Frequently, insurance adjusters, plaintiffs’ personal injury lawyers and defense lawyers confuse two important concepts when a defendant driver is using someone else’s vehicle: permissive use vs. negligent entrustment. I had an adjuster confuse the two last month during settlement negotiations so I thought I would write today about the differences between these two concepts under Maryland law.
Permissive use refers to whether or not the driver of a vehicle had the permission (either express or implied) of the vehicle’s owner at the time of the crash. Whether or not the driver had the owner’s permission is an issue that affects whether there will be insurance coverage provided to the driver by the owner’s insurance company. This issue usually does not affect who should be a defendant in a claim (but may affect who has coverage for the accident).
Negligent entrustment is a cause of action that arises when one party (the entrustor/owner) is held liable for negligence because they negligently provided another driver with a dangerous instrumentality (car), and the entrusted party caused injury to a third party with that instrumentality. This cause of action is typically very hard to prove because it must be shown that a reasonable person in the owner’s position knew or should have known of the dangerous propensity of the driver such that no reasonable person would have loaned them a vehicle. Usually, the driver must have had a conviction for reckless driving or some other serious offense(s). Many plaintiffs’ attorneys make the mistake of pleading this cause of action every time the defendant driver is a minor and is using their parents’ vehicle. Just being a minor does not make the driver an automatic dangerous propensity risk.
These two concepts are very different and, nonetheless, often confused. Permissive use is an issue which is often up for debate between the driver and the owner, whereas negligent entrustment usually just involves considering what the state of mind and knowledge of the owner was at the time that he or she loaned the vehicle to the driver. Our lawyers usually find it prudent to consider each of these issues separately, since very different facts need to be considered to show each.