Marvin Webb appeals from the trial court’s grant of summary judgment to Don W. Day and Don W. Day Construction Company, Inc. on Webb’s personal injury claim. We find no error and affirm.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA§ 9-11-56 (c);
Lau’s Corp. v. Haskins,
Viewed in the light most favorable to Webb, the evidence shows that Day entered into an oral agreement with Pike Creek Turf Farms (“Pike Creek”) to build a house on its property. Pike Creek agreed to compensate Day by the hour plus costs. Day furnished his own work crew to perform the carpentry, and subcontracted the electrical, plumbing, and roofing work.
Day rented a forklift, which was delivered to the Pike Creek construction site on June 1,1999. Pike Creek reimbursed Day for the cost of renting the forklift. Day told the rental company that he intended to use the forklift to put decking on the house, and that Pike Creek could use the machine for trimming tree limbs. A representative of the rental company explained the operation of the forklift to Day, including a leveling indicator located on the windshield. Day then used the forklift to put the decking on the house. Day also used the forklift to lift a Pike Creek employee, Dake Boling, into the air so that Boling could trim limbs from two oak trees.
On June 2,1999, Day left the construction site around 4:00 p.m. After Day left, Boling decided to use the forklift to trim tree limbs on the Pike Creek premises. Boling believed that the forklift was available for use by Pike Creek employees and had previously spoken to Day about using the machine. Day was certain that he told Boling about the level indicator located on the windshield post, although Boling deposed that Day did not explain how to level the forklift.
Boling asked for Webb’s assistance in trimming the tree limbs. He deposed that trimming hazardous limbs was part of his job in maintaining the farm, and he was the person who made the decision to trim the limbs. Webb got onto a plyboard platform which had been previously attached to the
1. Webb contends the trial court erroneously found that his affidavit contained inadmissible hearsay. We disagree.
In his affidavit, Webb averred that “[w]hen I arrived at the construction site, Dake Boling informed me that Don Day asked him to cut some tree limbs which were close to the house so that Day would be able to continue constructing the roof the following day.” Though Webb admits that the statement is hearsay, he contends nonetheless that Boling was acting as Day’s agent and that Boling’s statement was admissible as a statement of a party opponent under OCGA § 24-3-33.
“Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” (Citations omitted.)
Smith v. Merck,
We thus conclude that the evidence does not support the finding of an agency relationship between Boling and Day, and that the trial court was therefore correct in not considering the hearsay statement for purposes of Day’s motion for summary judgment. See
Harrell v. Fed. Nat. Payables,
2. Webb further claims that material issues of fact remain as to whether Day negligently entrusted the forklift to Boling. We disagree.
“Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with
actual
knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” (Citation and punctuation omitted; emphasis in original.)
Murphy v. Blue Bird Body Co.,
Even if we assume there is evidence to show that Day had control of the forklift and entrusted the machine to Boling, there is no evidence that Day had actual knowledge that Boling was incompetent or had a known habit of recklessness. To the contrary, there was evidence that Boling was competent to operate a forklift. Boling had operated forklifts on “numerous occasions” during the course of his duties at Pike Creek, was experienced in the operation of heavy machinery, and had been trained not to lift persons on a forklift. Thus Day had no reason to believe
Webb also contends that Day had actual knowledge that Boling was going to use the machine in an unsafe and improper manner by lifting someone into the air balanced on the forks of the machine, as Day had done with Boling previously. It is true that Day had previously used the forklift to raise Boling into the air to trim tree limbs. Even so, however, evidence concerning Day’s use of the forklift is not evidence of Day’s actual knowledge that Boling intended to use the forklift in the same unsafe manner as Day had. Nor can Webb argue that Day should have known that Boling would use the forklift in an unsafe way, since “[i]t is not sufficient ... for a plaintiff to show constructive knowledge, i.e., that the entrustor should have known the person being entrusted was not competent.” (Citation omitted.)
Upshaw v. Roberts Timber Co.,
3. Finally, though the trial court made no specific finding on the issue of causation, Webb contends the trial court erroneously concluded that Day did not proximately cause Webb’s injuries.
Causation is one of the elements of a negligence claim. “[T]o recover for injuries caused by another’s negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages.” (Citations and punctuation omitted.)
Johnson v. American Nat. Red Cross,
Judgment affirmed.