        IN THE MISSOURI COURT OF APPEALS
                WESTERN DISTRICT
CINDY LOCKHART, ET AL.,                     )
                                            )
              Appellants,                   )
                                            )
v.                                          )       WD81952
                                            )
SUSAN CARLYLE,                              )       Opinion filed: June 25, 2019
                                            )
              Respondent.                   )

     APPEAL FROM THE CIRCUIT COURT OF JOHNSON COUNTY, MISSOURI
              THE HONORABLE WILLIAM B. COLLINS, JUDGE

                 Before Division Three: Thomas H. Newton, Presiding Judge,
                 Anthony Rex Gabbert, Judge and Edward R. Ardini, Jr., Judge

       Cindy Lockhart and Dennis Lockhart (“the Lockharts”) filed suit in the Circuit Court of

Johnson County against Susan Carlyle (“Carlyle”) alleging the wrongful death of their son, Tyler

Lockhart, based on a theory of negligent entrustment of a vehicle. The Lockharts alleged that

Carlyle, with knowledge that her adult son, Richard (Nick) Gallagher (“Gallagher”), was

incompetent to drive an automobile on the public highways due to habitual recklessness, supplied

Gallagher a vehicle that he negligently operated resulting in a crash that killed Tyler Lockhart,

who was a passenger in the vehicle. The trial court granted summary judgment in favor of Carlyle.

The Lockharts appeal. We affirm.
                                  I.     Factual and Procedural Background

           Gallagher is Carlyle’s adult son. After graduating from high school, Gallagher moved from

Missouri to Texas to help care for his grandparents.1 While living in Texas, Gallagher was arrested

for drug possession and domestic violence and spent time in both jail and rehabilitation. Gallagher

lived in Texas for five or six years before moving back to Missouri to live with Carlyle.

           Since his return to Missouri, Carlyle has furnished Gallagher with a place to live, food,

utilities, and a cell phone. Gallagher has been employed only sparingly during this period having

worked for Carlyle Van Lines for about a month in addition to performing other miscellaneous

jobs such as snow removal and car repair.

           Gallagher has been charged with numerous criminal offenses since his return to Missouri,

several relating to the operation of a motor vehicle.2 In relation to these charges, Carlyle has

provided the financial means for Gallagher to retain legal counsel, post bond, and satisfy fines and

court costs.

            On January 8, 2016, Gallagher travelled to Kansas with Carlyle and Tyler Lockhart to

purchase a 2003 Acura. A bill of sale reflects that the Acura was sold to Gallagher for $1,500.00.3

A few days later, the vehicle was insured through a policy with American Standard Insurance

Company of Wisconsin paid for by Carlyle that listed both Carlyle and Gallagher as the insureds.

Gallagher registered the vehicle in his name, and only his name appeared on the title.


1
    Gallagher’s father also lived in Texas at the time.
2
 Gallagher has been charged and convicted of operating a motor vehicle without proper registration and tampering
with a motor vehicle. In addition, Gallagher has been charged with resisting arrest, driving while his driver’s license
was revoked, tampering with a motor vehicle, burglary, and possession of burglary tools.
3
  The parties dispute the source of the funds used to purchase the 2003 Acura. Carlyle claims that Gallagher used his
own money to make the purchase. The Lockharts, relying primarily on inferences drawn from Gallagher’s financial
dependence on Carlyle, assert that Carlyle provided the necessary funds. We are directed to view the record in the
light most favorable to the Lockharts and will assume, for purposes of our analysis, that Carlyle provided the funds
for the purchase of the Acura.

                                                          2
       On March 8, 2016, Gallagher had a court appearance scheduled in Grundy County,

Missouri. Gallagher departed Carlyle’s home for Grundy County in the Acura accompanied by

Tyler Lockhart. Shortly thereafter, at approximately 7:00 a.m., the Acura was involved in an

accident. According to the Highway Patrol’s Incident Report, the vehicle was traveling northbound

on Route 23 in an unincorporated area of Johnson County at an estimated speed of at least 87 miles

per hour when Gallagher lost control and ran off the east side of the road. The vehicle flipped

several times ejecting both Gallagher and Tyler Lockhart. Tyler Lockhart was killed. Gallagher

was injured, but survived.

       The Lockharts filed a Petition for Wrongful Death against Gallagher on April 12, 2016.

The Lockharts settled their claim against Gallagher and filed an amended petition naming Carlyle

as the defendant. The amended petition alleged that Carlyle was negligent in supplying Gallagher

with the Acura based on Gallagher’s history of reckless driving. Carlyle moved for summary

judgment, arguing that the uncontroverted facts showed that she did not own or have control over

the use of the Acura and thus could not be deemed to have entrusted it to Gallagher as a matter of

law. The trial court granted summary judgment. The Lockharts appeal.

                                 II.    Standard of Review

       “Whether the circuit court properly entered summary judgment ‘is purely an issue of law

which th[e c]ourt reviews de novo.’” Smock v. Associated Elec. Coop., Inc., 567 S.W.3d 211, 217

(Mo. App. W.D. 2018) (quoting Hill v. Ford Motor Co., 277 S.W.3d 659, 664 (Mo. banc 2009)

(additional citation omitted)). “When considering an appeal from a summary judgment, we review

the record in the light most favorable to the party against whom judgment was entered, and we

afford that party the benefit of all reasonable inferences.” Fouts v. Regency North Acquisition,

LLC, 569 S.W.3d 463, 465-66 (Mo. App. W.D. 2018) (citations omitted). A defending party can



                                                3
demonstrate entitlement to summary judgment by exhibiting facts negating any of the plaintiff’s

necessary elements. Parr v. Breeden, 489 S.W.3d 774, 778 (Mo. banc 2016) (citation omitted).

“[W]e will affirm the grant of a summary judgment where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law.” Fouts, 569 S.W.3d at 466

(citations omitted).

                                      III.    Discussion

       The Lockharts allege that the trial court erred in granting summary judgment, asserting that

“someone who controls whether a habitually reckless driver owns or drives a car has sufficient

control over the car to be negligent for supplying the car to that driver.” The Lockharts argue that

Carlyle’s conduct in “paying for the car, acquiring insurance for the car, and insisting that

[Gallagher] drive a low-value car” provided a sufficient evidentiary basis upon which a fact-finder

could conclude that Carlyle entrusted the 2003 Acura to Gallagher. Carlyle counters that she did

not own or otherwise possess the authority to exert control over the use of the vehicle and thus

cannot be deemed to have entrusted it to Gallagher.

       “Negligent entrustment is a variant of the common law tort of negligence.” Hays v. Royer,

384 S.W.3d 330, 333 (Mo. App. W.D. 2012). Under a theory of negligent entrustment, a plaintiff

must prove:

       (1) the entrustee was incompetent by reason of age, inexperience, habitual
       recklessness or otherwise; (2) the entrustor knew or had reason to know of the
       entrustee’s incompetence; (3) there was entrustment of the chattel; and (4) the
       negligence of the entrustor concurred with the conduct of the entrustee to cause the
       plaintiff’s injuries.

Id. (quoting Hallquist v. Smith, 189 S.W.3d 173, 175-76 (Mo. App. E.D. 2006)).

       The negligent entrustment doctrine is patterned after two sections of the Restatement

(Second) of Torts: sections 308 and 390. See Hays, 384 S.W.3d at 335, 337. Section 308 states:



                                                 4
        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.

Restatement (Second) of Torts § 308 (1965). Comment a of this section notes that “[t]he words

‘under the control of the actor’ are used to indicate that the third person is entitled to possess or

use the thing or engage in the activity only by the consent of the actor, and that the actor has reason

to believe that by withholding consent he can prevent the third person from using the thing or

engaging in the activity.” Restatement (Second) of Torts § 308 cmt. a.

        Section 390 is a “special application” of section 308. Restatement (Second) of Torts § 390

cmt. b. Section 390 states:

        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.

Restatement (Second) of Torts, § 390.

        Carlyle’s motion for summary judgment specifically focused on negating the third element

of a negligent entrustment cause of action by arguing there had been no “entrustment” of the 2003

Acura by Carlyle to Gallagher.4

        The chattel at the heart of this case is a 2003 Acura that was involved in the tragic accident

that took the life of Tyler Lockhart. As part of their negligent entrustment claim, the Lockharts

must establish that Carlyle entrusted the Acura to Gallagher. In this regard, we are principally




4
 When the trial court’s judgment does not set forth its reasoning, it “is presumed to have based its decision on the
grounds specified in respondents’ motion[.]” Cent. Mo. Elec. Coop. v. Balke, 119 S.W.3d 627, 635 (Mo. App. W.D.
2003) (citation omitted). Because we presume that the trial court granted summary judgment based on the legal
deficiency of the third element, we address only whether Carlyle can be considered to have entrusted the Acura to
Gallagher as a matter of law.


                                                         5
focused on the level of dominion enjoyed by Carlyle over the vehicle—either through an

ownership interest in the vehicle or by her authority to control its use. It is undisputed that Carlyle

did not legally own the vehicle, as only Gallagher’s name appeared on the vehicle’s title.

Consequently, in order to defeat summary judgment, the Lockharts were required to bring forward

evidence that, if believed by the fact finder, would establish that Carlyle had a level of control over

the Acura that was of a sufficient nature to support a finding that she entrusted it to Gallagher.

After a review of the record before us, we affirm the trial court’s grant of summary judgment in

favor of Carlyle.

       Due to Carlyle’s lack of an ownership interest in the Acura, this case differs from the

typical negligent entrustment case wherein an individual permits use of their property by a third

party while continuing to maintain control over the chattel. As a result, the Lockharts

understandably focus on the circumstances attendant to Gallagher’s acquisition of the Acura with

particular emphasis on the financial role played by Carlyle in that purchase and, relatedly,

Gallagher’s general financial dependence on Carlyle. Undoubtedly, Carlyle’s financial assistance

was critical to Gallagher’s purchase of the Acura. Nevertheless, Carlyle was neither the buyer nor

the seller of the Acura and the record contains no basis from which we can discern that she

possessed any legal rights or control over the vehicle either before, or upon completion, of the

sales transaction. Instead, Carlyle served as a facilitator of the transaction by providing the

financial means for Gallagher to complete the purchase. In this regard, the Lockharts have directed

us to no Missouri authority, and we have independently found none, holding that an individual or

entity—be it a parent, sibling, friend, or bank—that simply provides the funding necessary to




                                                  6
complete a purchase is thereby deemed to have entrusted the chattel involved in the transaction to

the third-party purchaser.5

         The Lockharts seek support from our Supreme Court’s recent decision in Delana v. CED

Sales, Inc., 486 S.W.3d 316, 324 (Mo. banc 2016),6 in which the Court announced that a negligent

entrustment claim can be brought against a seller of chattel. Delana constituted a significant

departure from prior Missouri precedent7 that had consistently held that a seller cannot be liable

under a negligent entrustment theory because a seller permanently relinquishes any control over

the chattel upon completion of the transaction. While Delana held that “negligent entrustment

liability is not premised on the legal status of the transaction as a lease, sale, bailment or

otherwise,” the Court emphasized that negligent entrustment liability only applies to the “supplier”

of a chattel. The Court explained that, under section 390 of the Restatement (2d) of Torts,

“negligent entrustment occurs when the defendant ‘supplies’ a chattel to another” with actual or

constructive knowledge that the entrustment creates an unreasonable risk of injury. 486 S.W.2d

at 325. The Court quoted comment (a) to section 390, “which provides that negligent entrustment

liability under section 390 attaches to any supplier, including ‘sellers, lessor[s], donors or lenders.”




5
  Our decision today should not be read to hold that an individual who provides the financial means to consummate
a transaction can never be deemed an entrustor of the purchased chattel. Indeed, we acknowledge that additional
facts, absent from the present case, could evidence sufficient control over the chattel to constitute an entrustment.
6
  In Delana, the plaintiff, who was the wife of a shooting victim, sued a gun store that sold her mentally-ill daughter
a gun after the plaintiff warned the store that her daughter was mentally unstable. 486 S.W.3d at 319.The sellers moved
for summary judgment, arguing that the negligent entrustment claim under Missouri law was preempted by the federal
Protection of Lawful Commerce in Arms Act (“PLCAA”), and, relevant to this appeal, that the plaintiff failed to state
a claim because Missouri did not recognized seller liability in a negligent entrustment action. Id. The Missouri
Supreme Court disagreed, finding that “[t]he fact that Respondents supplied the firearm to [the daughter] through a
sale does not preclude Appellant’s negligent entrustment claim.” Id. at 326.
7
 Prior to Delana, Missouri law did not recognize a negligent entrustment claim against a seller. See Noble v. Shawnee
Gun Shop, Inc., 409 S.W.3d 476 (Mo. App. W.D. 2013); Fluker v. Lynch, 938 S.W.2d 659 (Mo. App. W.D. 1997);
Sansonetti v. City of St. Joseph, 976 S.W.2d 572 (Mo. App. W.D. 1998).


                                                          7
Id. The Restatement elsewhere makes clear that a “supplier” means someone who “gives

possession of a chattel for another’s use”:

                 The rules stated in this Section and throughout this Topic [(i.e., sections
        388-390] apply to determine the liability of any person who for any purpose or in
        any manner gives possession of a chattel for another’s use, or who permits another
        to use or occupy it while it is in his own possession or control . . . . These rules,
        therefore, apply to sellers, lessors, donors, or lenders, irrespective of whether the
        chattel is made by them or by a third person. They apply to all kinds of bailors,
        irrespective of whether the bailment is for a reward or gratuitous, and irrespective
        of whether the bailment is for use, transportation, safekeeping, or repair. They also
        apply to one who undertakes the repair of a chattel and who delivers it back with
        knowledge that it is defective because of the work which he is employed to do upon
        it. (See § 403.)

        Thus, while Delana may have altered the scope of the negligent entrustment tort, it did not

eliminate the fundamental requirement that the defendant must have “supplied” a chattel to a third

party who causes injury with the chattel. This “supply” requirement was easily satisfied in Delana

where the defendants were the sellers of the property and thus had an interest in and control over

the chattel at the time of the sale and “entrustment.” By contrast, Carlyle was not a seller, lessor,

donor or lender of the Acura and, as a result, Carlyle had no ownership interest in or control over

the Acura either before or after Gallagher’s purchase.

        In a further effort to embrace an overly broad concept of what constitutes a “supplier,” the

Lockharts argue that “[a] parent who controls whether an adult child owns or drives a car can be a

supplier of the car.” Missouri courts have not previously considered whether a parent can be an

entrustor of a vehicle owned by an adult child,8 but, as the parties acknowledge, other states have

done so with inconsistent results. Compare Broadwater v. Dorsey, 688 A.2d 436, 437 (Md. App.

1997) (finding that “parents who sell or give an automobile to an adult child are not responsible


8
 Missouri courts have determined that parents can be deemed to have entrusted their own vehicles to their adult
children. See Hallquist v. Smith, 189 S.W.3d 173 (Mo. App. E.D. 2006); LeCave v. Hardy, 73 S.W.3d 637 (Mo. App.
E.D. 2002).


                                                      8
for damages when they lack the power to control the child or the automobile.”); and Zedella v.

Gibson, 650 N.E.2d 1000, 1004 (Ill. 1995) (finding that cosigning a loan “was merely a link in the

chain that facilitated [his son’s] acquisition, and subsequent possession and use, of the vehicle, but

did not itself constitute an entrustment.”); with Vince v. Wilson, 561 A.2d 103, 105 (Vt. 1989)

(finding that the someone who provides funding to an incompetent driver can be considered an

entrustor because “the issue is clearly one of negligence to be determined by the jury under proper

instruction; the relationship of the defendant to the particular instrumentality is but one factor to

be considered.”). In deciding this issue, we note that the ability to entrust property is fundamentally

grounded in the relationship between a purported entrustor and the subject chattel. In every

Missouri decision recognizing a viable negligent entrustment claim, the defendant has exercised

control of the chattel, or at a minimum has had the capacity to exercise control over the chattel

either before and/or after the purported “entrustment.” See Hays, 384 S.W.3d at 337 (stating that

the plaintiff must show that the entrustor’s right of control was superior to that of the entrustee’s).

The parent/adult child relationship between Carlyle and Gallagher simply cannot serve as a

substitute to Carlyle’s lack of authority or dominion over the Acura.9

         The trial court did not err in granting summary judgment in favor of Carlyle.10


9
 This is particularly true on our record where Carlyle’s lack of control over the Acura after the purchase is shown, in
part, by the uncontroverted facts that Gallagher possessed the only set of keys to the vehicle, Gallagher never gave
Carlyle “verbal right to control the use of the 2003 Acura,” and Carlyle never operated the vehicle.
10
   The Lockharts also allege in their brief that the trial court erred in granting summary judgment against them because
they made a submissible claim under general negligence principles. Carlyle argues that the Lockharts failed to
sufficiently assert a claim under general negligence because they failed to plead facts showing that Carlyle had a duty
to protect Tyler Lockhart from Gallagher’s actions. We agree with Carlyle. In order to assert a claim of general
negligence, a party has to plead facts showing the existence of a duty on the part of the defendant. Hallquist, 189
S.W.3d at 177-78. “A legal duty arises where: (1) imposed by the legislative branch; (2) imposed by the law based on
a relationship between the parties or because the defendant must exercise due care to avoid a foreseeable injury because
of a particular set of circumstances; or (3) a party assumed a duty.” Id. at 178 (citation omitted). The Lockharts argue
in their brief that Carlyle had a duty to protect their son because of a “special relationship” between Carlyle and
Gallagher. The Lockharts point us to no cases stating that the relationship between a parent and an adult child is
sufficient to establish any duty on the parent to protect third parties against the adult child’s actions. We decline to
find that such a duty exists. See Hallquist, 189 S.W.3d at 178 (declining to create a new cause of action based on a

                                                           9
                                             IV.      Conclusion

         The judgment of the trial court is affirmed.




                                                      __________________________________________
                                                      EDWARD R. ARDINI, JR., JUDGE

All concur.




parent’s liability for his or her adult child’s actions). The Lockharts have pleaded no additional facts to support a
finding of any duty on behalf of Carlyle based on a “special relationship.” See Williams v. Barnes & Noble, Inc., 174
S.W.3d 556, 561 (Mo. App. W.D. 2005) (stating that “[w]hen a defendant’s actions are within a category not generally
considered actionable, the specific facts on which liability is based must be pleaded with particularity.”). Therefore,
the Lockharts have not sufficiently pleaded a claim for negligence in addition to their negligent entrustment claim.

                                                         10
