
summary judgment because the only relevant knowledge is what Dirtworks knew or should
have known at the time of the initial sublease (July or August 2006). Dirtworks argues that
because Kitchens did not produce any evidence of actual or constructive knowledge at the
time of the initial lending, Mississippi law does not recognize negligence under these
3
Colorado recognizes two separate duties: (1) the duty not to relinquish control of a
vehicle if it is reckless use is reasonably foreseeable; and (2) the duty to terminate
entrustment if one still has the ability to control the vehicle and it is foreseeable further use
will be reckless. Casebolt, 829 P.2d at 359-60. Colorado relies on Restatement (Second)
of Torts sections 390, and 308 and 309, to impose the first duty and, unlike Mississippi, can
hold sellers liable for negligent entrustment. Id. Colorado relies on the logic of the
Restatement sections to impose the second duty and the strong public policy that those who
have the ability to regain control should in the face of foreseeable harm to others. Id. at 36062.
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circumstances.
¶23.
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.
¶24.
There are no Mississippi cases addressing this specific issue. 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.” Casebolt, 829 P.2d at 360. In Casebolt, an employer
allowed his employee to use the employer’s car for personal use. There was no evidence the
initial lending was negligent. But on the day the employee was set to return home from an
out-of-town work site, the employer drank a few beers with the employee. The employer did
not revoke the entrustment or discourage the employee from drinking. Id. at 354-55. That
evening the employee died in a car accident caused by employee’s intoxication. The
employee’s wife sued the employer, arguing the employer was liable under a negligententrustment theory.
¶25.
The Colorado Supreme Court held the employer “had a duty to take reasonable action
to terminate the entrustment before leaving the . . . restaurant if by that time he possessed
knowledge that [Lindel] Casebolt was likely to use the vehicle in a manner involving
unreasonable risk of physical harm to himself or others.” Id. at 361. Relying on section 390
of the Restatement (Second) of Torts, the Colorado court found the negligent-entrustment
10
doctrine included the duty to terminate the entrustment when a reasonable person would
terminate it. Id. at 360-61.
¶26.
While the Colorado Supreme Court recognized the Restatement’s negligent-
entrustment doctrine “is intended to reflect a conclusion that a duty exists under the specific
and limited circumstances for which those sections [308, 309, and 390] provide guidance,”
it nevertheless expanded this duty to include terminating the entrustment when a reasonable
person would terminate it.4
¶27.
In considering whether Mississippi’s negligent-entrustment doctrine is as broad as
Colorado’s, we first note section 390 uses the present tense “supplies,” and this court has
used the past tense “supplied” in addressing this required element. Both tenses can describe
a one-time action (supplying a forklift for the day) or an action that occurs over time
(supplying a forklift for four months). To say one has a duty to terminate the entrustment is
another way of saying one has a duty not to continue supplying the forklift. For Dirtworks,
the duty, viewed in this way, would be not to renew the month-to-month sublease on
November 1, less than a week prior to Kitchens’s accident.
¶28.
Our supreme court has stated the right to control the chattel is the “paramount
requirement for liability.” Sligh, 735 So. 2d at 970 (¶33). It logically follows that the right
to control imposes a duty to exercise that control if unreasonably risky use is foreseeable.
4
Colorado was guided by public policy, concluding under these circumstances the
social utility of an employer being able to lend his employee a vehicle for personal reasons
was low, the burden on the employer to request his keys back was also low, and the public
risk of the employee driving drunk was high.
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¶29.
We further point out that Mississippi has looked to Colorado before in determining
the scope of negligent-entrustment liability. In Sligh, Mississippi relied on Peterson v.
Haltsted, 829 P.2d 373 (Colo. 1992), handed down by the Colorado Supreme Court on the
same day as Casebolt and relying on Casebolt’s reasoning, to determine whether a bank that
financed a car was a “supplier” for purposes of negligent-entrustment liability. Sligh, 735
So. 2d at 973 (¶63) (holding the bank was not a “supplier” because it had no right to control
the vehicle after purchase). Sligh also cited Casebolt to support its conclusion the right to
control is the paramount requirement for negligent-entrustment liability. Id. at 969 (¶33).
¶30.
Earlier employer-employee cases appear to impose liability for continuing to allow
the employee use of the vehicle, relying on what the employer knew or should have known
over the course of the employment, not just what the employer knew when it started allowing
the employee to use the company vehicle.
¶31.
While there are similarities between Mississippi’s and Colorado’s interpretations of
the tort, there are important distinctions we must also consider. First, Mississippi has never
imposed a duty to reclaim the vehicle in a commercial transaction. In the early parent-minor
child and employer-employee cases, both the parent and employers had a duty, independent
of negligent entrustment, to know whether their child or employee was reckless. And they
also had the ability to take the car keys back at any point. Here, Dirtworks had no duty to
monitor DK Aggregates. It is not its parent company. We recognize that liability in this
case, with the unique facts of a common owner, may impose an undue burden on future
commercial lessors, like Puckett Rentals, which is not a defendant in this case, to monitor
12
lessees who otherwise appeared safe and competent at the time the lease was formed.
¶32.
Second, Mississippi, unlike Colorado, expressly follows the language of section 390,
which is silent about a duty to reclaim the chattel. The Restatement (Second) of Torts has
a separate section, section 318, that imposes a duty to regain control of the chattel:
If the actor permits a third person to use land or chattels in his possession
otherwise than as a servant, he is, if present, under a duty to exercise
reasonable care so to control the conduct of the third person as to prevent him
from intentionally harming others or from so conducting himself as to create
an unreasonable risk of bodily harm to them, if the actor (a) knows or has
reason to know that he has the ability to control the third person, and (b)
knows or should know of the necessity and opportunity for exercising such
control.5
Restatement (Second) of Torts § 318 (1965).
¶33.
In reading sections 390 and 318 together, it is arguable that Kitchens is really asking
that we impose a duty closer to section 318, without proving Dirtworks was present, had the
ability to control DK Aggregates, and knew of the necessity to regain control of the forklift.
¶34.
But regardless of the origin of the duty Kitchens requests we impose – unlike the duty
not to entrust initially, which can be breached by constructive knowledge – the duty to
terminate the entrustment requires evidence of actual knowledge. See Casebolt, 829 P.2d at
360-61. We point out Casebolt did not impose a duty to monitor the employee’s use after
the initial entrustment. Rather, the Colorado Supreme Court remanded the case to determine
5
Section 318 has an official caveat: “The Institute expresses no opinion as to whether
there may not be a duty of reasonable care to control the conduct of the third person . . .
where the actor, although not present, is in the vicinity, is informed of the necessity and
opportunity of exercising such control, and can easily do so.”
13
whether the employer possessed knowledge of the employee’s incompetence. Id.
¶35.
Kitchens argues Dirtworks should have learned DK Aggregates was using the forklift
to lift people. But, even following Casebolt’s directives, consistent with the Colorado case
and our interpretation of Mississippi law, our inquiry still turns on actual knowledge. Thus,
we must instead ask whether there is evidence Dirtworks “acquire[d] information” about DK
Aggregates’ unreasonably risky use. Id. at 360; cf. Dixie Drive It Yourself, 212 Miss. at 20203, 54 So. 2d at 267 (imposing liability, not for failing to require another reference or
application after initial rental, but for renting another car despite actual evidence of Shivers’s
intoxication).
B.
¶36.
Dirtworks’ Knowledge
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 negligententrustment 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.
¶37.
Kitchens argues Dirtworks nevertheless knew what DK Aggregates was doing through
Moran. Kitchens reasons that because Moran knew Pearl River was working on the gravel
hopper, Moran should have known work on the gravel hopper required lifting Kitchens and
others twenty feet in the air. Kitchens further claims Moran should have known DK
14
Aggregates would lend the forklift and man-basket to Pearl River for this purpose.
¶38.
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. From Kitchens’s evidence, Moran’s only involvement in day-to-day matters for DK
Aggregates was on the Pearl River project. If Moran was responsible for knowing what was
going on at the gravel hopper Kitchens was repairing, his responsibility arose as an agent for
DK Aggregates, not Dirtworks. 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.
¶39.
Even assuming our supreme court would recognize Casebolt’s holding concerning
later-acquired knowledge of unreasonable risk, Kitchens’s evidence does not raise a factual
dispute of actual knowledge by Dirtworks triggering a duty to terminate the sublease.
Therefore, we affirm the circuit court’s decision that Dirtworks is entitled to summary
judgment as a matter of law on Kitchens’s negligent-entrustment claim.
¶40. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. KING, C.J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
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