No. 12949 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

JOAN M. BAHM, as Administratrix 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 Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record : 

For Appellant : 

Johnson and Foster , Lewis town, 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 1975 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal By plaintiff in a 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 driven by one William Nordahl on October 31, 1970. 

Nordahl and Bahm died as a result of the accident. The vehicle 

driven by Nordahl was owned by Jack Tripp. Defendant Dormanen 

was not present at the 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 decision was made while they were drinking 

at the Florence bar in Florence, Montana. After deciding to go 

hunting, the two men proceeded to Stevensville where 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 to Florence so that he could 

get his car and drive it home. Nordahl was to follow Dormanen 

home in the Tripp vehicle. The collision between ~ahm's vehicle 

and the pickup driven by Nordahl occurred before Nordahl reached 

Dormanen's home. Dormanen had already driven home in his own car 

and did not learn of the accident until later. A test of Nordahl's 

blood indicated that he was intoxicated at the time of the accident. 

Prior to bringing 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 filed and discovery 

accomplished, defendant moved for summary judgment. After a hearing 

Judge Brownlee granted the motion which is now before this Court 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 to recover is based to 

determine the propriety of summary judgment here. 

It is well established that summary judgment pursuant to 

Rule 56(c), Montana Rules of Civil Procedure, is not a proper tool 

for resolving disputed issues of fact. The burden of establishing 

that there is no disputed issue of material fact is on the moving 

party. Flanagan v. Curran, 164 Mont. 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 to resolve defendant's liability under 

the theory of negligent entrustment. But, after examining the 

record, we find no facts in existence or offered to the 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 

its use who is negligent 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, for a 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 to both men, but insists that defendant did have the 

physical power (by depriving Nordahl of the keys) to prevent Nordahl 

from taking the truck. This power plaintiff argues is substantial 
enough control to bottom liability under negligent entrustment. 

Alternatively, plaintiff advances the theory of joint enterprise 

as a basis for liability, even if Nordahl and defendant only 

shared control of the vehicle. 

Therefore, it is necessary to determine the scope of the 

concept of control as it relates to negligent entrustment. We 

look for guidance to cases from the state of Maryland where the 

theory of negligent entrustment has had a relatively long history. 

In adopting negligent entrustment in the case of Rounds 

v. Phillips, 166 Md. 151, 170 A. 532, the Maryland court cited 

Restatement of Torts, 5 260, as support for the doctrine. That 

section is now 5 390, 2 Restatement of Torts 2d, and its applicability 

was 

/reaffirmed in the Maryland cases of General Valet Service, Inc. 

v. Curley, 16 Md.App. 453, 298 A.2d 190,192, and Curley v. General 

Valet Service, Inc., 270 Md. 248, 311 A.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 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. I I 

(Emphasis added.) 

Discussion following 5 390 states it is merely a special application of 5 308, which provides: 

11 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. " (Emphasis added.) 

Comments to 5 308, 2 Restatement of Torts 2d, indicate control 

means : 

'I* * * 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." (Emphasis added.) 
From the above sections and official comments, it is clear 

that the basis of negligent entrustment is founded on control which 

is greater than physical power to prevent. A superior if not exclusive legal right to the 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 to plaintiff, is the theory of joint enterprise. Montana 

case law has determined the elements of joint venture to include 

a community of pecuniary interest as well as joint control. Rude 

v. Neal, 165 Mont. 520, 530 P.2d 428, 432, 31 St.Rep. 1033; KapLan 

v. Hauf, 158 Mont. 359, 366, 492 P.2d 213; Sumner v. Amacher, 

150 Mont. 544, 554, 437 P.2d 630. 

Although plaintiff urges this Court to find a community 

of pecuniary interest in the planned hunting trip we can find no 

evidence of a pecuniary motivation for the expedition. Rude v. 

Neal, supra. In addition there was not the requisite joint control 

between Nordahl and defendant at the time of the accident because 

Nordahl was driving alone. Hence, we find there was 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