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No. 102,019 IN THE COURT OF APPEALS OF THE STATE OF KANSAS ADAM TUANLOC TRAN, Appellant, v. QUANG HONG NGUYEN, Defendant, STEVEN D. HOHENSEE and XUAN HONG HOHENSEE, Appellees, and THE BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, KANSAS, Defendant.

SYLLABUS BY THE COURT 1. The tort of negligent entrustment occurs when the owner of an automobile allows a third party to drive it, knowing that the driver is incompetent or habitually careless.

2. Negligent entrustment requires that the owner of the vehicle be aware of the past activities or characteristics of the driver that render it unsafe for the owner to entrust the driver with the vehicle.
Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed August 27, 2010. Affirmed.

Michael Crow, Martha Burnett Crow, and John A. Oliveros, of Crow & Associates, of Leavenworth, for appellant Adam Tuanloc Tran.

Paul Hasty, Jr., of Schmitt, Manz, Swanson & Mulhern, of Overland Park, for appellees Steven D. Hohensee and Xuan Hong Hohensee.

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Before LEBEN, P.J., GREEN and CAPLINGER, JJ.

CAPLINGER, J.: Adam Tuanloc Tran was a passenger in a minivan driven by Quang Hong Nguyen when Nguyen collided with another vehicle. Tran sued the owners of the minivan, Steven and Xuan Hong Hohensee (husband and wife) (the Hohensees), for negligently entrusting their minivan to Nguyen. The district court granted the Hohensees' motion for summary judgment, and Tran now appeals. Finding no error in the district court's ruling, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND In 2005, Tran and Xuan Hohensee were passengers in a minivan driven by Nguyen and owned by the Hohensees when Nguyen drove his vehicle into the path of a vehicle driven by Sarah Shockey. Nguyen was an experienced driver who had previously driven the Hohensees' van on multiple occasions, and he had not been involved in any prior vehicle accidents.

Before the accident, the Hohensees had removed the minivan's middle seat and, in the space created, had placed the spare tire, a rug, and other loose items. At the time of the accident, Tran was seated in the back seat of the van. Tran was wearing his seat belt and had not noticed any problems with the seat belt. After the accident, the seat belt appeared frayed.

When emergency crews arrived after the accident, Tran was lying on the floor of the minivan with his head on the spare tire. Tran had a seizure after the accident and does not remember the details of the accident.

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Tran subsequently brought this negligence action against Nguyen, the Hohensees, Sarah Shockey, Dale Shockey (Shockey's father), and the Board of County Commissioners of Leavenworth County. Tran alleged Nguyen was negligent in that he was inattentive, failed to yield the right of way, failed to maintain proper control of the vehicle, and failed to maintain a proper lookout. According to the petition, Shockey was negligent in failing to maintain proper control of her vehicle, failing to maintain a proper lookout, driving at an excessive speed for the conditions, and being inattentive. Tran also brought a negligent entrustment action against Dale Shockey, alleging he knew or had reason to know that his minor daughter was an incompetent and careless driver.

Regarding the Hohensees, Tran alleged they "negligently entrusted their 1992 van to defendant Nguyen by furnishing the van to defendant Nguyen, knowing, or having reason or cause to know, defendant Nguyen to be an incompetent, careless driver."

Finally, Tran asserted the Board was negligent in the design, construction, and maintenance of the intersection where the accident occurred.

Pursuant to a joint motion filed by Tran and the Shockeys, the Shockeys were subsequently dismissed from the lawsuit with prejudice.

The Hohensees moved for summary judgment, asserting there was no evidence that Nguyen was an incompetent or careless driver and, thus, there was no evidence to support Tran's claim of negligent entrustment. Tran responded, arguing Nguyen was a careless driver because he knew or should have known the van was unsafe because its middle seat had been removed, the spare tire was unsecured, and the seat belt was frayed. Nguyen claimed the Hohensees negligently entrusted the van to Nguyen because they knew the van was unsafe and permitted Nguyen to drive it despite his knowledge of the unsafe conditions.

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The district court granted the Hohensees' motion for summary judgment, finding there were no genuine issues of material fact and the facts alleged by Tran were legally insufficient to support his negligent entrustment claim. Further, although the district court had not resolved Tran's claims against the remaining defendants, the court expressly entered final judgment under K.S.A. 60-254(b) against Tran and in favor of the Hohensees, thus permitting this appeal.

ANALYSIS

On appeal, Tran argues the district court erred in granting summary judgment because material issues of fact remain as to whether the Hohensees' negligently entrusted the vehicle to Nguyen.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).

Summary judgment should be granted with caution in negligence actions. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). However, summary judgment is proper in a negligence action if the defendant shows there is no evidence

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indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007).

Negligent entrustment is "knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. [Citations omitted.]" McCart v. Muir, 230 Kan. 618, 620, 641 P.2d 384 (1982); see also Grimmett v. Burke, 21 Kan. App. 2d 638, 650, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996) ("[N]egligent entrustment occurs when the owner of an automobile allows a third party to drive it while knowing that the driver is incompetent, careless, or reckless."). Thus, to avoid summary judgment on this claim, Tran was required to present evidence that the Hohensees entrusted their minivan to Nguyen with knowledge, or with reasonable cause to know, that Nguyen was an incompetent driver. See PIK Civ. 4th 121.92. "An incompetent driver is one, who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care." McCart, 230 Kan. at 620.

Significantly, in his petition, Tran characterized his negligent entrustment claim as consistent with Kansas law--i.e., he alleged the Hohensees entrusted their vehicle to Nguyen knowing him to be an incompetent or careless driver. However, in response to the Hohensees' summary judgment motion, Tran did not directly argue that Nguyen was an incompetent or careless driver. Instead, as the district court noted, Tran attempted to rely upon a "creative" interpretation of Kansas' negligent entrustment law. Essentially, Tran reasoned that Nguyen knew or should have known the Hohensees vehicle was unsafe and, consequently, Tran was a "careless" driver. Tran then concludes that because the Hohensees knew their vehicle was unsafe and entrusted the vehicle to a driver who knew or should have known the vehicle was unsafe, they negligently entrusted their vehicle to a careless driver.

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Tran claims the minivan was unsafe in several respects: (1) the middle row of seats had been removed; (2) a spare tire and other loose items were stored in the area created by the removed seats; and (3) the shoulder harness of Tran's seat belt was frayed. It is unclear whether Tran claims Nguyen knew, or should have known, of these conditions.

For instance, Tran repeatedly argues that Nguyen failed to inspect the minivan before driving it. Further, he points out that Xuan Hohensee, who was a passenger in the vehicle, knew that Nguyen had failed to inspect the vehicle. However, in his appeal brief, Tran also inconsistently suggests that Nguyen "knew of the alleged dangerous conditions and elected to drive and transport passengers despite these numerous unsafe conditions." He further suggests that "[t]he dangerous conditions were open and obvious, the unsecured metal wheel was lying in the open."

Regardless of Tran's inconsistent positions regarding Nguyen's knowledge of the alleged dangerous conditions, we cannot agree with Tran's premise that driving an allegedly unsafe car renders a driver incompetent, careless, or reckless and renders the car's owners liable for the negligent entrustment of the vehicle. Negligent entrustment requires that the owner of the vehicle be aware of characteristics of the driver, not the vehicle, that render it unsafe for the owner to entrust the driver with the vehicle. See McCart, 230 Kan. at 620; Fogo, Administratrix v. Steele, 180 Kan. 326, 328, 304 P.2d 451 (1956); Grimmett, 21 Kan. App. 2d at 650.

Tran does not allege that Nguyen was an unsafe driver by reason of his age, experience, physical or mental condition, or known habits of recklessness. Nor did Tran present any evidence to show that the Hohensees knew or should have known that Nguyen was an unsafe driver based upon any personal characteristics. Rather, Tran relies entirely upon evidence which he suggests shows that the minivan was unsafe.

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In suggesting that the trial court should have found material questions of fact remaining as to whether Nguyen stated a claim of negligent entrustment pursuant to Restatement (Second) of Torts

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