CBA Record Sept. 2016

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ous instrumentality and the defendants had
a superior right of control. However, the
claim failed because there was no evidence
that the gun came into the possession of the
five-year-old boy through some neglectful
act of the defendants.
Defendants tout Teter as a main victory,
but a careful analysis shows it is extremely
narrow in its holding. The plaintiffs did not
allege where the pistol was kept or how it
came into the possession of the shooter,
Teter, 112 Ill.2d at 258. Thus, there was
no evidence of entrustment to the minor
and thus the complaint failed. Likewise in
Mers, there was no evidence of superior
control or ownership. The lesson of Teter
and Mers is simple: plead how the instru-
ment was entrusted to the entrustor by
the entrustee. With appropriate facts, the
negligent entrustment of a gun to another
will create liability.
In Latty v. Jordan, a farm owner allowed
a father, his son, and his son’s friend to
use the farm to do some hunting, 237 Ill.
App.3d 528, 529 (1992). On the second
visit to the farm, the farm owner allowed
the father to use one of his rifles and placed
no restrictions on their use. The father
stored the farm owner’s rifle under a mat-
tress. The boys found it and while playing
with it, the son shot and killed his friend
accidentally.
The estate of the boy sued the farm
owner contending he had negligently
entrusted the gun to the father. Justice
Barry concluded for the panel:
In the case before us, the evidence
allows a reasonable inference to be
drawn that defendant knew of and
acquiesced in the use of his .35 rifle
by 11 year old Joseph on the day
of the accident. Such acquiescence
could support a finding of implied
permission. Obviously, other infer-
ences would also be reasonable and,
therefore, a material issue of fact
exists which requires a jury deter-
mination.
The court reversed granting of summary
judgment.
The Latty case is an important one.
It holds that the negligent entrustment
need not be directly to the person who
ultimately causes the injury. There, the
entrustment was to the father but the father
then negligently allowed his son to use it.
This argument can be applied to virtually
any other instrumentality including cars,
motorcycles, and trucks.
Cases involving firearms present a
unique set of problems. While guns are
per se dangerous, savvy practitioners must
remember that establishing a dangerous
instrumentality is only one battle in a larger
war. Plaintiffs must also plead and prove
that the entrustor should have known of the
incompetence of the entrustee. In firearms
cases, showing little experience, training,
or knowledge can overcome these hurdles.
Other Cases
Perhaps the most important negligent
entrustment case in the last 20 years is
Garland v. Sybaris Club International,
Garland, 21 N.E.3d 24 (2014). There,
one of several plaintiffs alleged one of the
owners negligently entrusted his plane to
a pilot. Under FAA regulations, the pilot
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