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Marshall v. Whaley6/30/1999
Ba-008
Linda Marshall appeals the grant of summary judgment to Kenneth W. Whaley on her claims against him under the family purpose and negligent entrustment doctrines. After she was involved in an automobile accident with Thomas Eric Whaley, Marshall filed suit against Thomas Eric Whaley and his father, Kenneth W. Whaley. Marshall's complaint alleged that Kenneth Whaley was liable for his son's actions because he provided a family purpose vehicle to his son, and he entrusted the vehicle to his son with knowledge of his son's tendency to drive while intoxicated. The case against Thomas Whaley remains pending below.
Marshall contends the grant of summary judgment to Kenneth Whaley was not authorized because issues of fact remain for trial. We disagree and affirm.
Viewing the evidence and all inferences and Conclusions most favorably toward Marshall and giving her the benefit of all reasonable doubts, the evidence shows that this case arose from a collision between Marshall's vehicle and a pickup truck driven by Thomas Whaley. Thomas Whaley pleaded guilty to driving under the influence at the time of the collision.
Although Kenneth Whaley held the legal title to the pickup truck driven by his son and provided insurance coverage on the pickup, he bought the pickup for Thomas Whaley while his son was in high school. Thomas Whaley testified that he had owned the pickup truck since he was 16. Additionally, Thomas Whaley paid his father for the insurance. More significantly, Thomas Whaley had exclusive use of the pickup and his father did not have a key to the truck. Kenneth Whaley denied that he gave his son permission to use the pickup and also denied that he maintained the pickup for the use of his family. Thomas Whaley denied that he was operating the truck with his father's permission, denied that he was not the owner of the truck, and denied that he had the keys to the truck with the permission of his father.
After high school, Thomas Whaley worked for a year, served an enlistment in the Navy, and then returned home. While he was in the Navy, no one drove the pickup, and the car stayed in Kenneth Whaley's garage. At the time of the collision Thomas Whaley was 23 and resided off and on with his parents.
1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and Conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). Further, when reviewing a grant of summary judgment, this court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).
2. Under the undisputed facts of this case, Kenneth W. Whaley cannot be liable under the family purpose doctrine.
"To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle's owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose." (Citation and punctuation omitted.) Walston v. White, 213 Ga. App. 441, 442 (444 SE2d 855) (1994).
The actual test, however, is the authority and control of the vehicle by the person alleged to have provided the vehicle. Gould v. Latorre, 227 Ga. App. 32, 34 (3)
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