This is a tort action arising from a motor vehicle collision in which Karey Lynn Wooldridge was fatally injured. The plaintiffs are the parents of the deceased on a wrongful death claim and the father, as administrator of her estate, on a claim for personal injuries, mental anguish, shock and fright suffered by deceased prior to her death.
Plaintiffs’ complaint alleges that, at the time of the collision, deceased was a passenger in a vehicle negligently operated by defendant Brett Young. Plaintiffs’ complaint also states claims against defendant Forrest Young, father of defendant Brett Young, predicated on theories of the family purpose doctrine and negligent entrustment. Claims against defendants Del Taco, Inc., Creative Food ’N Fun Company and ARA Services, Inc. are predicated on allegations that these defendants negligently sold defendant Brett Young alcoholic beverages prior to the collision.
This appeal is taken by defendant Forrest Young from an order of the superior court granting plaintiffs’ motion for summary^ judgment on the applicability of the family purpose doctrine, thereby imposing liability on defendant Forrest Young for any liability found in this action to exist on the part of his son, defendant Brett Young, arising out of the subject fatal collision. Defendant Forrest Young also enumerates as error the denial of his motion for summary judgment on the applicability of the family purpose doctrine and applicability of plaintiffs’ negligent entrustment theory. Held:
1. The affidavit of defendant Forrest Young avers that defendant Brett Young was a minor and lived with his parents, that the automobile driven by defendant Brett Young at the time of the collision was purchased approximately four months prior to the collision, that the automobile was registered and titled in defendant Forrest Young’s *662 name because defendant Brett Young was a minor, and that the down payment for the purchase was $1,000 cash, of which defendants Forrest Young and Brett Young each provided one-half. Defendant Forrest Young further averred that he gave the automobile dealership a check for $12,000, that two days after the purchase of the automobile defendant Brett Young obtained a loan for $12,000, the entire proceeds of which were transferred to him (Forrest Young) to reimburse for the cash and check given the dealership, and that this method of payment was used since defendant Brett Young did not have a checking account. In his affidavit defendant Forrest Young also averred that subsequently defendant Brett Young obtained insurance on the automobile in his name, and that the insurance premiums were paid by defendant Brett Young by providing cash reimbursement for checks drawn on the account of Mr. and Mrs. Forrest Young (again because Brett Young had no checking account). Defendant Forrest Young also stated that he “did not have his own personal set of keys” to the automobile, performed no maintenance on the automobile, “never did and never could authorize another family member to drive” the automobile as he did not consider the automobile to be his, and that defendant Brett Young exercised exclusive authority, custody and control over the automobile. These facts were corroborated by the affidavit of defendant Brett Young.
“Upon a motion for summary judgment, the burden is upon the movant to establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56. In determining whether a movant meets the summary judgment burden, the respondent must be given the benefit of all favorable inferences and every reasonable doubt.
Holland v. Sanfax Corp.,
Before the superior court and again before this court, plaintiff relies heavily upon our decisions in
Sledge v. Law,
The rules governing applicability of the family purpose doctrine have been often restated. See in this regard
Murch v. Brown,
In the case sub judice, the evidence is in conflict as to defendant Forrest Young’s right to exercise authority and control over the use of the vehicle. Viewed most strongly in favor of plaintiff the evidence shows that defendant Forrest Young supplied the automobile to an unemancipated minor son who was a member of his immediate household for family use and that the automobile was being driven with his acquiescence at the time of the collision. Viewed most favorably to defendant Forrest Young the evidence shows that the automobile was the separate property of an emancipated minor son over which he had no authority and control. Consequently, the superior court erred in granting summary judgment in favor of plaintiffs on the issue of liability under the family purpose doctrine. The superior court did not err in denying defendant Forrest Young’s motion for summary judgment in regard to plaintiffs’ theory of liability based on the family purpose doctrine.
2. The superior court did not err in denying defendant Forrest Young’s motion for summary judgment in regard to plaintiffs’ theory of liability based on negligent entrustment. “Under the theory of negligent entrustment, ‘liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must con
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cur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. (Cits.)’
Saunders v. Vikers,
Judgment affirmed in part and reversed in part.