Greene v. Jenkins

• Decision Date: 14 February 1997
• Docket Number: No. A96A1851,A96A1851
• Citation: 224 Ga.App. 640,481 S.E.2d 617
• Parties: , 97 FCDR 637 GREENE v. JENKINS et al.
• Court: Georgia Court of Appeals

Page 617

481 S.E.2d 617

224 Ga.App. 640, 97 FCDR 637

GREENE v. JENKINS et al.

No. A96A1851.

Court of Appeals of Georgia.

Feb. 14, 1997.

Ralph L. Phillips, for appellant.

Cannon, Meyer von Bremen & Meier, Michael S. Meyer von Bremen, Albany, for appellees.

SMITH, Judge.

In March 1991, John Greene, Jr. and Michael Byrd met at a nightclub in Albany Georgia. Sometime that night, or during the early hours of the next morning, they left the club together in a Jeep that belonged to Byrd's mother and stepfather, Sandra and Jerry Jenkins. The Jeep was involved in an accident. ¹ Greene brought this action against Jerry and Sandra Jenkins, alleging that they negligently entrusted their vehicle to Byrd, knowing he had been drinking and was exhausted, and that their negligence caused him to suffer injuries when the vehicle struck a tree. In two amended complaints, Greene also alleged that Byrd was an agent or family member of the Jenkinses and that his negligence was imputed to them as principals. Greene and Byrd each claimed that he was a passenger in the Jeep and that the other was driving. ² The trial court granted summary judgment to the Jenkinses, concluding that Greene could not recover under a negligent entrustment theory and that the Jenkinses were not liable under the family purpose doctrine. This appeal ensued.

1. Greene enumerates as error the trial court's conclusion that he could not recover against the Jenkinses under a negligent entrustment theory. This doctrine provides that "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. [Cits.]" (Emphasis supplied, footnote omitted.) Gunn v. Booker, 259 Ga. 343, 347(3), 381 S.E.2d 286 (1989). Here, Greene did not claim that the Jenkinses had knowledge of a "habit of recklessness" but sought imposition of liability on a theory that Byrd's mental condition caused him to be incompetent to drive. It was therefore incumbent on Greene to show that the Jenkinses had actual knowledge that Byrd was incompetent to drive due to intoxication and/or exhaustion. See Bragg v. Over & Under Gen. Contractors, 148 Ga.App. 227, 228-229(2), 251 S.E.2d 1 (1978).

Construed in Greene's favor, evidence was presented that Byrd and the Jenkinses went out to dinner, to a country club, and to a nightclub in Albany known as "P-2" upon Byrd's surprise return earlier that day from two years of military service in Germany. Ms. Jenkins testified that she and her husband left with friends a short time after they arrived at P-2, while Byrd stayed on and visited with his own friends, including Greene. With Mr. Jenkins's acquiescence, she left their Jeep keys with Byrd. Although Ms. Jenkins knew that Byrd had drunk two beers before they went to P-2, she did not know whether Byrd had ordered drinks at P-2 because he sat at another table with friends. Ms. Jenkins's unequivocal affidavit testimony was that at the time she gave Byrd keys to the Jeep, he "did not appear in any way to be incapable of driving safely."

Also, Greene was not present when Ms. Jenkins gave Byrd the Jeep keys, and he admitted that he was not aware of Byrd's condition at that time. Despite Greene's assertion that the Jenkinses knew that Byrd had "been drinking all night" because Ms. Jenkins "said so," he admitted that he had no evidence regarding the Jenkinses' knowledge of the amount of alcohol Byrd had that night. He further admitted that he had no knowledge that at the time Ms. Jenkins gave Byrd the keys Byrd was "so exhausted or tired that he would have been incapable of driving." In fact, Greene stated that he would not have ridden with Byrd if he believed that Byrd was too intoxicated or exhausted to drive, or if he thought that Byrd was an unsafe driver. Consequently, the evidence is uncontradicted that at the time Ms. Jenkins turned the Jeep keys over to Byrd, even though she knew he had been drinking, she did not have actual knowledge that he was incompetent to drive because of intoxication or exhaustion. Because it was incumbent on Greene to show actual knowledge that Byrd was incapable of driving, Greene's claim for negligent entrustment fails. Cotton v. Toole, 183 Ga.App. 547, 359 S.E.2d 368 (1987) (physical precedent only) (no evidence that entruster had actual knowledge of entrustee's state of intoxication at time of entrustment). See also Gunn v. Booker, supra, 259 Ga. at 346-347(3), 381 S.E.2d 286.

2. Greene also enumerates the trial court's conclusion that the Jenkinses were not liable under the family purpose doctrine. To impose vicarious liability on the owner of a vehicle for the alleged negligence of the driver of the vehicle under the family purpose doctrine, one must show four factors: (1) the non-negligent defendant has an interest in or control over the vehicle; (2) he or she made the vehicle available for family, rather than business, use; (3) the driver must be a member of the defendant's immediate household; and (4) the vehicle must have been driven with the defendant's permission or acquiescence. Wingard v. Brinson, 212 Ga.App. 640, 641(1), 442 S.E.2d 485 (1994). These factors "are necessary preconditions" to imposition of vicarious liability. Id. The trial court concluded that one of these preconditions was not satisfied--that Greene failed to establish that Byrd was a member of the Jenkinses' immediate household when the accident occurred. We agree.

Ms. Jenkins testified via affidavit that on March 23, 1991, the date of the accident, Byrd had just been discharged from the military. Between his June 1986 high school graduation and joining the armed services in May 1988, Byrd enrolled in Georgia Southern College, worked, and paid his own tuition. While working and attending college in Statesboro, he moved into his own home and rented it at his own expense. He removed all of his personal belongings from the Jenkinses' household. In September 1990, while Byrd was in the military, the Jenkinses and their two children then living at home moved from their Oak Hill Farms address where Byrd had lived until he graduated from high school into a home on Archie Way in Leesburg, where they resided when the accident occurred. That home had three bedrooms, all fully occupied by Mr. and Mrs. Jenkins and their two younger children. Byrd never had a room at that residence. Ms. Jenkins further testified that she considered Byrd "in 1991 and earlier to be independent and not subject to my management and control nor that of his step-father, Jerry Jenkins." She stated that "Byrd never lived or resided in the home located at Archie Way and was not considered a member of our household at that address." She also testified that "[o]n the day before the incident of concern in this lawsuit, Michael Byrd came to our house to visit. He did not come to live or reside." Ms. Jenkins's daughter similarly testified via affidavit that Byrd never lived at the Archie Way address and was not a part of the immediate household.

Although the...