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Dester v. Dester10/19/1999
*PLEASE NOTE: THIS IS A SUBSTITUTE OPINION.
Linda Dester appeals the grant of summary judgment to her husband, Danny Dester, on the ground of inter-spousal tort immunity. Louis Jenkins Construction, Inc., ("Jenkins Construction") cross-appeals the denial of its summary judgment motion on Linda Dester's claims of respondeat superior, negligent entrustment, and negligent hiring and retention of her husband. We affirm the grant of summary judgment to Danny Dester, and reverse the denial of summary judgment to Jenkins Construction.
This suit resulted from an automobile collision that occurred on a Saturday while Danny Dester was driving a truck owned by his employer , Jenkins Construction. Mr. Dester worked until noon, and then drove a co-worker home, sharing a six-pack of beer with him. Mr. Dester then spent a few hours doing yardwork at his house. He and his family, which included his wife, Linda Dester, their daughter, and Bobbi Johnson, Mrs. Dester's daughter from another marriage, went out to dinner that evening, and the Desters each had two margaritas with their meal. As Mr. Dester was driving his family home, he passed two slower-moving vehicles. He was almost clear of the second car when it turned left and clipped the rear of his truck. The vehicle spun out of control and flipped, ejecting Mrs. Dester and the two children. Bobbi Johnson died, the Desters' daughter suffered a broken arm, and Mrs. Dester was seriously injured. Mr. Dester's blood alcohol level was .19 after the wreck.
Mrs. Dester sued her husband and the driver of the car that turned into the truck for personal injuries, and sued Jenkins Construction as her husband's employer and the truck's owner. The trial court granted summary judgment to Mr. Dester, and denied summary judgment to Jenkins Construction.
Under OCGA § 9-11-56 (c), summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant or denial of summary judgment de novo, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the non-movant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996). Case No. A99A0930
Mrs. Dester raises four arguments challenging the inter-spousal tort immunity doctrine. She claims that the doctrine is unconstitutional; that a Georgia Supreme Court case finding the wrongful death statute unconstitutional applies here; that since spouses can sue for property damage, they should be able to sue for personal injury ; and that since a child can sue a parent for willful and wanton misconduct, spouses should be able to do so too.
a. Mrs. Dester first argues that prohibiting inter-spousal tort suits against spouses who have been willfully and wantonly negligent violates the Equal Protection Clauses of the U.S. and Georgia Constitutions. However, this contention is controlled adversely by Georgia Supreme Court cases affirming the constitutional validity of the inter-spousal tort immunity. See Harris v. Harris, 252 Ga. 387 (1) (313 SE2d 88) (1984); Robeson v. International Indem. Co., 248 Ga. 306, 307 (1) (282 SE2d 896) (1981).
In Robeson, the Georgia Supreme Court found no equal protection violation in the alleged discrimination resulting from the doctrine of inter-spousal immunity. Robeson, supra, 248 Ga. at 307. The Court reviewed with approval other jurisdictions' holdings that found "a reasonable relationship to the promotion of domestic tranquility interest sought to be furthered by it," and noted "the doctrine applies to husbands as well as wives." (Citations and punctuation omitted.) Id. at 307-308. We are bound by the decisions o
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