Barry SCHNEIDER, Petitioner, v. ESPERANZA TRANSMISSION COMPANY, Respondent, 744 S.W.2d 595

OPINION CAMPBELL, Justice. This is a negligent entrustment of a motor vehicle case. The trial court rendered judgement for Schneider for actual and exemplary damages. The court of appeals reversed the trial court judgment and rendered judgment that Schneider take nothing. 714 S.W.2d 401. We affirm the judgment of the court of appeals. Esperanza Transmission Company, an oil field pipeline service company, provided a pick-up truck for business and personal use of its employee, Havelka. Havelka and Steven Schroeder went to a dance in the pick-up.

Upon leaving the dance, Havelka stated he had too much to drink and asked his companion, Schroeder, to drive. Schroeder collided into the rear of a vehicle occupied by Schneider. Schneider sued Esperanza alleging Esperanza was negligent and grossly negligent for entrusting the truck to Havelka and that these acts were the proximate cause of the occurrence. Schneider also alleged that Havelka was negligent and grossly negligent in entrusting the truck to Schroeder and that this was also a proximate cause of the accident.

The jury found Esperanza and Havelka liable for negligence and gross negligence on the theory of negligent entrustment. Based on the jury’s verdict, the trial court awarded Schneider actual and punitive damages. Following rendition of the judgment, the actual damages were settled. Esperanza appealed the trial court’s award of punitive damages. The court of appeals reversed the trial court judgment and rendered judgment that Schneider take nothing.

That court held there was no proximate cause between the entrustment of the vehicle from Esperanza to Havelka and the accident because Havelka was not driving the vehicle. To establish the automobile owner’s liability, there must be a showing of (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, (4) that the driver was negligent on the occasion in question and (5) that the driver’s negligence proximately caused the accident. Williams v. Steve’s Industries, Inc., 699 S.W.2d 570, 571, (Tex.1985); Mundy v.

Pirie-Slaughter Motor Co., 206 S.W.2d 587, 591 (1947). Punitive damages can be imposed if the owner of the vehicle knows or should have known that the entrusted driver was incompetent or habitually reckless and the owner was grossly negligent in entrusting the vehicle to that driver. Williams v. Steve’s Industries, Inc.; Montgomery Ward & Co. v. Marvin Riggs Co., 584 S.W.2d 863 (Tex.Civ.App.—Austin 1978, writ ref’d n.r.e.).

For entrustment to be a proximate cause, the defendant entrustor should be shown to be reasonably able to anticipate that an injury would result as a natural and probable consequence of the en-trustment. Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017 (1939); Russell Construction Co., 186 S.W.2d 233, at 236; Hanson v. Green, 339 S.W.2d 381 (Tex.Civ.App.—Texarkana 1960, writ ref’d). The basis for negligence in the entrustment of the vehicle to Havelka by Esperanza was Havel-ka’s record of speeding tickets and the risk that he would drive too fast and injure some member of the traveling public.

However, Havelka was not driving the vehicle at the time of the collision. There is no evidence that Esperanza was aware of any propensity of Havelka to become intoxicated or to exercise poor judgment in allowing others to drive the truck. Schneider contends there is no requirement that Havelka be driving the vehicle at the time of the accident. He argues the operation of a vehicle includes more than the actual driving of the vehicle; it includes any and all conduct of the entrustee done with the permission of or at the direction of the entrustor that in any way affects the operation of the vehicle.

Schneider asserts that when the owner of a vehicle permits an incompetent or reckless driver to use his vehicle, he creates a dangerous instrumentality and his action sets in motion the chain of events that follow. Accordingly, Schneider submits by proving Havelka was negligent in turning the vehicle over to Schroeder, he proved that Havelka was negligent in the operation of the truck and proximately caused the accident.

Schneider cites several joint venture cases for the proposition that two persons involved in the operation of a motor vehicle are both considered drivers because their negligence is imputable to each other. See, Fuller v. Flanagan, 468 S.W.2d 171, 174-5 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.); Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129 (1956); El Paso Electric Co. v. Leeper, 60 S.W.2d 187 (Tex.Comm’n.App.1933).

These cases are inapposite because unlike the theory of liability for joint ventures, liability under an entrustment theory does not arise out of the prior relationship of the parties, but from the act of entrustment of the motor vehicle. Nor does entrustment liability rest upon imputed negligence; it rests upon the combined negligence of the owner in entrusting the vehicle to an incompetent or reckless driver and negligence of the driver. Schneider also relies on Sturtevant v. Pagel, 130 S.W.2d 1017 (Tex.1939). In Sturtevant, the owner of a car with defective brakes allowed his son to drive the car.

The son allowed a friend to drive, and the friend had an accident. Liability against the father was upheld on a negligent en-trustment theory. Stutervant’s liability was predicated on his negligence in entrusting a vehicle with defective brakes to his son which caused the injuries of plaintiff. Schneider’s reliance on this case is misplaced. Foreseeability and causation are necessary elements of proximate cause. The cause of the accident was Havelka’s failure to use sound discretion in allowing someone else to drive. The risk that caused the entrustment to be negligent did not cause the collision.

We affirm the judgment of the court of appeals. ROBERTSON, J., dissents with opinion joined by RAY, KILGARLIN and MAUZY, JJ.