JACOB LOGAN v. MIRZA YOUNUSBAIG

• Court: Court of Appeals of Georgia
• Decided: October 26, 2022
• Docket: A22A1154
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., GOBEIL and LAND, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

October 26, 2022

In the Court of Appeals of Georgia A22A1154. LOGAN et al. v. YOUNUSBAIG et al.

GOBEIL, Judge.

This appeal arises from a lawsuit and countersuit filed after a car accident

between a vehicle being driven by Jacob Logan (“Logan”) and one that was stopped

on the highway but otherwise was being driven by Salamullah Baig Mirza

(“Sallamulah”) that resulted in the death of Salamullah’s mother and passenger, Iqbal

Banu (“Banu”). Mirza Younusbaig (“Mirza”), individually and as administrator of

Banu’s estate, sued Logan and his employer, IQVIA, Inc., for negligence. Logan

countersued Mirza under the theories of family purpose doctrine and negligent

entrustment of the vehicle to Sallamullah. The trial court granted summary judgment

to Mirza on both of these issues. Logan and IQVIA have appealed, arguing that the

trial court erred in granting summary judgment to Mirza on the issues of (1) negligent entrustment; and (2) the family purpose doctrine. For the reasons set forth below, we

affirm in part (negligent entrustment) and reverse in part (the family purpose

doctrine) the ruling of the trial court.

“We apply a de novo standard of review to an appeal from the grant of

summary judgment, viewing the evidence and all reasonable conclusions and

inferences drawn from it in favor of the opponent of summary judgment.” Wentworth

v. Eckerd Corp., 248 Ga. App. 94, 94 (545 SE2d 647) (2001). So viewed, the record

shows that on August 5, 2019, Salamullah was driving a Toyota Camry that was

purchased for him by his father, Mirza. Salamullah was driving his mother, Banu,

home from a family gathering. The accident occurred on Georgia 400 Southbound at

approximately 1:10 a.m. Salamullah stopped his car in the left lane of the highway.

He later told police that his rear bumper was coming off and he needed to stop the car

to address the situation. As the car was pulled over, it was partially blocking the left

lane of the highway.

Logan was driving in the left lane of the highway, using his cruise control. He

crashed into Salamullah’s vehicle within that lane. Banu was still in the vehicle at the

time of the crash, suffered fatal injuries, and was declared dead at the scene. Logan

2 complained of injuries and was transported to a hospital. Salamullah was charged

criminally in connection with the accident.

Mirza, as Banu’s surviving spouse and administrator of her estate, sued Logan

and IQVIA, alleging that Logan was negligent in the operation of his vehicle and was

acting within the scope of his employment with IQVIA at the time of the crash. The

parties engaged in discovery, and Logan raised counterclaims against Salamullah, as

the negligent driver, and Mirza, as a person who exerted control over the vehicle

through his relationship with Salamullah.

Mirza moved for summary judgment on Logan’s claims of negligent

entrustment and family purpose doctrine. Logan filed a cross-motion for summary

judgment on the family purpose doctrine, but argued that the evidence at least raised

questions of fact for a jury on the negligent entrustment claim. The trial court granted

summary judgment to Mirza, finding first that Logan had not established the elements

of a negligent entrustment claim because (1) the evidence showed that Mirza did not

own the vehicle at the time of the accident, and (2) there was no evidence that

Salamullah had a pattern of reckless driving and Mirza was not aware and could not

have been aware of a pattern of reckless driving. As to the family purpose doctrine,

3 the trial court found that the evidence did not demonstrate that Mirza had authority

and control over the vehicle owned and driven by Salamullah. This appeal followed.

1. Taking Logan’s claims out of order, he asserts that the trial court erred in

granting summary judgment on the issue of Mirza’s negligent entrustment of the

vehicle to Salamullah. We disagree.

“In a negligent entrustment claim, liability arises from the negligent act of the

owner in lending his automobile to another to drive, with actual knowledge that the

driver is incompetent or habitually reckless.” McManus v. Taylor, 326 Ga. App. 477,

480 (1) (756 SE2d 709) (2014) (citation omitted).

Pretermitting Logan’s first argument about whether the trial court erred in

stating that Mirza’s ownership of the Camry was a prerequisite to a negligent

entrustment claim, we affirm the trial court’s summary judgment in part because we

conclude that Logan’s evidence did not raise a triable issue of fact concerning

Mirza’s knowledge of any incompetence or recklessness in Salamullah’s use of the

vehicle. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407)

(2013) (we may affirm the grant of summary judgment if it is “right for any reason”).

In order to defend Mirza’s motion for summary judgment on the negligent

entrustment theory of liability, Logan was required “to show that [Mirza] had actual

4 knowledge of a pattern of reckless driving or facts from which such knowledge could

be reasonably inferred in order to preserve the issue for jury determination.” Worthen

v. Whitehead, 196 Ga. App. 678, 678 (396 SE2d 595) (1990) (citation and

punctuation omitted).

As to actual knowledge, Mirza testified that he believed that Salamullah had

never been involved in a car accident nor had any moving violations, either in India

where Salamullah learned to drive, or since the family’s move to Georgia. Mirza had

been a passenger in the car with Salamullah many times, and believed that Salamullah

was a safe driver. If Mirza believed that Salamullah was unsafe, he would not have

allowed him to drive. Additionally, Salamullah’s driving history is in the record and

shows that Salamullah had never been in an accident or received a citation.

Logan argues that Salamullah’s invoking the Fifth Amendment in response to

questions about his driving history in his first deposition (when he was still facing

criminal charges in connection with the accident) creates implied admissions that he

had a negative driving history. However, Logan does not provide authority suggesting

that an implied admission by Salamullah can be imputed onto the actual or inferred

knowledge of Mirza. Instead, Logan relies upon Perez v. Atlanta Check Cashers, Inc.,

which states

5 in a civil case, if a witness invokes the privilege against self-incrimination and refuses to answer a question concerning whether he or she committed a particular act, it creates an implied admission that a truthful answer would tend to prove that the witness had committed the act.

302 Ga. App. 864, 870 (692 SE2d 670) (2010) (citation and punctuation omitted;

emphasis supplied). Thus, although Salamullah’s refusal to state whether he had to

take portions of the driving test multiple times or had any prior accidents or moving

violations may be considered admissions that Salamullah had a poor driving history,

nothing in those admissions shows that Mirza had actual knowledge of any negative

driving history. See May v. Phillips, 157 Ga. App. 630, 631 (2) (278 SE2d 172)

(1981) (even if plaintiff shows that driver was in fact an incompetent and reckless

driver, he must also make a showing that the defendant had actual knowledge that

driver was a reckless and incompetent driver). And even Salamullah’s invocation of

the privilege in response to questions regarding his father’s knowledge of his driving

history still does not impute such knowledge to Mirza. Perez, 302 Ga. App. at 870.

Mirza did not refuse to answer the question as to his knowledge of Salamullah’s

driving history, and he answered definitively that he knew and believed that

Salamullah was a safe driver with no negative history.

6 Thus, given the lack of evidence that Mirza had actual knowledge that

Salamullah was a reckless driver, and given the direct evidence to the contrary, we

conclude that the trial court correctly granted summary judgment to Mirza on any

claim grounded in negligent entrustment, and affirm the trial court’s order in part.

2. Logan next argues that the trial court erred in granting summary judgment

on his claim that Mirza is vicariously liable for Salamullah’s use of the Camry under

the family purpose doctrine. We agree.

“The family purpose doctrine states that when an automobile is maintained by

the owner for the use and convenience of his family, such owner is liable for the

negligence of a member of the family having authority to drive the car while it is

being used for a family purpose.” Bailey v. Butler, 199 Ga. App. 753, 754 (406 SE2d

97) (1991) (citation and punctuation omitted).

To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner[1] 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

1 Although the word “owner” is used here, the Supreme Court has clarified that “owner” in this context means “one who owns an auto, controls its use, has some property interest in it, or supplies it.” Tolbert v. Murrell, 253 Ga. 566, 568 (2) (322 SE2d 487) (1984). So the Camry being registered in Salamullah’s name is not fatal to Logan’s claim.

7 family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose.

Id. (citation and punctuation omitted). “These factors are not determinative of

vicarious liability but are necessary preconditions. Georgia courts have used authority

and control as the principal factor in determining whether liability accrues under the

doctrine.” Jackson v. Reed, 229 Ga. App. 433, 434-435 (494 SE2d 52) (1997)

(citation and punctuation omitted). Thus, the key question is whether Mirza “had the

right to exercise such authority and control that it may be concluded that an agency

relationship existed between him and [Salamallah] with respect to the use of the

vehicle.” Bailey, 199 Ga. App. at 754 (citation and punctuation omitted).

Here, evidence in the record shows that Mirza purchased the Camry for

Salamullah, paid for its insurance and maintenance, and routinely supplied gas money

for its use. Salamullah lived at home with his parents and other family members, and

Mirza described that his son would request permission when he was going out and

would inform his parents of his comings and goings. Salamullah did not specifically

pay rent or expenses, but gave his father the money he earned at his job.

As for the use of the car, Mirza never drove the Camry, but rode with

Salamullah in the car many times. Mirza stated that he believed Salamullah was a safe

8 driver and that if Mirza believed that Salamullah was unsafe, he would not have

allowed him to drive. Banu did not drive, so Salamullah often would drive her for

errands. On the night of the accident, Salamullah was driving his mother home from

a family gathering because his father, who drove Banu to the gathering, had to leave

for work.

This evidence, when construed in Logan’s favor, raises questions of fact

concerning whether Mirza is liable for his son’s negligence in operating the Camry

on the night of the accident. Unlike the facts presented in Bailey, supra, where “the

undisputed evidence established that [the parent] did not have the requisite authority

and control over [child’s] use of the vehicle,” Mirza here described a family dynamic

in which Mirza had the authority to control Salamullah’s use of the vehicle; for

example, to drive his mother for errands, to grant or deny permission to go out, or to

remove his access to the vehicle if necessary for his safety.

Further, testimony that Salamullah provided his earnings to his father and

generally submitted to his father’s authority shows that Mirza potentially exerted the

type of control over Salamullah that would make him liable for Salamullah’s actions.2

2 We acknowledge that, after his deposition, Mirza prepared an affidavit stating that he exerted no control over Salamullah’s use of the Camry. However, as argued by Logan, “[t]he Prophecy rule requires trial courts, when considering summary

9 Although Salamullah provided deposition testimony to the contrary about Mirza’s

control and authority over his use of the car, such contradiction supports our

conclusion that there remains a question of material fact that is for a jury to consider.

We agree with Logan that Murch v. Brown, 166 Ga. App. 538 (304 SE2d 750)

(1983), is controlling in the instant case, as the facts are analogous. In Murch, the

defendant father co-signed the financing for the purchase of an automobile with his

daughter, although the daughter stated that she provided the funds for the purchase

and paid for its upkeep. Id. at 540. Similarly, here, Mirza described that he purchased

the vehicle for Salamullah and paid for its expenses, but Salamullah regularly

provided his father the money he earned at his job. The daughter in Murch was living

at home, working full time, and “subject to her parents’ general supervision.” Id. at

539-540. This living situation is similar to the one described by Mirza. In Murch, the

daughter was the only person to drive the vehicle, and was en route to give her

judgment motions, to (1) eliminate all portions of a party’s self-contradictory testimony that are favorable to, and left unexplained by, that party; and (2) consider the remaining evidence in favor of the party opposing summary judgment.” Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000) (citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (343 SE2d 680) (1986)). Thus, Mirza’s affidavit cannot serve as the basis for summary judgment in his favor, as it directly contradicts other testimony he provided that his son was under his authority and control and that he had the authority to take the car away if he believed Salamullah was an unsafe driver.

10 brother a ride home at the time of the accident. Id. Here, Salamullah was the only

person to drive the vehicle, and he was driving his mother home at the time of the

accident. In Murch, both the father and the daughter averred that the father exercised

no authority or control over the vehicle. Id. at 540. And here, Mirza averred and

Salamullah testified that Mirza did not control Salamullah’s use of the vehicle.

In Murch, we affirmed the trial court’s denial of summary judgment as to

whether the father was liable under the family purpose doctrine, concluding that the

evidence as stated created a genuine issue of fact as to whether the father was liable.

Id. We find that the same conclusion is required here, because the evidence creates

a question of fact as to Mirza’s control and authority over Salamullah’s use of the

vehicle. See also Clifton v. Zemurray, 223 Ga. App. 756, 757-759 (478 SE2d 897)

(1996) (reversing summary judgment on family purpose doctrine claim where son

was gifted a vehicle by his grandparents but lived with his parents, who paid for its

registration and some of its upkeep; son testified that his step-father could take away

his access to the vehicle if the step-father believed his son was an unsafe driver).

Mirza relies on Yim v. Carr, 349 Ga. App. 892, 896-897 (1) (a) (827 SE2d 685)

(2019), where we found that the parents were not liable under the family purpose

doctrine as a matter of law. However, our conclusion in that case was based on

11 affirmative evidence that the parents “considered the car to belong to [the child] and

did not feel that they could deprive her of its use.” Id. at 896 (1) (a). And, although

the plaintiff argued in Yim that the child was subject to the parents’ general authority

because she lived at home, the plaintiff failed to support that argument with record

evidence. Id. In contrast to Yim, the instant case includes evidence that Mirza

believed he had the authority to take away Salamullah’s access to the vehicle, and

control in some way its use. See id. (noting that Yim was distinguishable from other

cases “where there was some evidence that the parent had authority to restrict, or did

in fact restrict, the child’s use of the vehicle for violating household rules”).

Thus, because it is not disputed that Mirza provided a vehicle for Salamullah,

a member of his immediate family, who was using it for a family purpose at the time

of the accident, and because a jury could infer that Mirza had control and authority

over Salamullah and his use of the vehicle, we reverse the trial court’s order in part

as to its grant of summary judgment on this issue.

Judgment affirmed in part and reversed in part. Land, J., concurs. McFadden,

P. J., concurs fully in part and specially in part.

12 In the Court of Appeals of Georgia A22A1154. LOGAN et al. v. YOUNUSBAIG et al.

MCFADDEN, Presiding Judge, concurring fully in part and specially in part.

I concur fully in the judgment and in all of the majority opinion except note 2,

which addresses the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27,

28-30 (1) (343 SE2d 680) (1986).

I agree that there is sufficient evidence to authorize a jury to find applicable the

family purpose doctrine. As the majority explains, the evidence of Mirza’s authority

and control over his 22-year-old son Salamullah’s person was sufficient to satisfy the

family purpose doctrine. This is so whether or not the Prophecy rule applies to

exclude Mirza’s affidavit testimony because, even if considered, that testimony must be construed alongside all other evidence in the light most favorable to the

nonmovants.

But I am not persuaded that the affidavit testimony must be excluded under the

Prophecy rule. The affidavit testimony shows that both men viewed the vehicle as

belonging to Salamullah. It does not necessarily contradict Mirza’s testimony

establishing his general authority and control over Salamullah, which is dispositive

of the issue before us. See T & T Transp. v. Duckworth, 361 Ga. App. 882, 884 (864

SE2d 181) (2021) (“For purposes of the Prophecy rule, testimony is contradictory if

one part of the testimony asserts or expresses the opposite of another part of the

testimony.”) (citation and punctuation omitted).

Moreover, the reason for the Prophecy rule is not implicated in this case. “[T]he

Prophecy rule is aimed at discouraging a party’s temptation to commit perjury during

a civil trial’s summary judgment phase[.]” Thompson v. Ezor, 272 Ga. 849, 852 (2)

(536 SE2d 749) (2000). I see no evidence here of such dishonesty or abuse.