First, the alleged at-fault driver or drivers are going to be proper party defendants. But, what about the vehicle owner? Ownership, in and of itself does not lead to liability. If the plaintiff can show that the driver was an agent of the owner at the time of the accident, or that the owner negligently entrusted the vehicle to the driver, then liability may attach to the owner.
Agency
If the driver is performing some act for another at the time of the accident, that other person, or “principal” could be liable for the driver’s negligence under agency. There are generally two scenarios when agency will come up, either the driver is family or a friend of the owner/insured, or is an employee of the insured.
Family or friend
Families can be “on the hook” for the negligence of their drivers. For example, here in Illinois, parents may be held liable under an "agency" theory for their child's negligent driving if the child was engaged in running an errand for or doing the parents' business at the time of the accident. Stellmach v. Olson, 242 Ill.App.3d 61, 64 (2nd Dist. 1993). However, the Stellmach Court explained that a parent is not liable for damages caused by a child who drove the parent's car for the child's own purposes, even if the parent consented to that use. Stellmach, 242 Ill.App.3d at 65. The question of whether an action is a family errand will be a question of fact for the jury to consider during the trial . Id.
Employment
An employer may be liable for the damages caused by the negligent acts of its employees. An employer will be liable for its employees’ negligent acts if (1) an employer-employee relationship existed at the time of the accident and (2) the employee was acting within the scope of employment when the negligent act occurred. Pyne v. Witmer, 129 Ill.2d 351, 359 (1989). The scope of employment can depend on the facts in a case. An individual should not be held to be an employee if he or she was hired as an independent contractor . But whether someone is an employee or independent contractor can be a question of fact too.
Negligent entrustment
An action for negligent entrustment consists of entrusting a dangerous article to another who the lender knows or should know is likely to use it “in a manner involving an unreasonable risk of harm to others.” Norskog v. Pfiel, 197 Ill.2d 60 (2001). Therefore, if the owner/insured lets his friend, who he knows has lost his driving privileges for moving violations, drive his car, that insured may likely face liability not only for the negligence of the driver but his own negligence in giving the driver the keys.
Liability insurance
Even if the owner is not liable because no theory of liability exists, the owner’s vehicle insurance might still cover the driver who does not own the car. Typically, liability insurance follows the vehicle. So if the driver is driving with the permission of the insured owner, there should be insurance for the driver, on the owner’s policy (unless that driver is specifically excluded or a member of the household the insured applicant failed to reveal on an insurance application). This goes back to who is insured. In this case, the insured is someone operating the insured vehicle with the named insured’s permission.
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