THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, 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. http://www.gaappeals.us/rules/
March 21, 2014
In the Court of Appeals of Georgia A13A2447. MCMANUS et al. v. TAYLOR.
A13A2499. JACKSON v. TAYLOR et al.
A14A0097. TAYLOR v. MCMANUS et al.
A14A0098. TAYLOR v. JACKSON.
MCMILLIAN, Judge.
These four related appeals arise out of a motor vehicle accident that occurred
in Burke County, Georgia on March 17, 2012. In Case No. A13A2447, Krystal
McManus, individually and as representative of the estate of Dustin Tyler Durham,
and Jessie Clyde Durham, individually, (collectively “McManus”) appeal the trial
court’s grant of summary judgment to defendant Eddie Taylor. In Case No.
A13A2499, David Allen Jackson, Jr. (“Jackson”) likewise appeals the trial court’s
grant of summary judgment to Eddie Taylor. In addition, defendant Freddie Taylor cross-appeals the trial court’s denial of his motion for summary judgment in both the
McManus and Jackson cases (Case Nos. A14A0097 and A14A0098, respectively).
Although these cases were not formally consolidated at the trial level, they involve
the same questions of fact and law, and each motion for summary judgment was ruled
on in a single order. Therefore, we will address them together on appeal.
We review the denial or grant of summary judgment de novo to determine
whether there exists a genuine issue of material fact and whether the undisputed facts,
viewed in the light most favorable to the nonmoving party, warrant judgment as a
matter of law. Johnson v. Bartley, 321 Ga. App. 59, 59-60 (741 SE2d 275) (2013).
So viewed, the evidence shows that in the early morning hours of March 17, 2012,
Robert William Taylor (“Billy”) drove a 2001 Pontiac Firebird (“Firebird”) to the
home of Krystal McManus. Shortly after arriving there, Billy, McManus’s son Dustin
Tyler Durham, Michael Collins, and Jackson decided to go for a ride in the Firebird.
There is evidence that Collins was in the front passenger seat, Jackson was in the
backseat behind Collins, and Durham was seated behind Billy, who was driving. Not
long after driving away from the McManus residence, Billy lost control of the vehicle
and crashed into a tree. As a result of the crash, Durham died of blunt impact head
trauma, and Jackson was paralyzed from the waist down. Billy was eventually
2 charged with vehicular homicide, driving under the influence, reckless driving, and
driving with a suspended license.
On March 30, 2012, Appellant Jessie Clyde Durham filed suit against Billy
Taylor. His complaint was later amended several times to add Krystal McManus as
a plaintiff and to add Taylor Brothers Auto Sales, Incorporated (“Taylor Brothers”),
Freddie Taylor, Eddie Taylor, Taylor Auto Shop, Inc., and Taylor Bros X-Press, Inc.
as additional defendants.1 Appellant Jackson filed suit one month later against Billy
Taylor, Taylor Brothers, Freddie Taylor, and Eddie Taylor.
Billy is the 24-year-old son of Freddie Taylor and nephew of Eddie Taylor.
Eddie Taylor is the CEO of Taylor Brothers, a local company that sells used cars in
Burke County. Freddie Taylor is the company’s CFO. For several years prior to the
accident, Taylor Brothers had authorized Billy to purchase cars at various auctions
using its dealer’s license. Once he purchased a vehicle, he gave Taylor Brothers the
right of first refusal to purchase it for resale. If Taylor Brothers chose not to purchase
1 Taylor Auto Shop, Inc. and Taylor Bros X-Press, Inc. are additional corporate entities run in various capacities by Eddie and/or Freddie Taylor. Neither is a party to this appeal.
3 a vehicle from Billy,2 he would resell it at another auction for profit. Billy had
purchased the Firebird involved in the accident at an auction in the name of Taylor
Brothers six months earlier. Freddie Taylor decided that he wanted to personally keep
the vehicle as a collector’s car, which he stored under cover in a barn on his personal
property, although the car remained titled in the name of Taylor Brothers. Eddie
Taylor was not aware that his brother had kept the car until he was told sometime
later. He saw the car only once, at his brother’s house, before the accident.
On March 15, 16, and 17, 2012, Freddie and Eddie Taylor were in Tybee
Island, Georgia, where they have a vacation home. On March 15, Trey Taylor, the
nephew of both Freddie and Eddie Taylor, called Freddie and asked if he could
borrow the Firebird to drive to Jackson, South Carolina to watch the drag races that
night. Freddie gave Trey permission to use the vehicle for the limited purpose of
going to the Jackson races only, with explicit instructions to return the car to his
house immediately upon returning from South Carolina that Thursday night. There
is no evidence that Eddie Taylor was aware of this conversation or knew that Trey
was borrowing the vehicle at all, and he did not learn of the vehicle’s use until after
2 If Taylor Brothers purchased a vehicle from Billy for resale, Billy was paid a small profit per vehicle.
4 the accident. Upon reaching his uncle’s house where the Firebird was located, Trey
had to call him back in order to find the vehicle’s keys, which were hidden in a
separate location.
That evening, Trey drove himself and Billy to the races and then returned to
Burke County. However, instead of returning the Firebird to Freddie Taylor’s house
as requested, he left the car at Billy’s apartment and put the keys under the seat. There
is evidence that the next day, March 16, Trey and Billy drove the Firebird to Augusta
and to various local places in Burke County. That evening, Trey again left the car at
Billy’s apartment before returning to his own home. Billy eventually drove the
Firebird to the McManus’s home, and the accident occurred nearby around 1:00 a.m.
on March 17.
Billy, who was 22 years old at the time of the accident, had a total of 11 driving
violations between 2007 and 2011, including five for speeding and two DUIs. There
is evidence that both Freddie and Eddie Taylor knew at least some details of Billy’s
driving record and were aware that his driver’s license had been suspended. Although
both deposed that Billy had not driven any Taylor Brothers’ vehicles while his license
was suspended, various witnesses averred that they saw Billy driving a rollback (used
to tow vehicles) with Taylor Brothers signs on it several times in the year before the
5 accident, as well as driving various vehicles back and forth from Taylor Brothers to
another auto shop to be repaired.
Following discovery, Eddie Taylor filed a motion for summary judgment in
both the McManus and Jackson matters. Shortly thereafter, Freddie Taylor and Taylor
Brothers also filed their summary judgment motions in each case. After a hearing, the
trial court granted Eddie Taylor’s motions for summary judgment but denied those
filed by Freddie Taylor and Taylor Brothers. These appeals and cross-appeals
followed.
Case Nos. A14A0097 and A14A0098
1. In his cross-appeals, Freddie Taylor argues that the trial court erred in
denying his motions for summary judgment because there is no genuine issue of
material fact as to (1) whether he negligently entrusted the vehicle to Billy; (2)
whether he entered into a joint venture with the other defendants; or (3) whether he
entered into a civil conspiracy with the other defendants.3 Because we find the trial
court erred in denying summary judgment to Freddie Taylor, we reverse.
3 Because neither a joint venture nor civil conspiracy claim were alleged by Jackson below, only the first enumeration of error is at issue in Freddie Taylor’s appeal of the Jackson matter in Case No. A14A0098.
6 “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. To recover under this theory of
negligence, therefore, a plaintiff must prove that the vehicle owner gave the allegedly
incompetent driver permission to drive the vehicle.” (Citations and punctuation
omitted.) Bashlor v. Walker, 303 Ga. App. 478, 480 (1) (a) (693 SE2d 858) (2010);
see also (Citations and punctuation omitted.) Jones v. Cloud, 119 Ga. App. 697, 699
(168 SE2d 598) (1969) (“Knowledge of the driver’s incompetency is an essential
element of the rule which holds an owner liable for furnishing his automobile to an
incompetent driver and such knowledge must be actual rather than constructive”)
(citations and punctuation omitted).
Although McManus and Jackson are able to establish that Freddie Taylor did
give express permission to Trey to drive the Firebird to Jackson, South Carolina on
Thursday, March 15, 2012, that permission was clearly and undisputedly limited. See
Willis v. Allen, 188 Ga. App. 390, 390 (373 SE2d 79) (1988) (affirming grant of
summary judgment to defendants on negligent entrustment claim where, although
defendants had allowed their brother to use their car while he was living with them,
there was no evidence that they had done so since he moved out). Both Billy and
7 Freddie Taylor averred that Billy did not have permission to drive the Firebird. Their
testimony is supported by the fact that neither Billy nor Trey knew where the keys to
the Firebird were kept, and Trey was forced to call his uncle a second time in order
to gain access to those keys. McManus and Jackson have pointed to no direct
evidence otherwise. Where the uncontroverted evidence shows that Billy took the
Firebird without Freddie Taylor’s permission and knowledge, it cannot be said that
Freddie Taylor lent Billy the car or otherwise entrusted him with it. See Williams v.
Britton, 226 Ga. App. 263, 264 (485 SE2d 835) (1997) (affirming grant of summary
judgment to vehicle owner where the vehicle was driven without his permission and
knowledge).4
McManus and Jackson, however, argue that Billy was employed by Taylor
Brothers, such that there is an inference that permission was given to use the vehicle,
and that this inference is sufficient to withstand summary judgment. We disagree.
Even assuming that Billy was employed by Taylor Brothers, for purposes of
4 In Williams, the vehicle owner parked his car in front of his family’s home, left the keys in the car and went inside to sleep. His brother took the car while he was sleeping and caused an accident while intoxicated. This Court rejected appellants’ argument that the brother had the vehicle owner’s implied consent to drive the car where the brother testified that he had never been allowed to drive the car without permission. Id.
8 considering these summary judgment motions, we find no genuine issue of material
fact as to whether Freddie Taylor permitted Billy to drive the Firebird on the night of
the accident. It is undisputed that Freddie Taylor retained the Firebird for his personal
use and enjoyment and that it was not used in furtherance of any business of Taylor
Brothers even though the title remained with the company. And Billy drove the
Firebird for wholly personal purposes, i.e., to attend a party. The evidence also shows
that no one, not even Freddie Taylor himself, had driven the Firebird for months
leading up to the accident. Moreover, Billy testified that he did not have permission
to drive the Firebird.5 His cousin, Trey, also testified that he knew not to let Billy
drive, even if that instruction was not explicitly repeated. There can be no entrustment
5 McManus and Jackson argue that Billy’s testimony regarding permission to drive the Firebird is equivocal and therefore should be construed against him, citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986). However, even if we agreed with their characterization of Billy’s testimony, “Prophecy Corp. stands for the position that self-contradictory testimony is construed against the equivocator, absent a reasonable explanation for the contradiction.” (Emphasis supplied.) Korey v. BellSouth Telecommunications, Inc., 269 Ga. 108, 108- 109 (498 SE2d 519) (1998). Thus, Billy’s testimony could only be construed against Billy, not Freddie Taylor. Moreover, that holding is based on “summary judgment cases which clearly state that the opposing party is entitled to judgment only where the favorable portion of the party’s self-contradictory testimony is the only evidence of his right to recover or of his defense.” (Citation and punctuation omitted; emphasis in original.) Id. at 109. Here, Billy’s testimony is not the only evidence that Freddie Taylor did not negligently entrust Billy with the Firebird.
9 of a vehicle when it is taken without permission and operated without the owner-
entrustor’s knowledge and consent. See, e.g., Pague v. Pendley, 177 Ga. App. 573
(340 SE2d 190) (1986) (affirming grant of summary judgment to vehicle owner under
theories of agency, negligent entrustment, and family purpose doctrine where owner’s
ex-husband had been given permission to stay the night at her residence and then,
unbeknownst to her, took her vehicle and caused an accident the following morning);
see also Grant v. Jones, 168 Ga. App. 690, 693 (310 SE2d 272) (1983) (physical
precedent only) (affirming grant of summary judgment to vehicle owner where
employee took the vehicle on a personal mission after work hours without permission
or owner’s knowledge because there was no entrustment of the vehicle at the time of
the accident).
McManus and Jackson also attempt to bolster their allegation of implied
permission by showing that Billy had been seen driving other vehicles owned by
Taylor Brothers around town before the accident. However, whether such
circumstantial evidence is sufficient to prove that Billy had permission to drive other
vehicles at other times is not sufficient evidence to create a genuine issue of material
fact as to Freddie Taylor’s entrustment of the Firebird on the night of the accident.
See Butler v. Warren, 261 Ga. App. 375 (582 SE2d 530) (2003) (affirming grant of
10 summary judgment where there was no evidence that defendants entrusted the vehicle
to their employee for that particular use); see also Watkins v. Jackson, 215 Ga. App.
380, 380 (451 SE2d 111) (1994) (evidence of prior vehicle use not sufficient to
withstand summary judgment on a negligent entrustment claim). We also point out
that, despite several witnesses’ testimony that they had seen Billy drive the Firebird
in the days prior to the accident, the record does not reflect that these incidents took
place either (1) with Freddie Taylor’s permission or (2) prior to Thursday, March 15,
when Trey obtained permission to drive the vehicle while Freddie Taylor was out of
town. See id.
McManus and Jackson’s contention that Freddie must have foreseen that Billy
would recklessly drive the vehicle on Friday night/Saturday morning – even though
he only gave permission to Trey to drive the vehicle, and even then only on Thursday
night – “amounts only to conjecture and does not establish a genuine issue of material
fact precluding summary judgment.” Bashlor, 303 Ga. App. at 482. Similarly, their
argument that the “nature of the witnesses’ testimony and their relationship to each
other in this case itself creates an issue of fact as to its credibility is not legally sound.
An issue of credibility is not raised where there is no conflicting or contradictory
11 evidence on a material matter or impeachment, or inherent discredit.” (Emphasis in
original.) Willis, 188 Ga. App. at 392.
Because McManus and Jackson are unable to establish that Freddie Taylor had
given Billy permission to drive the Firebird, either expressly or impliedly, we need
not consider whether Freddie Taylor had actual knowledge of Billy’s alleged
incompetence or habitual recklessness. Liability under a theory of negligent
entrustment “is premised upon both the exercise of the power to entrust an
instrumentality and actual knowledge of the incompetency of the one to whom the
instrumentality is entrusted. Mere exercise of the power to entrust an instrumentality
without the actual knowledge of incompetency or mere possession of the requisite
actual knowledge without the requisite power to entrust will not support a finding of
liability under this theory.” (Emphasis in original.) Viau v. Fred Dean, Inc., 203 Ga.
App. 801, 803 (3) (418 SE2d 604) (1992); see also Danforth v. Bulman, 276 Ga. App.
531 (623 SE2d 732) (2005). Accordingly, we find that Freddie Taylor has established
there is no genuine issue of material fact as to whether he entrusted the Firebird to his
son, and it was therefore error for the trial court to deny his motions for summary
judgment.
12 2. McManus’ joint venture theory of liability in Case No. A14A0097 likewise
fails. “A joint venture arises where two or more parties combine their property or
labor, or both, in a joint undertaking for profit, with rights of mutual control . . . so
as to render all joint venturers liable for the negligence of the other.” (Citation and
punctuation omitted.) Williams v. Chick-Fil-A, Inc., 274 Ga. App. 169, 170 (617 SE2d
153) (2005). Even if Billy were involved in a joint venture with Freddie Taylor, the
undisputed evidence shows that at the time of the accident, Billy was operating the
vehicle on a purely personal mission. See Williams, 274 Ga. App. at 172 (finding that
under such circumstances, the trial court did not err in concluding as a matter of law
that the driver and the corporation were not engaged in a joint venture or other agency
relationship with regard to the events that resulted in plaintiff’s injuries). We
therefore find that the trial court erred in denying summary judgment to Freddie
Taylor as to McManus’ joint venture claim in Case No. A14A0097.
3. McManus’ final enumeration of error in Case No. A14A0097 is also without
merit. Georgia law does not recognize an independent tort of “conspiracy.” Rather,
a conspiracy is a combination between two or more persons to do some act which is
a tort or else to do some lawful act by unlawful methods. See Cook v. Robinson, 216
Ga. 328, 328 (1) (116 SE2d 742) (1960). Therefore, the gist of the action is not the
13 conspiracy alleged, but the tort committed against the plaintiff and the resulting
damage. Id. Pretermitting whether Billy and Freddie Taylor were engaged in a civil
conspiracy to allow Billy (despite his lack of a license) to purchase vehicles on behalf
of Taylor Brothers for profit, the real difficulty with the McManus’ theory is that
there is no evidence that the instant accident was caused by such a business
arrangement. Rather, Billy was undisputedly on a purely personal mission at the time
of the accident. Moreover, nothing in the record shows that Freddie had any
knowledge that Billy was on this personal mission, and therefore they could not have
formed the requisite tacit understanding to engage in a civil conspiracy as to the event
giving rise to McManus’ injuries. See, e.g., Lewis v. D. Hay Trucking, Inc., 701
FSupp.2d 1300, 1310 (N. D. Ga. 2010) (applying Georgia law). We therefore reverse
the trial court’s denial of summary judgment to Freddie Taylor as to the McManus’
claim of civil conspiracy in Case No. A14A0097.
Case Nos. A13A2447 and A13A2499
4. In Case Nos. A13A2447 and A13A2499, McManus and Jackson argue that
the trial court erred in granting Eddie Taylor’s motions for summary judgment
because a genuine issue of material fact exists as to (1) whether Eddie Taylor
negligently entrusted the vehicle to Billy; (2) whether Eddie Taylor entered into a
14 joint venture with the other defendants for profit with rights of mutual control as to
the employment or direction of Billy Taylor; and (3) whether Eddie Taylor entered
into a civil conspiracy with the other defendants where it was to the mutual benefit
of the defendants to knowingly allow Billy Taylor to operate vehicles on their behalf
despite their imputed knowledge of his incompetence or habitual recklessness.6 In
support of their negligent entrustment claim, McManus and Jackson argue that Eddie
Taylor had, at a minimum, control over the use of the Firebird, that Billy had Eddie
Taylor’s implied consent to use the vehicle, and that Eddie Taylor had actual
knowledge of Billy’s alleged incompetence or habitual recklessness. McManus and
Jackson are correct that one need not be the legal owner of a vehicle in order to be
liable under the theory of negligent entrustment. See Jones, 119 Ga. App. at 701 (1)
(b). However, we nonetheless find the evidence insufficient as a matter of law to
show that Eddie Taylor negligently entrusted the Firebird to his nephew.
While conceding that Eddie Taylor did not give Billy express permission to
drive the Firebird, McManus and Jackson maintain that Billy had his implied
permission because Eddie Taylor did not tell Trey that only he was allowed to drive
6 Only the first claim of error is at issue in Jackson’s appeal in Case No. A13A2499.
15 the Firebird when he called Freddie Taylor to ask for permission. We find no merit
to this argument where there is no evidence that Eddie Taylor was even aware that a
conversation between Freddie Taylor and Trey took place regarding his use of the
Firebird. In addition, for the reasons stated in Case Nos. A13A2447 and A13A2499,
Division 1 above, any inference that Billy had implied permission through his alleged
status as an employee of Taylor Brothers is not sufficient to withstand summary
judgment in this case where that inference has been rebutted.
McManus and Jackson also attack Eddie Taylor’s credibility, in part based on
his familial relationship with Billy, in an attempt to defeat summary judgment.
However, “[s]ummary judgment cannot be avoided based on speculation or
conjecture; once the pleadings are pierced with actual evidence, the plaintiff must
point to admissible evidence showing a genuine issue of fact.” Cowart v. Widener,
287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010). As our Supreme Court explained,
“while the evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor, . . . that does not mean that a plaintiff may defeat a
defendant’s properly supported motion for summary judgment without offering any
concrete evidence from which a reasonable juror could return a verdict in his favor
and by merely asserting that the jury might, and legally could disbelieve the
16 defendant’s denial of wrongdoing.” (Citation and punctuation omitted.) Id. at 634
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (106 SCt 2505, 91 LE2d
202) (1986)). Therefore, a “nonmoving party may not avoid a properly supported
motion for summary judgment by simply arguing that it relies solely or in part upon
credibility considerations or subjective evidence.” (Citation and punctuation omitted.)
Id. Because McManus and Jackson are unable to establish that Eddie Taylor gave
Billy permission to drive the Firebird, either expressly or impliedly, we need not
consider whether he had actual knowledge of his nephew’s alleged incompetence or
habitual recklessness. See Viau, 203 Ga. App. at 803 (3).
5. For the reasons stated in Divisions 2 and 3 above, McManus’ alternative
theories of liability in Case No. A13A2447 likewise fail. Accordingly, we find that
the trial court did not err in granting summary judgment to Eddie Taylor.
Judgments affirmed in Case Nos. A13A2447 and A13A2499. Judgments
reversed in Case Nos. A14A0097 and A14A0098. Andrews, P. J., and Dillard, J.,
concur.