Adams v. Presnell, A157924

• Decision Date: 28 June 2017
• Docket Number: A157924
• Parties: Shawnee ADAMS, Plaintiff-Appellant, v. Holly PRESNELL, as guardian ad litem FOR the minor Zachary David ADAMS, Defendant-Respondent.
• Court: Oregon Court of Appeals

286 Or.App. 390

398 P.3d 949

Shawnee ADAMS, Plaintiff-Appellant,

v.Holly PRESNELL, as guardian ad litem FOR the minor Zachary David ADAMS, Defendant-Respondent.

A157924

Court of Appeals of Oregon.

Argued and submitted February 23, 2016.

June 28, 2017

Brady Mertz argued the cause and filed the briefs for appellant.

Melissa J. Ward argued the cause for respondent. With her on the brief were Joseph W. Much and Spooner & Much, P.C.

Bridget Donegan and Larkins Vacura LLP filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

SERCOMBE, P. J.

Plaintiff appeals a judgment in favor of defendant, assigning error to the trial court's grant of defendant's motion for summary judgment on plaintiff's negligence claim. Plaintiff was injured in a single-car accident while defendant, her minor son, was driving. Plaintiff filed a claim against defendant in which she alleged that she was injured as a result of his negligent driving. Defendant filed a motion for summary judgment, contending that plaintiff's claim was barred by the family purpose doctrine, which, under certain circumstances, imposes vicarious liability on the owner of a car maintained for a "family purpose" for the negligence of family-member drivers. The trial court agreed with defendant and granted the motion.

On appeal, plaintiff contends that the trial court misapplied the family purpose doctrine. According to plaintiff, the doctrine exists to allow a third party to recover damages from the owner of a motor vehicle if the third party is injured due to the negligence of a member of the owner's family in operating the vehicle, not to bar the owner from recovering for his or her own injuries. Defendant responds that the family purpose doctrine imputes liability to the owner of a car, regardless of the circumstances. We agree with plaintiff and, therefore, reverse and remand.

In reviewing a trial court's grant of a motion for summary judgment, we view the evidence in the light most favorable to the nonmoving party "for the purpose of deter-mining whether there is no genuine issue of material fact and the [moving party] is entitled to judgment as a matter of law." Farnworth v. Rossetto , 285 Or.App. 10, 12, 396 P.3d 272 (2017).

The relevant facts are few and undisputed. Plaintiff and defendant were in a single-car accident. At the time of the accident, defendant was a minor and had a learner's permit, allowing him to drive only if supervised by someone over the age of 21. See ORS 807.280(8). Plaintiff, defendant's mother, was a passenger in the car, and its sole owner. Defendant lived with plaintiff as a member of her household.

While defendant was driving, he struck a power pole on the side of the road, and plaintiff was injured. She filed a personal injury tort action, alleging that defendant was negligent in failing to keep and maintain a proper look-out, failing to maintain control of the vehicle, and driving at an unreasonable speed for the conditions. Defendant filed an answer, in which he denied fault for the accident and pleaded two affirmative defenses. First, he argued that his negligence should be imputed to plaintiff under the family purpose doctrine, which, according to defendant, barred her recovery. Second, he asserted that plaintiff was personally negligent in her supervision of defendant while he was driving, contributing to the cause of the accident.

Defendant then moved for summary judgment based on the family purpose doctrine. Defendant contended that plaintiff should not be allowed to recover because, under that doctrine, "any negligence attributable to the defendant * * * is also attributable to the plaintiff herself[,] negating her ability to make a claim against her own family member for whose alleged negligence she is also responsible under the law ." (Underscoring in original.) According to defendant, because plaintiff would have been vicariously liable under the family purpose doctrine "[i]f the defendant had struck a pedestrian," by suing defendant she was, "in essence, suing herself." Defendant emphasized that he was not moving for summary judgment based on his allegation that plaintiff was independently negligent for inadequately supervising defendant's driving.¹ Plaintiff responded that the family purpose doctrine did not bar her recovery, because it does not impute liability to an owner-passenger when the owner is injured due to a family-member driver's negligence. Rather, according to plaintiff, the doctrine applies only to extend recovery to third parties. Following oral argument by the parties, the trial court granted defendant's motion and entered a general judgment dismissing plaintiff's claim. This appeal followed.

On appeal, with some exceptions that we discuss below, the parties reiterate the arguments that they made in the trial court. Consequently, resolution of this case depends on whether, under the family purpose doctrine, a family-member driver's liability is imputed to an owner-passenger in an action brought by the owner-passenger against the family-member driver.

Under the family purpose doctrine, if an "automobile is maintained by the owner for the pleasure or convenience of his family, a member of the family who uses it for his own pleasure or convenience with the knowledge and consent of the owner is the agent of the owner and the latter is responsible for his negligence." Kraxberger v. Rogers , 231 Or. 440, 450, 373 P.2d 647 (1962). Generally, an agency relationship "results from the manifestation of consent by one person to another that the other shall act on behalf and subject to his control, and consent by the other so to act." Eads v. Borman , 351 Or. 729, 735, 277 P.3d 503 (2012) (internal quotation marks omitted). However, the general requirements for an agency relationship are not necessary in family purpose doctrine cases. Instead, to further public policy goals, courts have created a "fiction of agency" to "fasten upon the owner of a family car responsibility for the negligence of a member of the family while operating the car, even though there is no real agency within the legal meaning of that word." Wiebe v. Seely, Administrator , 215 Or. 331, 346, 348, 335 P.2d 379 (1959). As the court explained in McDowell v. Hurner , 142 Or. 611, 617, 622, 20 P.2d 395 (1933) (on rehearing), "[i]n the hands of an inexperienced or careless driver[,] a motor vehicle is nothing short of a public menace. Public policy therefore demands that owners of automobiles be held to the strictest account for any negligence in their operation resulting in injury to others." See also id . at 623, 20 P.2d 395 ("A judgment for damages against an infant daughter or an infant son, or a son without support and without property, who is living as a member of the family, would be an empty form. * * * We think the practical administration of justice between the parties is more the duty of the court than the preservation of some esoteric theory concerning the law of principal and agent."). Accordingly, the family purpose doctrine relies on a fictitious agency relationship to "impute vicarious liability to the owner of a car for the negligence of a family member." Arizpe v. Vankirk , 204 Or.App. 372, 374, 129 P.3d 718, rev. den. , 340 Or. 672, 136 P.3d 742 (2006) ; see also Prauss v. Adamski , 195 Or. 1, 11, 244 P.2d 598 (1952) ("Under the doctrine of respondeat superior, a principal may be held liable for damages caused a third person by tortious acts committed by his agent while acting within the scope of his authority.").

The parties do not dispute that the basic elements of the family purpose doctrine are met—plaintiff maintained the car for the pleasure and convenience of her family, and defendant was a member of her family driving with her permission. We therefore turn to the issue of whether defendant's liability is imputed to plaintiff in these circumstances. We conclude that it is not. Two Supreme Court decisions are particularly relevant to that conclusion.

First, in Sheehan v. Apling , 227 Or. 594, 597-98, 363 P.2d 575 (1961), the court held that an agent's negligence is not imputed to a principal where the agent has injured the principal. In that case, the plaintiff and the defendant were involved in a car accident. At the time of the accident, the defendant was driving the plaintiff's truck. The court assumed that the defendant was the plaintiff's agent for purposes of controlling and operating the truck. The defendant collided with another car, injuring the plaintiff, and the plaintiff filed a negligence action against the defendant. The defendant moved for a directed verdict, and the trial court granted the motion.

On appeal, the defendant made essentially the same argument that defendant makes in this case. According to the defendant,

"the right of control as understood in the law of agency is decisive in his favor. [Defendant] reasons thus: [Plaintiff] as owner had the right to control the vehicle, and therefore to control the driver. Right to control created an agency relationship.

Since a principal is responsible for the negligence of his agent, [plaintiff] is responsible for the accident. Since [plaintiff] is responsible (on principles of respondeat superior ), he cannot recover from his negligent agent.

Id. at 597, 363 P.2d 575.

The court rejected that argument. As the court explained, "[w]hatever the rule may be if a third person sues [plaintiff] on these facts, respondeat superior does not affect" the plaintiff's rights against the defendant. Id . According to the court,

" '[i]n certain relationships the negligence of one person is imputed to another in favor of third persons. But a wrongdoer cannot by a fiction of law attribute his wrong-doing to the victim. In the typical instances of imputed negligence, those of master and servant and principal and agent, the negligence of a servant or agent is not imputed to the master or principal so as to prevent

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