Liddy v. Hames, 71080

• Decision Date: 22 January 1986
• Docket Number: No. 71080,71080
• Citation: 339 S.E.2d 778,177 Ga.App. 517
• Parties: LIDDY v. HAMES et al.
• Court: Georgia Court of Appeals

Page 778

339 S.E.2d 778

177 Ga.App. 517

LIDDY v. HAMES et al.

No. 71080.

Court of Appeals of Georgia.

Jan. 22, 1986.

Guy G. Michaud, Atlanta, for appellant.

J.M. Hudgins IV, Atlanta, Dale T. Martin, for appellees.

BENHAM, Judge.

Appellant brought suit against Hames and Britt after being injured when a car in which she was a passenger collided with Britt's car, which was being driven by Hames. The grounds of liability asserted by appellant against Britt were negligent entrustment, respondeat superior, and the family purpose doctrine. In her deposition, Britt denied that Hames had ever had permission to use her car, that Hames was living with her at the time of the collision, and that Hames was driving as her agent when the collision occurred. Hames testified on deposition that although he had once lived with Britt, he lived elsewhere at the time of the collision; that he had borrowed the car on the occasion of the collision without checking with Britt, who was asleep when Hames took the car, but that they had an understanding that he could use her car when he wanted to; and that he was using the car on that occasion for his own purposes. In opposition to Britt's motion for summary judgment, appellant submitted an affidavit in which Hames swore that he was "staying" with Britt at the time and had standing permission to use her car. Appellant argues on appeal that the conflict in the testimony rendered summary judgment for Britt erroneous.

1. " '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 concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. [Cits.]" ' " Collins v. Everidge, 161 Ga.App. 708, 710, 289 S.E.2d 804 (1982). Appellant points to no evidence whatsoever that Britt had any knowledge that Hames was not a safe driver, and our review of the entire record has revealed none. Summary judgment on appellant's negligent entrustment claim was properly granted to Britt.

2. Appellant's assertion of liability on the basis of respondeat superior is likewise without support in the record. " 'Ownership of the vehicle alone is insufficient to establish liability on the part of the owner.' [Cit.]" Shmunes v. Gen. Motors Corp., 146 Ga.App. 486 (3), 246 S.E.2d 486 (1978). The unrefuted evidence in this case is that Hames was using Britt's car for his own purposes, not Britt's, when the collision occurred. "The existence of...