*1 Creasy Lloyd Creasy, III, Mulholland, James L. Bell & Gillis Bell, N. for appellee. III,
Wallace Miller for HARMON et al.
A11A1855. HOOK v. Judge. Adams, interlocutory granted appeal Thomas Hook’s for We summary in order the trial court’s denial of his motion for to review judgment negligent by in Keith entrustment action filed Doreen Harmon. Because we conclude that Hook is entitled to judgment as a matter of we reverse the trial court’s denial of motion.
The relevant facts show Wade Harmon was 20,2006, son ofKeith and Doreen Harmon. On March Hook Wade traveling together Harmon were from Florida back home to North Carolina on 1-95in a car owned Hook’sfather. Wade Harmon was driving request, though the car at Hook’s knew suspended.1 Harmon’s license had been Hook said he asked Wade sleep-deprived, Harmon to drive because Hook was and he wanted to night. back to North Carolina that traveling through County, Georgia, McIntosh Wade Har- mon lost control ran off the west shoulder of the oncoming interstate, traffic, crossed the center median into struck a tractor-trailer the rear wheels. Harmon was killed in the seriously injured. collision, and Hook was the accident concluded that the collision was the result ofWade Harmon’s actions. Keith and Doreen Harmon filed suit claiming death,2 Hook for light driving the car to their son in of his record and suspended summary judgment, arguing license. Hook moved for Wade Harmon’s cause of his record or the extent of license had been 1 Although The Harmons also sued Hook’s a factual that he was aware of these facts. a factual suspended, dispute any prior drug dispute for exists as whether Hook was aware of Wade Harmon’s exists as to whether Hook father, or alcohol summary judgment but the trial court use, we will assume actually granted we must assume that he did. knew Wade Harmon’s the father’s motion for precluded recovery entrustment. The motion, trial court denied the and this followed.
“Liability predicated upon negli- entrustment gent act of the owner
with actual that the driver is (Citation punctuation omitted.) Heard, reckless.” Hicks v. liability Thus, *2 under this theory predicated respondeat superior “is not on the doctrine of but on a act of the owner in
drive, with actual the driver is (Citations omitted.) Vikers, reckless....” Saunders v. 116 324) (1967). Liability requires Ga. SE2d proof negligence concurring proximate that the entrustor’s is a cause along any negligence by arising the entrustee incompetency injured party from But recklessness. Id. where the contributory negligence3 generally entrustee, is the his own will bar recovery against him from entrustor.
Whisman, example, In this Court found that an negligence parents’ wrongful entrustee’s own barred her death claim theory based on a entrustment. Id. at 170-171. In that knowing entrusted her car to Whisman that Whis- man was not “in condition to drive an automobile” because she drinking. had been Id. at car, 169. Whisman lost control ofthe and as driving, negligence third-party the result ofher own or the driver, of a Ridgeway, both, or was a drove off the killed, road. Whisman was and who passenger injured. car, was found, Id. This Court as a negligence, solely matter of that Whisman’s either or in concur- negligence party, rence with the of the unidentified third caused the “any negligence Ridgeway accident and her car to Whisman while she was intoxicated was neither the sole cause nor a concurrent cause of the accident which caused Whisman’s death.” Id. at 171. we reversed the denial of Ridgeway’s motion Id. 856) (1987),
And Spivey, years allowed Sellers an unlicensed minor of 15 contributory negligence, This plaintiffs right recovery, comprised which acts as a bar to a of two distinct ordinary defenses: at all a times must use not, by must his own he the sole cause ofhis own (2) plaintiff negligence a must use care to avoid the defendant’s when such negligence apparent apparent or should in the exercise of care he to him. (Citation omitted.) Id. at 170. drinking,
age, father’s car. Sellers crashed to drive his who had been Spivey- injured. Id. The Court held that even and was allowing Georgia statutory Sellers to law4 had violated recover because she did not entitle Sellers to such a violation the law herself had violated thereby
by operating motor without a vehicle driving posed. creating s a [A] her own ... hazard responsible person illegally mentally capable criminally among operating the class of [Sellers] a motor is not imposes duty, persons [the statute] benefit for whose negligence. breach of which constitutes actionable rejected argument Spivey, at 245. The Court also Sellers’ Id. duty stop car, from seated in the back seat of the had a Sellers was slightly just he her swerve before the crash. once observed had the last to avoid the effect of “[I]t [Sellers] was [Spivey’s] alcohol, the part by ceasing her own operate she in control of the automobile to the crash.” Id.5 only evidence of the accident in this case comes from the *3 trooper asleep as Hook was at the
time. the The stated Wade Harmon lost control of car concluded that the collision occurred as the result of Wade Harmon’s own actions. The Harmons
presented no evidence to counter the trooper’s Therefore, version of events. past driving history suspension
aware of Wade Harmon’s and the of his negligence conclude as a matter of law that Wade Harmon’s we own proximate cause of his death. Wade Harmon stepped driving behind the full wheel of Hook’scar with ofhis own suspended license,
record and his and his actions were the upon It sole cause ofthe fatal crash.6 was incumbent Wade which was the vehicle capacities.” risk: owned or in violation of authorized under this affect determining negligence at 243-244 Hook would also be entitled to See OCGA 40-5-122 him or under his control to be driven fact that produced by (court judged any § did not as if the drivers chapter of those cases here. As . . . [the driver] consider contributory negligence, “any voluntary provisions (“No person or who is not licensed for the intoxication in 210 Ga. intoxication of this shall chapter.”). possession at 170. See also upon any highway by any person addressing Spivey be condition, under the doctrine of authorize or type disregarded, her normal mental and cases or class of vehicles to be driven court disability were noted, permit issues). intoxicated [the] or a motor vehicle 185 Ga. operation who is not does not physical Harmon to exercise and he had the any negligence part by refusing last to avoid on Hook’s to drive. the Harmons contend that Hook’s entrust- they point concurrent,
ment was a cause ofthe to supporting making Rather, such an assertion. argument, suggest the Harmons seem to that their adult son was incompetent degree respon- somehow to a that he could not be held sible for his actions in or his own decision to behind the exists, wheel ofthe car. however, No evidence that Wade Harmon had impaired any way. been declared or that he was Nor support does the record contain evidence to the Harmons’ asser- pressured by tions that Wade Harmon was forced or Hook to drive. Hook testified that he asked or directed Wade to drive because he had slept. suggest But no evidence exists Harmon, that Wade request was an could not have refused Hook’s or direction. Moreover, there was evidence that Wade Harmon had driven on losing including several other occasions since his license on a trip job; Appellee to Florida and at his one witness even testified that working driving every Keith Harmon “had Wade . . . week to Hilton Any proffered by Head with no license.” additional theories part Harmons as to force or criminal action on the of Hook with regard unsupported by any appearing the accident are facts speculation. record and thus are mere “[s]ummary judgment And it is well settled that speculation cannot be avoided based on conjecture.” (Citation omitted.) Widener, Cowart v. (3) (c) (697 wrongful we find that the Harmons’ death suit is denying barred as a matter of and the trial court erred in summary judgment. e.g., Cummings See, Grubb, 167) (1987) (where negli- Ga. gence 874-875 child’s injury, parents
is the sole cause of cannot recover for law). death as a matter of Judgment Blackwell, J., Barnes, J., reversed. concurs. P. concurs specially. *4 Assumption danger intelligent of risk is a matter acqui- escence in while contributory lack of care for one’s own departure is a matter of some fault or from the standard of reasonable may coexist, may conduct. The two or either exist without the other. The difference frequently is one between risks which were in fact known or so them, merely obvious that he must be taken to have known of and risks which he might have discovered the exercise of care. (Citations punctuation omitted.) Wright Co., App. 190, (a) v. The Concrete concurring specially. Presiding Judge, BARNES, agree agree case, in this I do not with I the outcome with majority specially said, I concur is and therefore
all that opinion.7 exists about whether if an issue of fact In this negligently truck to the Harmons’ entrusted his single-car negligent entrustment to the son, relates that badly injured. There is no died and Hook was in which the son wreck recklessly, speeding acting the son had been evidence that asking parents gave for Hook and his some of the reasons his were landlord not directing and for that all to allow their son to drive go up regarding command,” “chain of the son were to decisions secretly by the father. headed jurisprudence, specially there
I concur because under our tort may his in which an entrustee sue entrustor be situations despite risk, entrustment, considerations of agree contributory negligence. is cause, I that this majority specially cases, therefore, I concur in the one of those opinion. Searcy Smith, Brennan, Glidewell, & Mark H. Scavo, Cohen, Carlton, for Jan P. Matthew W.
Weinstock appellees.
A11A2121. THE STATE v. BROWN. Presiding Judge. MlKELL, Dwight Georgia appeals grant motion State of Brown’s quashed it the indictment him because abatement which Finding “open error, not returned in court.” no we affirm. January County grand jury 6, 2011, On a Cobb returned against Dwight recently indictment Brown a courtroom (the “Courthouse”). County At the time constructed Cobb Courthouse returned, the indictment was the Courthouse had limited accessibil- said, opinion physical precedent only. agree all Court Because I do not Appeals (a). Rule 33 to dismiss as moot. The motion is denied. Brown filed motion