No. 12949 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

JOANM. BAHM, asAdministratrix of the Estate of FRANK BAHM, Deceased and individually as representative of herself and the minor children of FRAKBAHM, Deceased, Plaintiff and Appellant,

RONALD DORMANEN, Defendant and Respondent.

Appeal from: District Court of the Fourth JudicialDistrict, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record : For Appellant: Johnson and Foster

# ,Lewistown, Montana Robert L. Johnson argued, Lewis town, Montana For Respondent: Garlington, Lohn and Robinson, Missoula

## ,Montana Gary L. Graham argued, Missoula, Montana

Submitted: September 

### 22, 

### 1975 Decided

# :Ec f 

### 0

## 1975Mr. JusticeWesley Castles delivered the Opinion of the Court.
This isan appeal By plaintiff ina personal injury action from a summary judgment for defendant by the district court, Missoula County, the Hon. E. Gardner Brownlee, presiding. Plaintiff initiated this survival and wrongful death action after a head-on automobile collision on 

### U.S. Highway 93 south of Missoula involving a vehicle driven by her husband Frank Bahm, and a vehicle drivenby one William Nordahl on October 31, 1970. Nordahl and Bahm died asa result of the accident. The vehicle drivenby Nordahl was owned by Jack Tripp. Defendant Dormanen
was not present atthe collision scene. The events leading to the fatal accident revolve about
a decision made by Nordahl and defendant Ronald Dormanen to go on
a hunting trip. This decisionwas made while they were drinking atthe Florence bar inFlorence, Montana. After deciding togo hunting, the two men proceeded to Stevensvillewhere they borrowed
a pickup and horse trailer from Jack Tripp. Dormanen then drove the pickup and horse trailer to~ordahl's home to get Nordahl's horse. Next Dormanen drove the Tripp truck toFlorence so that he could get his car and drive it home. Nordahl was to follow Dormanen home inthe Tripp vehicle. The collisionbetween ~ahm's vehicle and the pickup drivenby Nordahl occurred before Nordahl reached Dormanen's home. Dormanen had already drivenhome in his own car and did not learn of the accident until later. A test of Nordahl's blood indicated that he was intoxicated atthe time of the accident. Prior tobringing this action, plaintiff brought another survival and wrongful death'action against Jack Tripp and the Estate of William Nordahl, which was settled out of court. In the instant case, after the answer was filedand discovery accomplished, defendant moved for summary judgment. After a hearing Judge Brownlee granted the motion which 

### isnow before thisCourt on appeal.Plaintiff cites three aspects of the case which she contends present genuine issues of material fact making summary judgment improper. However, we need only discuss the aspect of the case relating to the theory upon which the right torecover isbased to determine the propriety of summary judgment here. It 

### iswell established that summary judgment pursuant to Rule 56(c), Montana Rules of Civil Procedure, isnot 

### a proper tool forresolving disputed issues of fact. The burden of establishing that there 

### isno disputed issue of material fact is on the moving party. Flanagan v. Curran, 164Mont. 262, 265, 521 P.2d 200 and
cases cited therein. Before the district court and in this Court, plaintiff asserted that defendant has not met his burden because factual determinations were required toresolve defendant's liabilityunder the theory of negligent entrustment. But, after examining the record, we find no facts in existence or offered tothe district court which give rise to a genuine issue of material fact concerning negligent entrustment by the defendant. Specifically the theory of negligent entrustment provides that the owner or one in control of the vehicle and responsible for itsusewho 

### isnegligent in entrusting it to another can be held liable for such negligent entrustment. Anno. 19 ALR3d 1175,1192. See Smith v. Babcock, 157 Mont. 81, 482 P.2d 1014, fora prior treatment of the concept by this Court. In his memorandum to the district court, defendant cited evidence from depositions which he asserted proved the absence of one of the elements of negligent entrustment---the right of control
over the vehicle---because it had been loaned to both Nordahl and defendant. Plaintiff does not dispute this fact that the vehicle
was loaned toboth men, but insists that defendant did have the physical power (by depriving Nordahl of the keys) toprevent Nordahl from taking the truck. This power plaintiff argues is substantialenough control tobottom liabilityunder negligent entrustment. Alternatively, plaintiff advances the theory of joint enterprise
asa basis for liability, even ifNordahl and defendant only shared control of the vehicle. Therefore, it 

### isnecessary todetermine the scope of the concept of control as itrelates tonegligent entrustment. We look for guidance to cases from the stateof Maryland where the theory of negligent entrustment has had 

### a relatively long history. In adoptingnegligent entrustment in the case of Rounds


### v. Phillips, 166Md. 151, 170 A. 532, the Maryland court cited Restatement of Torts, 

### 5 260, as support for the doctrine. That section 

### isnow 

### 5 390, 2 Restatement of Torts 2d, and 

### its applicability was /reaffirmed in the Maryland cases of General Valet Service, Inc.



### v. Curley, 16Md.App. 453, 298 A.2d 190,192, and Curley v. General Valet Service, Inc., 270 Md. 248, 311A.2d 231,237. 2 Restatement of Torts 2d, 

### 5 390 provides:
It

One who supplies directly or through 

### a third person a chattel for the use of another whom the supplier knows or has reason toknow tobe likelybecause of hisyouth, inexperience or otherwise, touse it ina manner involving unreasonable risk of physical harm tohimself and otherswhom the supplier should expect toshare inorbe endangered by 

### itsuse, 

### is subject to liabilityforphysical harm resulting to them. II (Emphasis added.) Discussion following 

### 5 390 states it 

### ismerely a special application of 

### 5 308, which provides:

11It 

### isnegligence topermit a third person touse a thing or toengage inan activitywhich 

### isunder the control of the actor, if the actor knows or should know that such person intends or 

### is likely touse the thing or toconduct himself inthe activity in such a manner astocreatean unreasonable risk of harm to others.

## " (Emphasis added.) Comments to 

### 5 308, 2 Restatement of Torts 2d, indicate control
means :

'I*

# ** that the third person 

### is entitled topossess or use the thing or engage inthe activity only-by the consent of the actor, and that the actor has reason to believe thatby withholding consent he can prevent the third person from using the thing or engaging in the activity." (Emphasis added.)From the above sections and officialcomments, it is clear that the basis of negligent entrustment is founded on controlwhich is greater than physical power toprevent. A superior ifnot exclusive legalright tothe object 

### is a precondition to the imposition of the legal duty. Defendant offered to the district court such proof as to establish that he did not have such exclusive or superior control of the Tripp truck. Thus, as a matter of law, he was entitled to summary judgment unless plaintiff could overcome this proof. plaintiff's physical control arguments are insufficient to overcome defendant's proof in view of the above discussion. The only other basis for reversing summary judgment, according toplaintiff, 

### is the theory of joint enterprise. Montana
case law has determined the elements of joint venture to include
a community of pecuniary interest aswell asjoint control. Rude
v. Neal, 165Mont. 520, 530 P.2d 428, 432, 31 St.Rep. 1033; KapLan
v. Hauf, 158 Mont. 359, 366, 492 P.2d 213; Sumner v. Amacher, 150Mont. 544, 554, 437 P.2d 630. Although plaintiff urges this Court tofind a community of pecuniary interest in the planned hunting tripwe can findno evidence of a pecuniary motivation for the expedition. Rude v. Neal, supra. In addition therewas not the requisitejoint control between Nordahl and defendant atthe time of the accident because Nordahl was driving alone. Hence, we find therewas sufficient credible evidence and no material facts to the contrary to permit the district court to grant summary judgment to defendant. Judgment is a££ irmed.

### We concur:



### Chief Justice