Ridgeway v. Whisman

• Court: Georgia Court of Appeals
• Writing for the Court: ANDREWS; POPE
• Citation: Ridgeway v. Whisman, 435 S.E.2d 624, 210 Ga.App. 169 (Ga. App. 1993)
• Decision Date: 03 September 1993
• Docket Number: No. A93A0891,A93A0891
• Parties: RIDGEWAY et al. v. WHISMAN et al.

Page 624

435 S.E.2d 624

210 Ga.App. 169

RIDGEWAY et al. v. WHISMAN et al.

No. A93A0891.

Court of Appeals of Georgia.

Sept. 3, 1993.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Rodney S. Shockley, Marietta, for appellants.

Greer, Klosik & Daugherty, Richard G. Greer, Atlanta, Robert F. Webb, Kris K. Skaar, Marietta, for appellees.

ANDREWS, Judge.

The natural parents of Linda Whisman sued Victoria Ridgeway for the wrongful death of their daughter, Linda, who was killed in an automobile accident while driving Ridgeway's car. ¹ The trial court denied Ridgeway's motion for summary judgment, and we granted her application for this interlocutory appeal.

At about 2:00 a.m. on the day prior to the fatal accident, the decedent, Whisman, age 22, and Ridgeway began consuming beer and other alcoholic beverages. They each consumed six or seven beers at Whisman's residence prior to being driven by a friend to a bar at about 7:00 p.m., where they continued to drink, and Whisman consumed more beer and some mixed drinks. They left the bar together at about 2:00 a.m., and the same friend drove them back to Whisman's residence, at which time Whisman became upset because her fiance was not there. At about 3:00 or 4:00 a.m. Whisman, who had the keys to Ridgeway's car from having driven it earlier the previous day, stated she was going, with or without Ridgeway, to look for her fiance. Ridgeway testified on deposition that, because of the alcohol they had consumed, neither she nor Whisman was in any condition to drive an automobile. After Ridgeway unsuccessfully attempted to dissuade Whisman, she nevertheless allowed Whisman to drive her car, and accompanied her as a passenger. At about 4:40 a.m., evidence shows Whisman lost control of the car, as the result of her own driving, or the negligence of an alleged "John Doe" driver of another car, or both, and drove off the road. In the ensuing crash, Whisman died, and Ridgeway was injured.

The action against Ridgeway is based on the theory that Ridgeway negligently entrusted her automobile to Whisman, who she knew to be intoxicated, and that Ridgeway's negligence in so doing was a proximate cause of Whisman's death. It is well settled that one who negligently entrusts an automobile to a noticeably intoxicated driver, may be held liable for injuries to third parties caused by the intoxicated driver's negligent operation of the automobile. "[A] person who entrusts a motor vehicle to an incompetent driver who is likely to cause injury to others through its use is liable for any damages resulting therefrom, and this principle has generally been applied to cases where one entrusts a vehicle to another who he knows, or should know, is intoxicated...." Jones v. Cloud, 119 Ga.App. 697, 699, 168 S.E.2d 598 (1969); Crisp v. Wright, 56 Ga.App. 338, 341, 192 S.E. 390 (1937). We are not, however, aware of any Georgia cases where one who negligently entrusts an automobile to a voluntarily intoxicated person has been held liable for injuries to the entrustee resulting from the entrustee's negligent operation of the automobile.

The conduct of one who voluntarily becomes intoxicated is measured by the same standards as those applicable to a sober person. Shuman v. Mashburn, 137 Ga.App. 231, 233-234, 223 S.E.2d 268 (1976). Thus, for purposes of determining Whisman's negligence or contributory negligence in causing the fatal accident, any condition, disability or incompetence which was produced by her voluntary intoxication may be disregarded, and her operation of the vehicle judged as if she was in possession of her normal mental and physical capacities. Id. Contributory negligence, which acts as a bar to a plaintiff's right of recovery, is comprised of two distinct defenses: (1) at all times a plaintiff must use ordinary care for his own safety, and must not, by his own negligence, be the sole proximate cause of his own injuries, and (2) a plaintiff must use ordinary care to avoid the defendant's negligence when such negligence is apparent or should in the exercise of ordinary care be apparent to him. Whatley v. Henry, 65 Ga.App. 668, 674, 16 S.E.2d 214 (1941). The liability of the owner in a negligent entrustment action does not result from imputing the negligence of the incompetent driver to the owner, rather "[n]egligent entrustment of a motor vehicle to an incompetent driver is an independent wrongful act of the vehicle's owner which is a concurrent, proximate cause of injury when it...