[Cite as Rice v. Kanoza, 2012-Ohio-2581.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

MATTHEW B. RICE, a minor, by his 

parent and next friend, Jeanne Rice, 

 and 

JEANNE RICE, 

 

 Plaintiffs-Appellants, 

 vs. 

CHRISTOPHER KANOZA, a minor, 

 Defendant-Appellee, 

 and 

LINDSAY C. DUFFY, a minor, et al., 

 Defendants. 

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 APPEAL NO. C-110595 

 TRIAL NO. A-1004565 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: June 13, 2012 

Freking & Betz, LLC, and Mark W. Napier, for Plaintiffs-Appellants, 

Raymond H. Decker, for Defendant-Appellee. 

Please note: This case has been removed from the accelerated calendar. 
2 

SYLVIA SIEVE HENDON, Judge.

 

{¶1} The issue presented for our review is whether and under what circumstances 

a claim of negligent entrustment may be brought against a nonowner of the entrusted 

automobile. 

Facts 

{¶2} Plaintiff-appellant Matthew Rice was a passenger in a Ford Escort driven by 

defendant Lindsay Duffy when Duffy crashed into a sport utility vehicle, allegedly causing 

serious injury to Rice. Lorrie Kanoza, defendant-appellee Christopher Kanoza’s mother, 

was the owner of the car. But Christopher Kanoza (“Kanoza”) was its primary user. 

{¶3} Prior to the accident, Duffy, who was 15 years old, had been at a party with a 

number of other teenagers, including Kanoza. Kanoza had driven the Escort to the party 

that evening. In her deposition, Duffy testified that she had played “beer pong” with Kanoza 

and that Kanoza had been present when she had consumed beer. Duffy also testified that, 

after she had been drinking beer, Kanoza had seen her get into the Escort with the keys and 

sit in the driver’s seat. There is no evidence that Kanoza protested or tried to stop Duffy 

when she drove away. Rice and another passenger were also in the car. The accident 

occurred shortly thereafter. 

{¶4} Rice sued Kanoza for damages resulting from negligently entrusting the 

Escort to Duffy. Kanoza moved for summary judgment on the ground that he was not the 

owner of the Escort, and that, therefore, under Gulla v. Straus, 154 Ohio St. 193, 93 N.E.2d 

662 (1950), he could not be sued for negligently entrusting it. The trial court granted 

Kanoza’s motion and, pursuant to Civ.R. 54(B), determined that there was “no just reason 

for delay.” This appeal followed. 
3 

{¶5} In his sole assignment of error, Rice claims that the trial court misinterpreted 

Ohio law when ruling on Kanoza’s motion for summary judgment. He asserts that one who 

has control of an automobile, regardless of ownership, may be sued for negligent 

entrustment. Rice is correct. 

Standard of Review 

{¶6} We review the granting of summary judgment de novo. Summary judgment 

is appropriate only when the moving party demonstrates (1) that no genuine issue of 

material fact exists, (2) that the moving party is entitled to judgment as a matter of law, and 

(3) that reasonable minds could come to but one conclusion, and that conclusion is adverse 

to the party against whom the motion for summary judgment is made. Civ.R. 56(C); Temple 

v. Wean, 50 Ohio St.2d 317, 364 N.E.2d 267 (1977); State ex rel. Grady v. State Emp. 

Relations Bd., 78 Ohio St. 3d 181, 183, 677 N.E.2d 343 (1997).

Ownership Versus Control 

{¶7} Neither the Ohio Supreme Court nor this district has addressed the issue of 

ownership versus control in a negligent-entrustment claim. Kanoza urges us to interpret 

Gulla as limiting liability for negligent entrustment to the owner of the entrusted 

automobile. We do not construe Gulla this narrowly. In Gulla, the court held “[i]n an action 

against the owner of a motor vehicle for injury arising from its entrustment for operation, 

the burden is upon the plaintiff to establish that the motor vehicle was driven with the 

permission and authority of the owner; that the entrustee was in fact an incompetent driver; 

and that the owner knew at the time of the entrustment that the entrustee had no driver’s 

license, or that he was incompetent or unqualified to operate the vehicle, or had knowledge 

of such facts and circumstances as would imply knowledge on the part of the owner of such 

incompetency.” Gulla, 154 Ohio St. 193, 93 N.E.2d 662, at paragraph five of the syllabus 
4 

(emphasis added). The case was written in reference to the “owner” of the truck at issue 

because it was the owner who had given permission to another to drive it, and therefore, it 

was the owner who had been sued. The Gulla court did not hold that only the owner of an 

automobile could be sued for negligent entrustment. 

{¶8} Other districts are split on the issue of whether liability for negligent 

entrustment should be predicated on ownership of the vehicle involved. Relying on the 

Restatement of Torts, the Eighth Appellate District determined in dicta that a nonowner 

could be sued for the negligent entrustment of an automobile if the automobile had been 

under the nonowner’s control. See Motorists Ins. Co. v. Sokol, 8th Dist No. 45380, 1983 

Ohio App. LEXIS 12943 (Apr. 7, 1983), relying on Restatement of the Law 2d, Torts, Section 

308 and 390 (1965). 

{¶9} By contrast, the Sixth and Ninth Appellate Districts have interpreted Gulla as 

limiting liability for negligent entrustment to the owner of the entrusted vehicle. See Dunne 

v. Hanson, 6th Dist. No. L-01-1414, 2002-Ohio-2267; Gray v. Giacomelli, 9th Dist. No. 

94CA005949, 1995 Ohio App. LEXIS 2502 (June 7, 1995); DiFilippo v. Hamrlik, 9th Dist. 

No. 93CA005698, 1994 Ohio App. LEXIS 6118 (Dec. 30, 1994). For the following reasons, 

we find Sokol to be persuasive. 

Tort Law Principles Support Rice’s Argument 

{¶10} In any negligence claim, a plaintiff must prove (1) a legal duty on the part of 

the defendant, (2) the defendant’s breach of that duty, and (3) an injury that is the 

proximate cause of that breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 

2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22; Menifee v. Ohio Welding Products, Inc., 15 Ohio 

St. 3d 75, 77, 472 N.E.2d 707 (1984). 
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{¶11} Kanoza essentially contends that he owed no duty to Rice to prevent Duffy, an 

allegedly incompetent driver, from driving the Escort. “Duty” is “an obligation on the part of 

the defendant to exercise due care toward the plaintiff.” Commerce & Industry Ins. Co. v. 

Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). The existence of a duty depends on 

the foreseeability of injury. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 

(1989); Menifee, at 77; Gedeon v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924 (1934). 

{¶12} Ordinarily, there is no legal obligation to control the conduct of another 

person to prevent him or her from causing injury to a third party unless a “special relation” 

exists between the actor (the defendant) and the other person (the person injuring a third 

party). Littleton v. Good Samaritan Hospital & Health Center, 39 Ohio St.3d 86, 92, 529 

N.E.2d 449 (1988); Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 78, 

458 N.E.2d 1262 (1984); Restatement of the Law 2d, Torts, Section 315 (1965). The Ohio 

Supreme Court has determined that a “special relation” exists in cases where the defendant 

has a sufficient amount of control over another person or over property to prevent 

foreseeable harm to a third party. See Littleton, at 92, (psychiatrist owed duty to take 

reasonable measures to protect a homicide victim where the doctor had had “sufficient 

charge” over his homicidal psychiatric patient to prevent her release or alter her treatment); 

see also Ripple v. Mahoning Nat’l. Bank, 143 Ohio St. 614, 56 N.E.2d 289 (1944), (lessor is 

not liable for injuries to a third party in the absence of authority to exercise control over the 

premises to the exclusion of any control by the lessee); Cooper v. Roose, 151 Ohio St. 316, 

317, 85 N.E.2d 545 (1949) (a landowner’s “liability in tort is an incident to occupation or 

control”). In regard to negligent entrustment in particular, the Restatement of Torts 

provides that it is negligence to permit another person “to use a thing * * * which is under 

the control of the actor, if the actor knows or should know that such person intends or is 
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likely to use the thing to conduct himself in the activity in such a manner as to create an 

unreasonable risk of harm to others.” Restatement of the Law 2d, Torts, Section 308 (1965). 

{¶13} Based on these well-established tort principles, we hold that one in control of 

an automobile has a duty to third parties not to entrust that automobile to another where 

the entrustor knew or should have known that the entrustee was an incompetent driver. See 

Gullla, 154 Ohio St. 193, 93 N.E.2d 662, at paragraphs three, four, and five of the syllabus. 

Demonstrating Control 

{¶14} Our holding is consistent with Gulla. In that case, liability was predicated on 

the fact that the defendant had had sufficient control over the truck to give permission to 

another to drive it. We hold that a defendant is “in control” of a motor vehicle for purposes 

of a negligent entrustment claim where another may drive the vehicle with the permission of 

the defendant and where the defendant has reason to believe that by withholding 

permission he can prevent the person from driving. See Restatement of the Law 2d, Torts, 

Sec 308, Comment a (1965). Thus, under our analysis, ownership may be relevant to the 

issue of “control”─but it is not dispositive. 

Genuine Issues of Material Fact Remain 

{¶15} In his deposition, Kanoza testified that his mother had purchased the Escort 

primarily for his use. Kanoza stated that he drove the car to school, to work, to football 

practice, and to social functions. And he had driven the Escort to the party on the night in 

question. During the party, before Duffy had arrived, Kanoza had given permission to 

another teenager to drive the Escort. These facts were sufficient to overcome a motion for 

summary judgment on the issue of whether Kanoza had had “control” over the Escort 

sufficient to give Duffy permission to drive it and to stop her from driving it. 
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{¶16} Other issues of fact remain on Rice’s negligent-entrustment claim. Through 

Duffy’s deposition testimony, Rice has demonstrated that Kanoza may have entrusted the 

Escort to Duffy knowing that she was an incompetent driver. See Gulla, 150 Ohio St.3d 193, 

93 N.E.2d 662, at paragraphs three, four, and five of the syllabus. Duffy testified that 

Kanoza had witnessed her drinking beer during the game of “beer pong,” and that he had 

not protested when he saw her in the Escort’s driver’s seat shortly thereafter with the car 

keys. 

{¶17} For these reasons, Rice’s assignment of error is sustained. We reverse the 

trial court’s judgment entering summary judgment in favor of Kanoza and remand this case 

for proceedings consistent with the law and this opinion. 

 Judgment Reversed and Cause Remanded. 

SUNDERMANN, P.J., and CUNNINGHAM, J., concur. 

Please note: 

The court has recorded its own entry this date.