No Negligent Entrustment Between Co-Owners Absent Superior Control; No Text-Sender Duty Without Knowledge the Driver Will Read While Driving (Mont. 2026)

Estate of Janice Graham v. Howell, 2026 MT 176 (Mont. Aug. 4, 2026)

1. Introduction

Estate of Janice Graham v. Howell arises from a fatal head-on collision on U.S. Highway 93 in Ravalli County. Janice Graham was killed when a vehicle driven by Michael Howell crossed the centerline and struck the Grahams’ vehicle. Michael was later shown to have a THC level “roughly three times the legal limit” and was convicted in a separate criminal proceeding.

Rather than suing only the driver, Janice’s Estate (through personal representative Mark Graham) pursued negligence claims against Michael’s wife, Victoria Howell. The Estate alleged Victoria (1) negligently entrusted the couple’s jointly owned vehicle to Michael despite knowledge he was under the influence of marijuana, and (2) negligently contributed to the crash by texting Michael while knowing he was driving. The District Court granted Victoria summary judgment for lack of duty; the Supreme Court of Montana affirmed.

The decision is significant because it (a) reaffirms Montana’s “superior legal right/control” prerequisite for negligent entrustment and applies it to co-ownership, and (b) squarely addresses whether a text-message sender owes a duty to third parties harmed by a driver who may be distracted by the message.

2. Summary of the Opinion

  • Negligent entrustment: No duty where the alleged “entrustor” is merely a co-owner lacking superior or exclusive control over the vehicle. Because Michael had an independent legal right to use the jointly owned car, Victoria could not “supply” it to him or legally prevent his use.
  • Text messaging: No duty on this record for Victoria to refrain from texting Michael merely because she knew he was driving. The Estate failed to produce non-speculative evidence that Victoria knew or had special reason to know Michael would read/respond while driving, or that her texts were likely to distract him and create unreasonable risk.
  • Procedural posture matters: Summary judgment was appropriate because the Estate’s proof of essential elements (duty/foreseeability) was speculative under the Rule 56 standard.

3. Analysis

A. Precedents Cited (and How They Shaped the Result)

1) Summary judgment and “non-speculative” proof

  • Kostelecky v. Peas in a Pod LLC, 2022 MT 195, ¶ 17: The Court relied on Kostelecky for the governing summary-judgment lens—there must be a “non-speculative record fact” materially inconsistent with an essential element. This was pivotal to rejecting the Estate’s inference that Victoria “should have known” Michael was intoxicated based solely on later blood-test results.
  • Prindel v. Ravalli Cnty., 2006 MT 62, ¶ 19: Reiterated that evidence is viewed in the light most favorable to the nonmovant, with reasonable inferences drawn in that party’s favor. Even with that deference, the Court found the Estate’s inferences too conjectural.
  • Knucklehead Land Co. v. Accutitle, Inc., 2007 MT 301, ¶ 26: Reinforced the limiting principle that “unsupported speculation” cannot defeat summary judgment. This underwrote the Court’s refusal to convert the tight timing between texts and the crash into proof of Victoria’s foreseeability or knowledge.

2) Duty as a question of law

  • Poole ex rel. Meyer v. Poole, 2000 MT 117, ¶ 19: Provided the black-letter elements of negligence and the rule that duty/scope are questions of law. The Court used Poole to frame both theories as threshold duty questions suitable for resolution at summary judgment.
  • Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 13: Supplied the core maxim: without duty and breach, no negligence exists—supporting a dispositive focus on duty.

3) Negligent entrustment: “superior legal right/control” as a precondition

  • McGinnis v. Hand, 1999 MT 9, ¶ 10: Identified Montana’s two negligent-entrustment theories—(a) owner/controller negligent in entrusting, and (b) supplier liability for providing a chattel to one likely to use it dangerously (Restatement (Second) of Torts §§ 308 and 390). The Court emphasized that the second is a “special application” of the first.
  • Williams v. State Med. Oxygen & Supply, Inc., 265 Mont. 111, 114-15, 874 P.2d 1225, 1227 (1994): Cited through McGinnis as authority recognizing negligent entrustment/supply principles.
  • Bahm v. Dormanen, 168 Mont. 408, 411-13, 543 P.2d 379, 381-82 (1975): The central negligent-entrustment anchor. Bahm held that mere physical ability to prevent use is not enough; negligent entrustment requires “control which is greater than physical power to prevent,” i.e., a “superior if not exclusive legal right.” The Court analogized co-ownership here to the shared borrowing scenario in Bahm: because neither party had superior legal entitlement, no duty to “entrust” could arise.
  • Restatement (Second) of Torts § 308 (1965) and § 390 (1965): Used to define the doctrinal contours—“control” and “supplying” are conceptually linked to legal entitlement/consent, not mere proximity or relationship.

4) Foreseeability, third-party conduct, and text-message duty

  • Henricksen v. State, 2004 MT 20, ¶ 21: Supplied Montana’s foreseeability-plus-policy framework for duty, including the four policy factors (moral blame, prevention of harm, burden/consequences, insurance).
  • Bassett v. Lamantia, 2018 MT 119, ¶ 25: Quoted for the “fundamental question” of duty—whether the plaintiff’s interests merit protection against defendant’s conduct because the defendant could reasonably foresee injury.
  • Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928): Cited for the classic formulation: “The risk reasonably to be perceived defines the duty to be obeyed.” The Court used this to underline that remote communication does not automatically create a foreseeable, legally cognizable risk.
  • Restatement (Second) of Torts § 303 (and comment d): Provided the doctrinal bridge when negligence allegedly operates through another person’s actions: an act is negligent if the actor realizes or should realize it is likely to affect another’s conduct in a way that creates unreasonable risk. This was the Court’s primary tool for evaluating texting as “independent” alleged negligence rather than vicarious liability.
  • Kubert v. Best, 75 A.3d 1214, 1225-29 (N.J. Super. Ct. App. Div. 2013): The Court treated Kubert as persuasive authority for a narrow texting-duty rule: a duty may arise only when the sender has “actual knowledge or special reason to know” the recipient will view the text while driving. Montana effectively adopted that limiting concept (at least at the duty/foreseeability stage), refusing to impose a blanket “do not text anyone who is driving” duty.
  • Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d 515, 522 (Ind. Ct. App. 2010): Cited to illustrate circumstances where the communicator’s conduct could be more directly intertwined with the driver’s dangerous operation (e.g., concerted activity with an intoxicated driver).
  • Hall v. Naguit, No. 19STCV46417, 2022 Cal. Super. LEXIS 24634 (Cal. Super. Ct. 2022): Used as an additional comparator rejecting liability where the sender did not compel reckless driving and lacked the requisite knowledge that texts would be read while driving.

5) Record limits on appeal

  • M. R. App. P. 8(1): The Court refused to consider new excerpts from the criminal proceeding included only in a supplemental appendix on appeal—reinforcing that duty/foreseeability analysis at summary judgment is confined to the record presented below.

6) The concurrence’s cautionary notes (third-party intoxication concepts)

  • § 27-1-710(4), MCA and Babcock v. Casey's Mgmt., LLC, 2021 MT 215: Justice Shea’s concurrence pointed to Montana’s recognition—through statute and common law—that third parties can sometimes bear liability connected to an intoxicated person’s conduct (e.g., dram shop contexts). While not applicable on the Estate’s pleaded and argued theories, the concurrence signals that different allegations (e.g., furnishing or facilitating impairment) might change the duty analysis in a future case.

B. Legal Reasoning

1) Negligent entrustment fails when “entrustment” is impossible as a matter of law

The Court treated “control” as the gatekeeping element. Relying on Bahm v. Dormanen and Restatement § 308’s comment a, it held that being “in control” requires that the third person’s use be contingent “only by consent of the actor.” Co-ownership negated that premise: Michael’s right to use the vehicle “originated from his legal right as the vehicle’s co-owner,” not from Victoria’s permission.

The doctrinal move is important: the Court did not balance competing factual inferences about Victoria’s knowledge of intoxication because it found the duty element missing outright. Even if Victoria had strong reasons to suspect impairment, negligent entrustment (as Montana defines it) still requires superior legal entitlement to grant or withhold access.

2) Texting-duty claim fails on foreseeability and policy—without special knowledge the driver will read/respond while driving

The Court analyzed the texting theory under ordinary negligence via Restatement § 303: did Victoria realize or should she have realized her texts were likely to affect Michael’s driving in a way that created unreasonable risk? The record showed:

  • Victoria viewed Michael as a careful driver and did not know him to use his phone while driving.
  • She did not observe marijuana use that morning and testified she believed he was sober.
  • The texts were mundane and non-urgent (about a newspaper article).
  • The Estate offered no non-speculative evidence that the THC level would have made Michael observably intoxicated at home.

From these facts, the Court concluded it was not reasonably foreseeable—on this record—that sending a text would cause negligent driving. It also rejected the Estate’s proposed bright-line duty (“knowing someone is driving” is enough) as overbroad and socially disruptive, analogizing it to imposing liability on a passenger for ordinary conversation with a competent driver.

The policy-factor analysis drawn from Henricksen v. State reinforced the doctrinal outcome: moral blame was “attenuated,” the burden and community consequences of a sweeping duty were substantial, and the driver’s independent responsibility to operate safely remained primary. The Court nevertheless preserved room for liability in narrower settings (consistent with Kubert v. Best) where the sender has actual knowledge or special reason to know the recipient will read the text while driving.

C. Impact

1) Clarifying Montana’s negligent-entrustment boundary in co-ownership relationships

The Court’s application of Bahm v. Dormanen to joint vehicle ownership fortifies a bright doctrinal line: negligent entrustment in Montana is anchored to a superior legal right to permit/prohibit use, not to relationship status (spouse), cohabitation, moral influence, or physical proximity. Plaintiffs facing jointly owned instrumentalities will likely need alternative theories (e.g., direct participation, agency, statutory duties, or other affirmative negligent acts) rather than “entrustment.”

2) Montana’s emerging approach to third-party texting liability

The Opinion positions Montana with jurisdictions that reject a general duty not to text a known driver, while leaving open a narrow duty tied to the sender’s specific knowledge that the message will be viewed while driving. Practically, future litigants will focus discovery and proof on:

  • prior “texting while driving” habits known to the sender,
  • real-time cues suggesting the driver is reading/responding while moving,
  • urgency/pressure in the content (commands, insistence on immediate response), and
  • context suggesting coordinated or “concerted” activity contributing to risk.

3) The concurrence’s roadmap for different theories

Justice Shea’s concurrence highlights that liability might arise under other, unpleaded theories—particularly those involving facilitation of intoxication (echoing concepts reflected in § 27-1-710(4), MCA, and discussed in Babcock v. Casey’s Mgmt., LLC). The concurrence thus narrows the precedential reading: this case rejects the two specific duty theories presented, not all conceivable third-party-liability theories connected to impairment.

4. Complex Concepts Simplified

  • Summary judgment: A case can be decided without trial when the record shows no real dispute over facts that matter to an essential legal element, and the moving party is entitled to win as a matter of law (here under M. R. Civ. P. 56(c)(3)).
  • Duty (in negligence): A legal obligation to act with reasonable care toward others. If no duty exists, the claim fails even if harm occurred.
  • Foreseeability: Whether a reasonable person in the defendant’s position would anticipate that their conduct could cause the type of harm suffered.
  • Negligent entrustment: Liability for giving someone a dangerous instrument (like a car) when you have the legal power to permit or refuse their use and you know they are likely to use it dangerously. Montana requires a “superior if not exclusive” legal right to control access.
  • “Non-speculative record fact”: Evidence in the record (testimony, documents, admissions) that supports a claim beyond guesswork. Inferences must be reasonable, not conjectural.
  • Restatement (Second) of Torts § 303 concept: Even if you are not the driver, your conduct can be negligent if you should realize it is likely to influence another person’s actions in a way that creates unreasonable risk—but the “likely” influence must be supported by evidence and context.

5. Conclusion

Estate of Janice Graham v. Howell establishes (and reinforces) two practical Montana rules. First, negligent entrustment requires superior legal control over the vehicle; a co-owner generally cannot “entrust” a vehicle to another co-owner who already has an independent right to use it. Second, a person does not owe a general duty to third parties to refrain from texting someone merely because the sender knows the recipient is driving; duty may arise only where the sender knows or has special reason to know the driver will read/respond while driving and thereby be distracted.

The Opinion limits expansive third-party negligence theories based on ordinary communications and co-ownership relationships, while leaving open—especially through the concurrence—the possibility of liability under different, more direct facilitation or participation theories in future cases.