Kitchens v. Harris

• Decision Date: 01 September 2010
• Docket Number: No. A10A1478.,A10A1478.
• Citation: 10 FCDR 2893,305 Ga.App. 799,701 S.E.2d 207
• Parties: KITCHENS et al. v. HARRIS et al.
• Court: Georgia Court of Appeals

701 S.E.2d 207

305 Ga.App. 799

10 FCDR 2893

KITCHENS et al.

v.HARRIS et al.

No. A10A1478.

Court of Appeals of Georgia.

Sept. 1, 2010.

Hall, Booth, Smith & Slover, Denise W. Spitalnick, Atlanta, for appellants.

Hilley & Frieder, Ronald L. Hilley, Mia I. Frieder, Atlanta, Samuel E. Earley, Jr., for appellees.

Sandra Verry, pro se.

Samantha Parden, pro se.

ANDREWS, Presiding Judge.

This case involves a suit for injuries suffered by Pamela Harris, the 14-year-old child of Melvyn and Rosalie Harris, who was injured while attending a birthday party for her friend, Shannon Kitchens (also age 14), at the residence where Shannon lived with her parents, Tony and Carol Kitchens. While the two girls, along with three other girlfriends of the same age, were left unsupervised at the party for less than an hour, Shannon obtained the key to her parents' all-terrain vehicle (ATV) located at the residence and drove it and provided it for use by her friends. Pamela was seriously injured as a passenger on the ATV when one of Shannon's friends drove it into a tree.

The Harrises, individually and as parents and next friends of Pamela, sued Tony and Carol Kitchens, Shannon Kitchens, and others, seeking recovery for Pamela's injuries. As to Tony and Carol Kitchens, the suit alleged that Pamela's injuries were proximately caused by their negligent failure to provide supervision at the party, and their negligent entrustment of the ATV to a minor child. We granted this interlocutory appeal to address the trial court's denial of the motion for summary judgment brought by Tony, Carol, and Shannon Kitchens. We reverse the denial of the motion as to the claims against Tony and Carol Kitchens because there is an absence of any evidence in the record to support the claims for negligent supervision or negligent entrustment. Although the motion for summary judgment was also brought by Shannon Kitchens, the motion addresses only the claims asserted against Tony and CarolKitchens. Accordingly, as to negligence or other claims asserted against Shannon Kitchens, we affirm the denial of the motion. OCGA §§ 51-11-6; 16-3-1.

Parents are not liable for the torts of their minor children merely on the basis of the parent-child relationship. Jackson v. Moore, 190 Ga.App. 329, 378 S.E.2d 726 (1989). Rather, parental liability may be based on a principal-agent relationship where the child's negligence is imputed to the parent, or may be based on circumstances where the parent negligently allows the child to have unsupervised control of a dangerous instrumentality. Id. There is no evidence that Shannon Kitchens acted on behalf of her parents when she obtained the ATV key and provided the ATV for use by her friends, so there is no basis for parental liability to arise from an agency relationship with the child. Parental liability in this case is based on the claim that Tony and Carol Kitchens negligently allowed their child, Shannon, to have unsupervised control of the ATV that she allowed her friends to use. In this case, "the question is whether the facts of the case impose upon the parent[s] a duty to anticipate injury to another through the child's use of the [ATV]." Corley v. Lewless, 227 Ga. 745, 748, 182 S.E.2d 766 (1971); Jackson, 190 Ga.App. at 329, 378 S.E.2d 726; Saenz v. Andrus, 195 Ga.App. 431, 432-433, 393 S.E.2d 724 (1990). This is not a case where parental liability could be based on evidence that a parent was negligent by expressly furnishing or permitting the child access to the dangerous instrumentality. Jackson, 190 Ga.App. at 329, 378 S.E.2d 726. There is no evidence that Tony or Carol Kitchens furnished the ATV to Shannon or permitted her to use it in their absence. The evidenceshows that the parents left the ATV key in a place where Shannon was able to obtain it and thereby use the ATV in their absence. Where there is no evidence that a parent furnished or permitted the child access to the dangerous instrumentality, but there is a claim that the parent negligently allowed the...