CASEBOLT v. COWAN

JUSTICE LOHR delivered the Opinion of the Court.

This case presents issues concerning the existence, nature, and scope of any duty owed by the owner of an automobile to a borrower of that vehicle to prevent injuries to the borrower resulting from operation of the vehicle by the borrower after consuming alcoholic beverages. These issues arise from a wrongful death action brought by the wife and children of Lindel Casebolt, who was killed in a collision when he drove a borrowed automobile eastward into a westbound lane of traffic after drinking. The plaintiffs asserted liability based on a theory of negligent entrustment. The district court granted the motion for summary judgment made by the defendants — the corporation that owned the vehicle driven by Casebolt and the corporate officer who granted Casebolt permission to drive it. The decision was based on the district court's conclusion that the defendants owed no duty to Casebolt to protect him from his own abuse of alcohol. The Colorado Court of Appeals affirmed. Casebolt v. Cowan, 809 P.2d 1080 (Colo.App. 1990). We conclude that summary judgment was improper because genuine issues of material fact must be resolved before it can be determined whether the defendants owed a duty of care to Casebolt. Consequently, we reverse the judgment of the court of appeals.

The amended complaint designates William Cowan, doing business as Milco Construction Company, as a defendant. In describing the parties, the amended complaint refers to the "Defendant Milco Construction Company," avers that it is a Colorado corporation "in suspension as of September 3, 1987," and refers to "William Cowan, d/b/a Milco Construction Company." We assume that the corporation has thereby been named as a defendant, but it is unnecessary to resolve that question definitively for the purpose of this opinion.

I.

Susan Casebolt is the widow of Lindel Casebolt. She brought this action individually and on behalf of the couple's two minor children against William Cowan individually and doing business as Milco Construction Company (Milco), seeking damages for the wrongful death of her husband. The plaintiffs asserted that the defendants breached a duty to Casebolt, Milco's employee, by failing to prevent him from driving a vehicle owned by Milco, and loaned to him by Cowan, after Cowan learned that Casebolt was consuming alcoholic beverages. The plaintiffs averred that Cowan knew that Casebolt drank alcohol to excess, was intoxicated, and would be using the vehicle for his transportation needs. After the parties engaged in some discovery, the defendants moved for summary judgment, asserting, among other things, that they had no duty to Casebolt to protect him from the consequences of his own intoxication.

The district court ruled that the defendants had no duty to protect Casebolt from his own abuse of alcohol and therefore granted summary judgment for the defendants. On appeal, the Colorado Court of Appeals affirmed. Casebolt, 809 P.2d 1080. The appellate court characterized the duty the plaintiffs sought to establish as a duty of a person entrusting a motor vehicle to another "to exercise control at any time after the original entrustment of a motor vehicle, if there is any basis upon which to infer that some harm may occur at some later time to the entrustee." Id. at 1081. Relying particularly on the "facts" that Cowan did not furnish the alcoholic beverages that ultimately intoxicated the decedent, did not observe him when he was visibly intoxicated, and was not in a position to exercise control at the time he became intoxicated, the court of appeals found no basis to impose any duty on the defendants. Id. We granted certiorari to review this determination.

The district court held that there were genuine issues of material fact concerning proximate cause and comparative negligence but that absence of duty made summary judgment appropriate notwithstanding those factual issues.

II.

We begin our analysis by summarizing familiar principles that govern resolution of motions for summary judgment, setting forth the pertinent facts that are established by the record, and noting the relevant facts that remain in dispute.

A.

Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo. 1988); United States v. Jesse, 744 P.2d 491, 503 (Colo. 1987). In determining whether summary judgment is proper, the nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party. E.g., Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo. 1991); Tapley v. Golden Big O Tires, 676 P.2d 676, 678 (Colo. 1983); see C.R.C.P. 56(c). A court must consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," in determining whether to grant a motion for summary judgment. C.R.C.P. 56(c). As we have often observed, summary judgment is a drastic remedy, to be granted only when there is a clear showing that the controlling standards have been met. E.g., Mancuso, 818 P.2d at 736; Churchey, 759 P.2d at 1339-40.

B.

The record demonstrates that there is no genuine issue as to the existence of any of the facts that we now set forth, all pertaining to the times of the accident resulting in Casebolt's death and the events leading up to it. Milco Construction Company was a Colorado corporation, and William Cowan was its president. Casebolt was employed by Milco as a construction worker. On the evening of July 16, 1987, Casebolt, who lived in the Denver metropolitan area, asked Cowan for permission to drive a car owned by Milco from Denver to the site of a Milco construction project in Idaho Springs and back so that he could work on the project on July 17. Cowan granted permission. Casebolt drove the Milco vehicle to Idaho Springs on July 17 and worked until the project was completed about noon. Cowan was present. After the job was finished, Casebolt and the other workers consumed some beer at the job site. Cowan acknowledged that Casebolt had one beer at that time. Cowan, Casebolt, and other Milco workers then went to lunch in Idaho Springs, and Casebolt drank a beer with lunch. After eating, Casebolt went with some of his luncheon companions to the bar area of the restaurant. The men told Cowan that they were going to have a beer after lunch and asked him to join them. Cowan declined and left the restaurant. He stated in his affidavit that he observed nothing about Casebolt's behavior to indicate he was intoxicated at that time. Although Cowan assumed Casebolt would drive the Milco car back to his home, Cowan did not suggest that Casebolt stop drinking and took no action to revoke or condition his permission to use the car. Cowan did not see Casebolt again. At about 6:30 p.m. Casebolt left Idaho Springs and drove the Milco vehicle eastward into a westbound lane of highway traffic. A collision ensued, and Casebolt later died of the injuries he sustained in the accident. The accident was caused by Casebolt's intoxication.

Other facts are in dispute. Cowan had some knowledge that Casebolt had experienced difficulties when consuming alcoholic beverages, but the extent of that knowledge is disputed. Ned Slocum, a coworker of Casebolt on some Milco construction projects, executed an affidavit relating an incident in 1986 when he, Cowan, Casebolt, and another went to a bar, Casebolt became "obnoxious, rowdy, and drunk" after consuming several beers, and Slocum took Casebolt home because he had too much to drink. In his affidavit, Slocum stated that in April 1987, when working for Cowan, the latter asked about that 1986 occasion and Slocum said that Casebolt "had problems with handling his alcohol and that when [Casebolt] drank, he became uncontrollable." In response to a question from Cowan, Slocum said that scratches Casebolt had received on that occasion resulted from a physical altercation between Slocum and Casebolt, because "that is how [Casebolt] acted when he was drinking." Slocum's affidavit further stated that

"[d]uring this conversation, Mr. Cowan and I agreed that [Casebolt] could not handle his liquor and that, even with a small amount of alcohol, [Casebolt's] personality would obviously change. Mr. Cowan said that, after a few beers, [Casebolt] was a `wild man.' During this conversation, Mr. Cowan told Randy Harp and other employees not to take [Casebolt] drinking because he drank excessively and became uncontrollable."

In Cowan's deposition, however, except for information gleaned on the occasion in 1986 described by Slocum, Cowan denied any knowledge prior to the accident that Casebolt was particularly susceptible to becoming intoxicated upon consuming alcoholic beverages. Cowan testified that he did have a conversation with Slocum about a fight Casebolt had engaged in after drinking, but Cowan said this conversation took place on the day of Casebolt's funeral. Thus, Casebolt's drinking habits and behavior, the extent of Cowan's knowledge of such matters, and particularly Cowan's knowledge of any propensity of Casebolt to drink and drive are not developed in the record. The amount of beer consumed by Casebolt before, during, and after lunch while Cowan was present is also not clearly established by the record, and the available evidence is susceptible of various inferences.

As earlier noted, the defendants concede that Casebolt consumed at least certain specified amounts of beer.

III. A.

The amended complaint asserts a claim in negligence under a theory of negligent entrustment. The district court applied general negligence principles in arriving at the conclusion that the defendants had no duty to Casebolt. The court of appeals followed a negligent entrustment analysis and reached the same conclusion. Casebolt, 809 P.2d at 1081. In their briefs on certiorari review, the plaintiffs rely on negligent entrustment to support reversal of summary judgment.

B.

We begin our analysis by considering the nature and scope of the doctrine of negligent entrustment. Negligent entrustment is a part of the general law governing liability for negligence. As the Michigan Supreme Court observed in Moning v. Alfono, the doctrine of negligent entrustment is "one of the many specific rules concerning particular conduct that have evolved in the application of the general standard of care." 254 N.W.2d 759, 767 (Mich. 1977). Thus, it is instructive to review general negligence principles in order to establish the context for recognition of the doctrine of negligent entrustment and the relationship of negligent entrustment to broader principles of liability for negligence.

The elements of a claim of negligence consist of the following: a duty owed by the defendant to the plaintiff, a breach of that duty, injury to the plaintiff, and a proximate cause relationship between the breach and the injury. E.g., Leake v. Cain, 720 P.2d 152, 155 (Colo. 1986); Franklin v. Wilson, 161 Colo. 334, 336, 422 P.2d 51, 51 (1966). The standard of care that must be met in order to satisfy a recognized duty and thereby avoid breach is that of reasonable care in light of the apparent risk. Metropolitan Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 318 (Colo. 1980).

The initial question of whether a defendant owes a plaintiff a duty to act or refrain from acting in order to avoid injury is a question of law to be determined by the court. E.g., Smith v. City and County of Denver, 726 P.2d 1125, 1127 (Colo. 1986); Metropolitan Gas Repair, 621 P.2d at 317. In determining whether a duty should be recognized, a court must consider many factors, "including, for example, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor." Smith, 726 P.2d at 1127; accord, e.g., Observatory Corp. v. Daly, 780 P.2d 462, 466 (Colo. 1989); University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987). The foregoing list of factors is not exclusive, no single factor controls, "and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards — whether reasonable persons would recognize a duty and agree that it exists." Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo. 1987). Thus, "[a] court's conclusion that a duty does or does not exist is `an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.'" Whitlock, 744 P.2d at 57 (quoting W. Keeton, D. Dobbs, R. Keeton D. Owen, Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed. 1984) (hereinafter " Prosser")) (bracketed material added in Whitlock).

The doctrine of negligent entrustment provides a framework for resolution of the issue of duty, and also identifies criteria for assessing exercise of reasonable care in light of the apparent risk under particular circumstances. The negligent entrustment doctrine in its general form is set forth in section 308 of the Restatement (Second) of Torts (1965) (hereinafter " Restatement") as follows:

"It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others."

See also Restatement §§ 282, 308 (defining negligence as conduct that falls below the legal standard of care (§ 282) and specifying that particular conduct often described as negligent entrustment constitutes negligence (§ 308)).

The Colorado Court of Appeals explicitly adopted the doctrine of negligent entrustment as a theory of liability in Hasegawa v. Day, 684 P.2d 936, 939 (Colo.App. 1983) (citing and quoting § 308). In several cases decided since Hasegawa, the court of appeals has applied negligent entrustment analysis. Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 238-39 (Colo.App. 1988); Lahey v. Benjou, 759 P.2d 855, 857 (Colo.App. 1988); Butcher v. Cordova, 728 P.2d 388, 389-91 (Colo.App. 1986); Baker v. Bratrsovsky, 689 P.2d 722, 723-24 (Colo.App. 1984); cf. United Fire Casualty Co. v. Day, 657 P.2d 981, 982 n. 1 (Colo.App. 1982) (negligent entrustment doctrine recognized but not part of the analysis in insurance policy coverage case), overruled on other grounds by Northern Ins. Co. v. Ekstrom, 784 P.2d 320 (Colo. 1989). The acceptance of negligent entrustment analysis by the Colorado courts was forecast by the decision of the Tenth Circuit Court of Appeals in Douglass v. Hartford Ins. Co., 602 F.2d 934 (10th Cir. 1979), in which that court predicted that Colorado would recognize a complaint based on negligent entrustment. Id. at 936-37.

In Hasegawa, a minor child who had been adjudicated delinquent and committed to the custody of the Colorado Department of Institutions was released to his parents on a "leave of absence." Under the conditions of the minor's release, his father had the primary right and responsibility to control the son, and the son had the duty and obligation to follow his father's directions. The father provided money to the son for the purchase of an automobile. The evidence was in conflict whether this represented repayment of a loan, but the funds were under the parents' control. Title to the car was taken in the son's name, and he paid the expenses of operation and maintenance. The father's liability policy provided insurance coverage. The son had an extensive juvenile record, including offenses involving abuse of drugs and alcohol. The Department of Institutions had evaluated him as impulsive, anti-social, and possibly a sociopath. The son drove the car when intoxicated, collided with another vehicle, and caused injuries to a third party, who sought recovery against the parents under a theory of negligent entrustment. The district court granted summary judgment for the defendants. The court of appeals reversed. It cited § 308 of the Restatement and set forth the elements of a claim for negligent entrustment as follows: "The elements of negligent entrustment as applicable here are: 1) a supplier permitting a third party to use a thing or engage in an activity; 2) which is under the control of the supplier; and 3) the supplier giving such permission either knowing or having reason to know that the third party intends or is likely to use the thing in such a manner as to create an unreasonable risk of harm to others." Hasegawa, 684 P.2d at 939. The court of appeals held that there was sufficient evidence to create questions of fact whether the father had actual control of the vehicle, whether the son drove on the occasion of the accident with the tacit knowledge and approval of the father, and whether the parents knew or had reason to know that their son was likely to use the automobile in such a manner as to create an unreasonable risk of harm to others. The statement of the elements of the claim in Hasegawa creates some ambiguity concerning whether control must continue to the time of the act of the entrustee causing the injury. In this opinion we hold that it need not. See part III C(1), below.

We have not previously had occasion to consider directly whether the negligent entrustment doctrine is part of the law of this state. In Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo. 1984), however, we acknowledged in passing that "Colorado courts recognize negligent entrustment as an actionable claim," citing Hasegawa. Id. at 1140 n. 3. Moreover, in Dickens v. Barnham, 69 Colo. 349, 194 P. 356 (1920), we recognized a tort in circumstances arguably fitting the doctrine of negligent entrustment, although we did not use the term "negligent entrustment" in analyzing the case. See Douglass, 602 F.2d at 937, and Hasegawa, 684 P.2d at 939, both relying in part on Dickens in recognizing the negligent entrustment doctrine. We now confirm that the doctrine of negligent entrustment is part of the law of negligence in this state. Section 308 of the Restatement provides guidance for our use in determining the applicability and scope of the doctrine.

See Boyd v. Close, 82 Colo. 150, 155, 257 P. 1079, 1081 (1927) (indicating liability for relinquishing control of vehicle to intoxicated person). But see Otoupalik v. Phelps, 73 Colo. 433, 216 P. 541 (1923) (sustaining demurrer to complaint alleging negligence in lending automobile to person lender knew to be a reckless driver).

The plaintiffs rely as well on section 390 of the Restatement, concerning the liability of suppliers of chattels, as a further refinement of the negligent entrustment theory. Section 390 provides:

"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."

Comment b to section 390 describes this rule as a special application of the rule stated in section 308. Although the court of appeals has "adopted" section 390 in an unpublished case, Roberts v. Niswonger, 87CA0881 (Colo.App. Apr. 20, 1989), we have never had occasion to consider whether section 390 correctly reflects the common law of this state.

Section 390 establishes a framework for examining the entrustment of a vehicle to an individual who presents an unreasonable risk of drinking and driving, based either on known propensity or intoxication on the occasion of the entrustment. The framers of section 390 specifically envisioned its application to cases of intoxicated entrustees. Illustration 7 states:

"A, who makes a business of letting out boats for hire, rents his boat to B and C, who are obviously so intoxicated as to make it likely that they will mismanage the boat so as to capsize it or to collide with other boats. B and C by their drunken mismanagement collide with the boat of D, upsetting both boats. B, C, and D are drowned. A is subject to liability to the estates of B, C, and D under the death statute, although the estates of B and C may also be liable for the death of D."

Other jurisdictions apply section 390 to instances where the entrustee's incompetence to operate a vehicle centers on or includes the consumption of alcohol. E.g., Blake v. Moore, 208 Cal.Rptr. 703, 707-08 (Cal.App. 1984); Gorday v. Faris, 523 So.2d 1215, 1219 (Fla.App. 1988); Snowhite v. State, 221 A.2d 342, 355 (Md. 1966); Lombardo v. Hoag, 566 A.2d 1185, 1190 n. 4 (N.J.Super. L. 1989); Cameron v. Downs, 650 P.2d 260, 262 (Wash.App. 1982). This accords with the general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others.

Thus, we believe section 390 provides a basis for resolving the issues of duty (whether a supplier of a chattel owes any obligation to a person incurring physical harm from the use of the chattel by the person to whom it is supplied) and the specific standard of care (the criteria for assessing reasonable care in light of apparent risk) in the context of supplying chattels for the use of others. These two issues are inextricably intertwined in section 390. Being mindful of the policy considerations relevant to imposition of duty, see, e.g., Smith, 726 P.2d at 1127, we are satisfied that section 390 — as a particular application of the more general rule of section 308 — provides a useful analytical framework for addressing these issues in the present case.

In electing to utilize sections 308 and 390 of the Restatement to guide us in our analysis, we follow a path already taken by a number of other states that have employed, approved, or adopted those Restatement rules as part of their negligence jurisprudence. See Keller v. Kiedinger, 389 So.2d 129, 131-33 (Ala. 1980) (applying § 390); Blake, 208 Cal.Rptr. at 707-08 (applying § 390); King v. Petefish, 541 N.E.2d 847, 850 (Ill.App. 1989) (recognizing negligent entrustment under §§ 308 and 390); Kahlenberg v. Goldstein, 431 A.2d 76, 83 (Md. 1981) (applying § 390); Moning, 254 N.W.2d at 767 (citing § 390 with approval); Axelson v. Williamson, 324 N.W.2d 241, 243-44 (Minn. 1982) (citing § 390 with approval); Bahm v. Dormanen, 543 P.2d 379, 381-82 (Mont. 1975) (analyzing negligent entrustment case under §§ 308 and 390); Lombardo, 566 A.2d at 1186 (citing § 308 with approval); McCarson v. Foreman, 692 P.2d 537, 541-42 (N.M.App. 1984) (applying § 308); Robinson v. Reed-Prentice Division, 403 N.E.2d 440, 446 (N.Y. 1980) (citing § 390 with approval); First Trust Co. v. Scheels Hardware, 429 N.W.2d 5, 8-9 (N.D. 1988) (approving § 390 as appropriately summarizing law); Vince v. Wilson, 561 A.2d 103, 104-05 (Vt. 1989) (citing § 390 with approval); Bernethy v. Walt Failor's, Inc., 653 P.2d 280, 282-83 (Wash. 1982) (adopting § 390); Huggins v. Tri-County Bonding Co., 337 S.E.2d 12, 17 (W.Va. 1985) (citing § 308 with approval); Bankert v. Threshermen's Mutual Ins. Co., 329 N.W.2d 150, 152-53 (Wis. 1983) (applying § 308 and common law negligence); cf. Flieger v. Barcia, 674 P.2d 299, 301 (Alaska 1983) (negligent entrustment recognized under common law); Pugmire Lincoln Mercury, Inc. v. Sorrells, 236 S.E.2d 113, 114 (Ga. 1977) (recognizing negligent entrustment as theory of recovery); Lopez v. Langer, 761 P.2d 1225, 1227-29 (Idaho 1988) (applying negligent entrustment principles under common law); McCart v. Muir, 641 P.2d 384, 387-88 (Kan. 1982) (applying negligent entrustment under common law); Green v. Texas Elec. Wholesalers, Inc., 651 S.W.2d 4, 6-7 (Texas App. 1982) (applying negligent entrustment as common law doctrine).

We believe it would be misleading to use the word "adopt" as applied to our reliance on the Restatement rules. We consider those rules appropriate for analysis of the present case without holding that they would necessarily apply to all fact situations that could be construed to come within their ambit.

We emphasize, however, that our reliance on sections 308 and 390 of the Restatement today is not meant to impose a rigid, formalistic analysis on entrustment cases. Although the very purpose of the doctrine of negligent entrustment is to establish criteria by which to resolve the difficult issues of duty and breach when negligent entrustment elements are established, the Restatement anticipates some fluidity through its employment of the term "unreasonable risk" in both section 308 and section 390. Only if the risk of harm resulting from the entrustment can be characterized as "unreasonable" are the standards of sections 308 and 390 satisfied. See Butcher, 728 P.2d at 391 (evaluating "unreasonable risk" under § 308).

C.

We now apply the negligent entrustment principles in sections 308 and 390 to the facts of this case to determine whether summary judgment was proper. It is undisputed that Cowan supplied the Milco vehicle to Casebolt. Under section 390 it is clear as well that an entrustee can recover for physical harm to himself resulting from a negligent entrustment. See n. 7 at pages 17-18 of this opinion. The rights of the plaintiffs to recover are derivative under Casebolt. § 13-21-202, 6A C.R.S. (1987).

The court of appeals did not employ § 390 in its analysis. Instead, it relied on Hasegawa v. Day, 684 P.2d 936 (Colo.App. 1983), and Butcher v. Cordova, 728 P.2d 388 (Colo.App. 1986), which are based upon the general principles of negligent entrustment set forth in § 308 of the Restatement. The court declined to extend the negligent entrustment rule of § 308 to include protection against harm to the entrustee. Under § 390, however, an entrustee can recover for damages resulting from negligent entrustment. § 390 expressly recognizes that one who negligently supplies a chattel for the use of another likely to use the chattel in a manner involving unreasonable risk of physical harm "to himself and others . . . is subject to liability for physical harm resulting to them." Illustration 7 to § 390, quoted at page 14 of this opinion, confirms that the drafters intended to encompass the entrustee within the group to whom the duty is owed.

Two legal issues and one factual issue remain to be resolved in order to decide whether summary judgment was appropriate. The first issue relates to Cowan's right and ability to control the use of the vehicle at the relevant time. The second is whether public policy precludes recognition of liability to Casebolt when his own voluntary intoxication caused the accident that resulted in his death. The third is whether there is a genuine issue of material fact whether Cowan had reason to know at the relevant time that Casebolt was likely to drive while intoxicated and thereby create an unreasonable risk of physical harm to himself.

1.

A question central to the applicability of negligent entrustment is whether the supplier must have the right and ability to exercise control at the time of the negligent act of the entrustee resulting in injury or whether control at the time the chattel is supplied is sufficient. Cases from other jurisdictions measure control at the time the chattel is supplied, the initial moment of entrustment. E.g., Kahlenberg, 431 A.2d at 83-84; Vince, 561 A.2d at 105; Huggins, 337 S.E.2d at 17; Green, 651 S.W.2d at 7.

As the Maryland court observed in Kahlenberg, in a donor-donee context, the negligence of the supplier consists of furnishing the chattel with the requisite knowledge. "[S]ince a donor would ordinarily relinquish any right to permit and power to prohibit the use of the chattel upon its delivery to the donee and consummation of the gift, the right to permit and the power to prohibit the use of the chattel, after the transfer and at the time of the injury, would not ordinarily be a sine qua non of liability." 431 A.2d at 83. The Kahlenberg approach squares with traditional understanding of the principles underlying negligent entrustment. "`Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle . . . .'" Mettelka v. Superior Court, 219 Cal.Rptr. 697, 698 (Cal.App. 1985) (quoting 5A Am. Jur. Automobiles and Highway Traffic § 580, pp. 590-91); accord, e.g., Bruck v. Jim Walter Corp., 470 So.2d 1141, 1143 (Ala. 1985); Brady v. B B Ice Co., 45 S.W.2d 1051, 1053 (Ky. 1931); Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481, 486 (Mo.App. 1972); Williamson v. Eclipse Motor Lines, Inc., 62 N.E.2d 339, 341 (Ohio 1945); see also 7A Am. Jur. 2d Automobiles Highway Traffic § 643, p. 872; J. Lee B. Lindahl, Modern Tort Law, Liability Litigation § 33.01 (1990 Supp. 1991).

We are persuaded by the approach of other jurisdictions that we need look no further than the initial point of entrustment to determine whether a supplier acted negligently. Comments in the Colorado Court of Appeals' decisions in Hasegawa and Hilberg suggest that a subsequent ability to control the user of the chattel or the manner in which the chattel is used represents an essential element of the negligent entrustment theory. Hilberg, 761 P.2d at 238; Hasegawa, 684 P.2d at 939. However, for the reasons outlined above, we reject subsequent control as an essential element of negligent entrustment. To the extent that Hasegawa and Hilberg require subsequent control, we overrule them. In the present case, however, the plaintiffs do not assert that Cowan was negligent when he initially permitted Casebolt to use the vehicle. Instead, they contend that a separate duty may arise based on a subsequent ability to control the automobile.

Hasegawa refers to the parents' day-to-day control over their son as indicative "that mother and father permitted the son to use the automobile and that its use was under their actual control." 684 P.2d at 939. Hilberg then cites Hasegawa in support of a statement that for a negligent entrustment action the "supplier must also have some ability subsequently to control the user or the manner in which the instrumentality is used." 761 P.2d at 238.

As a result, supply and control, the first two elements of a negligent entrustment claim as set forth in Hasegawa, 684 P.2d at 939, can better be compressed into one, incorporating the standards discussed in this opinion. The trial courts should modify the Hasegawa elements accordingly, and should make clear that control is to be measured at the time of the entrustment.

According to the plaintiffs, if Cowan acquired information that Casebolt was likely to use the vehicle in a manner involving unreasonable risk of physical harm to himself or others at a time when Cowan had the right and ability to exercise control, Cowan had a duty to take reasonable action to prevent continuation of the entrustment. The rationale underlying imposition of negligent entrustment liability on suppliers of chattels is that one has a duty not to supply a chattel to another who is likely to misuse it in a manner causing unreasonable risk of physical harm to the entrustee or others. See Restatement § 390. The same logic supports a duty to take reasonable action 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. We conclude that such a duty is encompassed within the doctrine of negligent entrustment.

In some entrustment situations, the entrustor may not have retained such a legal right by the terms of the initial entrustment.

Applying the foregoing reasoning to the facts of this case, we conclude that unless precluded by policy reasons, Cowan had a duty to take reasonable action to terminate the entrustment before leaving the Idaho Springs restaurant if by that time he possessed knowledge that Casebolt was likely to use the vehicle in a manner involving unreasonable risk of physical harm to himself or others.

2.

We now address whether public policy considerations preclude recognition of any duty by Cowan to Casebolt, under negligent entrustment doctrine or otherwise. The district court adopted standard duty analysis in reaching the conclusion that Cowan owed no duty to Casebolt because "Colorado law does not recognize a duty on behalf of Defendants to protect someone from their own abuse of alcohol." The district court considered the policy factors of nature of the risk and foreseeability and likelihood of injury, the magnitude of the burden and the consequence of imposing the duty on the defendants, the social utility of their conduct, and the culpability or moral blame associated with lending the automobile. See, e.g., Whitlock, 744 P.2d at 57; Smith, 726 P.2d at 1127. In rejecting recognition of a duty, the district court held that Cowan had no duty because under contemporary standards "individuals must accept responsibility for their own actions."

The court of appeals also referred to Whitlock. Without detailed analysis, the court concluded that no duty arose because Cowan did not supply the alcoholic beverages and was not in a position to exercise control at the time Casebolt became intoxicated. Casebolt, 809 P.2d at 1081.

We have recognized in our initial discussion of sections 308 and 390 of the Restatement that although the negligent entrustment doctrine is intended to reflect a conclusion that a duty exists under the specific and limited circumstances for which those sections provide guidance, there still remains room for consideration of policy factors in individual cases. Cf. Butcher, 728 P.2d at 389-90 (incorporating evaluation of policy considerations in determining existence of duty under a negligent entrustment claim analyzed under § 308). We based this view on the fact that both sections apply to the creation of unreasonable risks and that the reasonableness of a risk may depend to a degree upon policy considerations. As we first recognized in Smith, relevant policy factors in duty analysis include, for example,

"the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor."

Id., 726 P.2d at 1127. These factors are illustrative and not exclusive. Id.; Whitlock, 744 P.2d at 57.

Consideration of the relevant policy factors persuades us that entrustment of an automobile to one who is likely to operate it under the influence of intoxicating liquor soon after obtaining possession of the vehicle presents an unreasonable risk of physical harm to the entrustee and others. Certainly, the risk to an inebriated driver and the foreseeability and likelihood that such a driver will cause injury to himself by operation of a motor vehicle are apparent. The social utility of the borrower's conduct may vary depending upon the purpose for the use of the vehicle. Where, as here, that purpose is simply transportation to the borrower's home, the social value of such a mission pales in relation to the magnitude of the risk. The burden upon the car owner to take reasonable steps to guard against injury to the borrower is not great. Although it is unnecessary to decide what is reasonably required of the owner — a determination that may vary with the circumstances — it would not be burdensome to take the minimal steps of revoking permission to use the vehicle and requesting the return of the keys. We also are unable to perceive any untoward consequences that could result from imposition of such a burden on the vehicle owner.

We recognize that voluntary intoxication is socially undesirable conduct and that individual responsibility to refrain from such conduct should be promoted. These considerations, however, cannot be permitted to obscure the fact that a vehicle owner who has the right and ability to control the use of the vehicle and takes no action to prevent the continued use of the vehicle by a borrower who the owner knows is likely to operate the vehicle while intoxicated is also engaged in morally reprehensible behavior that should be discouraged. Comparative negligence provides the appropriate framework for examining any negligence on the part of the individual who drives after consuming alcoholic beverages. See Lyons v. Nasby, 770 P.2d 1250 (Colo. 1989) (employing an analysis paralleling that set forth in this paragraph in holding that a tavern owner owes a duty of care to an intoxicated person not to serve that person alcoholic beverages). In similar situations, other courts have held that an entrustee is entitled to a comparative fault trial despite his own negligence in becoming intoxicated. Blake, 208 Cal.Rptr. at 708; Gorday, 523 So.2d at 1216-17; King, 541 N.E.2d at 852-53.

Subsequent to the occurrence of the operative facts upon which our decision in Lyons was based, but prior to the issuance of that decision, the Colorado general assembly enacted statutes narrowly limiting the circumstances in which a commercial vendor or a social host will be subject to liability for injuries caused by an intoxicated person after being served alcoholic beverages by the commercial vendor or social host. See §§ 12-46-112.5 and 12-47-128.5, 5B C.R.S. (1991). These statutes do not apply to entrusting a motor vehicle to an intoxicated person.

It is important to recognize that contributory negligence is not a bar to recovery in a negligence action in Colorado. § 13-21-111, 6A C.R.S. (1987). The legislature has provided: "Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made." § 13-21-111(1).

We conclude from our review of the relevant policy considerations that the risk presented by the entrustment, or the continuation of an entrustment, of a vehicle to a person likely to drive it while inebriated is an unreasonable one under section 390 of the Restatement.

3.

Based on the foregoing analysis, we must now determine whether summary judgment was proper. We conclude that it was not, because the applicability of negligent entrustment as analyzed under the framework of section 390 of the Restatement depends on resolution of genuine issues of material fact.

In order to prevail, the plaintiffs must establish that Cowan knew or had reason to know that Casebolt would be likely to use the vehicle in a manner involving unreasonable risk of physical harm to himself. See Restatement § 390. This requires determination of such facts as whether Casebolt had a pattern of continuing to drink once he started, whether he had a propensity to drink and drive, the amount of alcoholic beverages Casebolt had consumed before Cowan left the restaurant, and the extent of Cowan's knowledge of all these matters at that time. The affidavit of Ned Slocum indicates that Cowan had information concerning Casebolt's drinking habits and behavior through some limited personal observation and through a conversation with Slocum. According to Slocum, Cowan expressed the opinion that after a few beers Casebolt was a "wild man" and that he had directed other employees not to take Casebolt drinking because he drank excessively and became uncontrollable. Although Cowan contradicted these statements, the record presents a genuine issue as to their truth. Cowan also knew that Casebolt lived in the Denver metropolitan area and that his reason for borrowing the Milco vehicle included making a return trip home. Summary judgment is a drastic remedy and is appropriate only in the clearest of cases. E.g., Mancuso, 818 P.2d at 736; Churchey, 759 P.2d at 1339-40. Where, as here, genuine issues of material fact are in dispute, summary judgment cannot be sustained.

IV.

As the district court recognized, genuine issues of material fact exist concerning the issues of proximate cause and comparative negligence. Our own review of the record causes us to conclude that genuine issues of material fact also exist concerning the applicability of the negligent entrustment doctrine. We therefore reverse the judgment of the court of appeals and return the case to that court with directions to reverse the district court's summary judgment and to remand the case to the district court for further proceedings consistent with the views expressed in this opinion.

CHIEF JUSTICE ROVIRA dissents. JUSTICE ERICKSON dissents. JUSTICE VOLLACK dissents, and JUSTICE ERICKSON joins in the dissent.