Thursday, March 06, 2008
Jackpot Justice Update: Nebraska Supreme Court (J Gerrard) hands over another deep-pocket to plaintiffs' attorneys and they won't let a ruling from the "slipping backward" days stand in their way. DeWester v. Watkins, S-06-230, 275 Neb. 173 "In this case, the district court entered summary judgment for Kyle based on the rule announced in Vilas, and theCourt of Appeals affirmed that judgment because the doctrine of vertical stare decisis compelled it to strictly follow Vilas. The estate argues that Vilas was wrongly decided and should be overruled. We agree. We are persuaded by the Restatement, the reasoning of other courts to have decided the issue, and our ownauthority giving effect to the clearly articulated public policyof the Motor Vehicle Operator’s License Act, that negligent entrustment should be defined with reference to control of theentrusted property, and a defendant’s ownership of the propertyis not a prerequisite for liability for negligent entrustment. In other words, to be liable for negligent entrustment, the defendant must have had the authority to permit or prohibitthe entrustee’s use of the entrusted property. But control ofthe entrusted property is the essential element of a negligententrustment claim, not legal ownership. To the extent that Vilas holds otherwise, it is overruled.