Sowell v. Solomon
| Decision Date | 22 February 2022 |
| Docket Number | A21A1720 |
| Citation | 362 Ga.App. 717,870 S.E.2d 39 |
| Parties | SOWELL et al. v. SOLOMON et al. |
| Court | Georgia Court of Appeals |
Jennifer Lauren Nichols, Atlanta, Douglas Lee Clayton, for Appellant.
Andrew Timothy Rogers, Naveen Ramachandrappa, Atlanta, Stephen Mark Ozcomert, Decatur, for Appellee.
In 2017, Brandon and Linda Sowell's (collectively, the "Defendants") minor son was involved in a bicycle collision that resulted in the death of Timothy Solomon ("Solomon"). Solomon's widow filed a personal injury suit against the Defendants, and the Defendants now appeal from the trial court's order denying their motion for summary judgment. In that order, the trial court found that questions of fact exist as to whether the Defendants are liable under the theories of negligent entrustment, negligent supervision, and negligent training and instruction. The crux of the Defendants’ contention on appeal is that based on existing precedent, parents cannot be held liable as a matter of law for "furnishing a child a bicycle who then rides it unsupervised, is involved in an accident[,] and causes injury and damages to another." Although we disagree with the breadth and scope of the Defendants’ assertion, we agree that reversal is warranted under the specific facts of this case, as explained below.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In reviewing the denial of a summary judgment motion, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.
Yim v. Carr , 349 Ga. App. 892, 893 (1), 827 S.E.2d 685 (2019) (citations and punctuation omitted). So viewed, the record shows that on April 15, 2017, at approximately 4 p.m., the Defendants’ then 10-year-old son, P. S., was riding a bicycle1 in the City of Avondale Estates when he collided with the bicycle that Timothy Solomon ("Solomon") was riding. P. S. described that he had been riding his bicycle on the sidewalk on his way home along Lakeshore Drive, when he attempted to cross the roadway to meet up with his friend on the other side of the street. As P. S. was "[s]tanding up on the pedals" of his bicycle with his hands on the brakes, he tried to look out for oncoming traffic, but his view was obstructed by parked cars on both sides of the street. Specifically, he could not see through the tinted windows of a parked SUV to his left. After P. S. entered the roadway, he suddenly saw Solomon riding towards him. Solomon yelled "Stop," and P. S. complied. In a matter of seconds, the front wheel of Solomon's bicycle collided with the front wheel of P. S.’s bicycle, and the impact of the collision caused Solomon to veer into a parked car and fall to the ground. As a result of the accident, Solomon sustained a head injury
that led to his death a few days later.
Sandra G. Solomon, individually as Solomon's wife and as Administrator of the Estate of Timothy James Solomon ("Plaintiff"), sued the Defendants,2 alleging claims of negligent entrustment (for providing a bicycle to P. S., who was not competent to safely ride a bicycle on a public roadway), negligent supervision (for failing to supervise P. S. as he rode a bicycle on a public roadway), and negligent instruction and training (for failing to properly instruct and train P. S. on the rules of the road as it related to bicycle safely on a public roadway). The Defendants moved for summary judgment,3 which the trial court denied as to liability.4 The court found in relevant part:
The court therefore reasoned that Plaintiff's claims stemming from the Defendants’ furnishing P. S. with a bicycle to ride on a public roadway were best left to the jury, as there remained contested issues of fact as to whether the Defendants (1) exercised ordinary care to anticipate and guard against P. S.’s potential misuse of the bicycle; (2) were negligent in allowing P. S. to ride his bicycle without supervision; and (3) provided P. S. with adequate training and instruction in bicycle safety given the circumstances present in this case. The trial court issued a certificate of immediate review. We granted the Defendants’ application for interlocutory review, and this appeal followed.
"It is well settled in this state that parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship." Smith v. Brooks , 247 Ga. App. 831, 832, 545 S.E.2d 135 (2001) (citation and punctuation omitted). See also Phillips v. Dixon , 236 Ga. 271, 272, 223 S.E.2d 678 (1976) (); Kitchens v. Harris , 305 Ga. App. 799, 800, 701 S.E.2d 207 (2010) (same). Rather, OCGA § 51-2-2, a version of which has appeared in every Georgia code since 1863, sets out the circumstances under which a parent is liable for a child's torts, providing:
Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business , whether the same are committed by negligence or voluntarily.
(Emphasis supplied.) Parents’ duty to control their minor children is expressed in the Restatement (Second) of Torts § 316 as follows:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from ... so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.
Historically, therefore, "unless the parent participated in the minor's tort, or through negligence caused or permitted the tort to occur, courts often absolved parents from liability, unless some other relationship, such as that of principal and agent, or master and servant, existed between parent and child." Guzman v. Link , 354 Ga. App. 463, 467 (2), 841 S.E.2d 203 (2020) (citation and punctuation omitted).
"Parents may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others." Boston v. Athearn , 329 Ga. App. 890, 893 (1), 764 S.E.2d 582 (2014). For example, an action has been permitted to proceed where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party. See e.g., Faith v. Massengill , 104 Ga. App. 348, 354 (2) (a), 121 S.E.2d 657 (1961) (air rifle), overruled on other grounds by Brady v. Lewless , 124 Ga. App. 858, 859, 186 S.E.2d 310 (1971) ; Herrin v. Lamar , 106 Ga. App. 91, 93-95 (2), 126 S.E.2d 454 (1962) (rotary lawnmower); Glean v. Smith , 116 Ga. App. 111, 112-114 (3), 156 S.E.2d 507 (1967) (pistol); McBerry v. Ivie , 116 Ga. App. 808, 810-811, 159 S.E.2d 108 (1967) (shotgun). "In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child's use of the instrumentality." Corley v. Lewless , 227 Ga. 745, 748 (1), 182 S.E.2d 766 (1971).
1. As a starting point, the Defendants argue that the trial court erroneously distinguished Georgia precedent that precludes liability for the parental negligence claims in this action. In this regard, the Defendants point to Calhoun v. Pair , 197 Ga. 703, 30 S.E.2d 180 (1944), where the plaintiff brought an action against the defendant, alleging that plaintiff's 12-year-old son had been injured after being "r[u]n over" by a bicycle ridden by the defendant's 14-year-old son. Calhoun v. Pair , 71 Ga. App. 211, 30 S.E.2d 776 (1944). The plaintiff's complaint described:
That the defendant furnished the bicycle to his son for the specific purpose of giving the son transportation to and from his home and school, the school being considerable distance from his home, and the son was riding the bicycle with the father's approbation and was therefore the agent and/or servant of the defendant, acting with[in] the scope of his agency and/or employment at the time of the [occurrence] complained of in this suit.
Calhoun , 71 Ga. App. at 211, 30 S.E.2d 776 (punctuation omitted). The plaintiff further alleged that the defendant's child was riding his bicycle on the sidewalk within the limits of the City of Atlanta in violation of a city ordinance. Id. at 212, 30 S.E.2d 776. The trial court dismissed the suit on the basis "that no cause of action was set forth either at law or in equity." Id. This Court certified the following questions to the Supreme Court of Georgia:
1. Is a father, who furnishes to his minor son (fourteen years of age) a bicycle for the purpose of using the same to go to and from school, liable to another in damages for injuries received by the other when such injuries are occasioned by the negligent and unlawful use of such bicycle by the minor son, and where such negligence is the proximate cause of the injury? 2. If the answer to the first question is in the affirmative, is such liability based on what is generally termed "the family purpose doctrine,"[5 ] or on some other principle of law?
Calhoun , 197 Ga. at 703, 30 S.E.2d 180 (punctuation omitted). The Justices were ...
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