The sole issue in the case at bar is whether the trial court erred in denying defendant’s motion for summary judgment, implicitly finding that a genuine issue of material fact exists as to defendant’s alleged liability under the “family purpose doctrine.”
When the conditions for application of the family purpose doctrine are present, vicarious liability may be imposed upon a family member (usually the head of household) for the negligence of another family member under a fictitious agency theory.
Finnocchio v. Lunsford,
It is noteworthy that the court in
Finnocchio
chose the language from Prosser’s second edition of his Law of Torts and that this court has continued to follow that language in the subsequent cases. The reason it is noteworthy is that the third and fourth editions of Prosser’s Law of Torts were in print at the time and, in the fourth edition, Prosser made a subtle, but material, change in his statement of the doctrine. In that edition, he added “control” as an alternative to the condition of defendant’s ownership of, having a recognized property interest in, or supplying of the vehicle. Prosser, Law of Torts, § 73 at 484 (4th ed. 1971). Although Prosser cited a Georgia case in support of this added alternative
(Hexter v. Burgess,
We turn now to the facts in the case at bar. The evidence in the record shows that defendant’s daughter was driving an automobile, looking for her brother in order to give him a ride home, when she was involved in a collision with plaintiff, riding on a motorcycle. Defendant’s daughter was eighteen years old at the time, a high school graduate and she was then working full time. She was, *540 however,, living at home and subject to her parents’ general supervision. She had purchased the automobile only a few months before the collision and defendant had co-signed the note financing the car. The title to the car was in her name. She had the only set of keys to the car and she was the only family member to drive it. She paid the operational expenses. The payments to the financing company were made by check, signed by defendant or his wife, drawing funds from their joint checking account. Defendant’s daughter, however, testified in her deposition that she gave defendant cash to cover each payment beforehand. By affidavit, both she and defendant averred that defendant exercised no authority or control over the use of the vehicle.
Viewing this evidence most strongly in favor of plaintiff, it shows that (or at least creates a genuine issue as to whether) defendant supplied the automobile (shown by the evidence, though contradicted, that he paid for it) to a member of his immediate household (his daughter living at home) for family use (see particularly
Calhoun v. Eaves,
The evidence further creates an inference that defendant had the right to exercise authority and control over the use of the vehicle. The conclusory statements of defendant and his daughter to the contrary do not eliminate that inference.
Watson v. Brown,
Judgment affirmed.