2020 Georgia Code
Title 51 - Torts
Chapter 2 - Imputable Negligence
§ 51-2-1. Basis for Imputation of Negligence; Fault of Parents or Custodians Not Imputable to Child

1. For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such a relation or privity to the negligent person as to create the relation of principal and agent.
2. In an action by an infant, the fault of the parent or of custodians selected by the parents is not imputable to the child.

(Civil Code 1895, § 2902; Civil Code 1910, § 3475; Code 1933, § 105-205.)

- Agency generally, T. 10, C. 6.

- For comment on Southern Ry. v. Garland, 75 Ga. App. 98, 41 S.E.2d 925 (1947), see 10 Ga. B. J. 102 (1947).

ANALYSIS

• General Consideration
• Parent's Negligence Not Imputed to Child

Principal is responsible for torts of agent when agent is acting on behalf of principal. DeDaviess v. U-Haul Co., 154 Ga. App. 124, 267 S.E.2d 633 (1980).

- One charged with negligence solely on the ground of respondeat superior will be held liable only if, and to the extent that, the agent who committed the tortious act is personally liable. Redd v. Peters, 100 Ga. App. 316, 111 S.E.2d 132 (1959).

- Doctrine of ratification was inapplicable in an action for injuries at the defendant's nightclub from actions of a patron, when the evidence showed that the unidentified patron acted in an individual capacity and not as one holding oneself out as acting in the name of or under the authority of defendant. Ginn v. Renaldo, Inc., 183 Ga. App. 618, 359 S.E.2d 390 (1987).

- In a suit brought by parents against the mother's employer for the wrongful death of twin infant girls, allegations of contributory negligence or assumption of the risk by the mother would not defeat recovery for the father. Fulford v. ITT Rayonier, Inc., 676 F. Supp. 252 (S.D. Ga. 1987).

- Negligence by the driver of a private vehicle, contributing to the injury of a person riding therein by invitation, is not imputable to the injured person, unless it is made to appear that the injured person owned the vehicle, or had some agency or concern in the vehicle's operation, such as that the driver was the injured person's servant or agent, or that the two were at the time engaged in a joint enterprise for their common benefit, or unless the injured person otherwise had some right, or was under some duty, to control or influence the driver's conduct, such as might arise from the obvious or known incompetency of the driver, resulting from drunkenness or other cause. Metropolitan St. R.R. v. Powell, 89 Ga. 601, 16 S.E. 118 (1892); Roach v. Western & A.R.R., 93 Ga. 785, 21 S.E. 67 (1894); Southern Ry. v. King, 128 Ga. 383, 57 S.E. 687 (1907); Adamson v. McEwen, 12 Ga. App. 508, 77 S.E. 591 (1913); Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261, 89 S.E. 283 (1916); Wilkinson v. Bray, 27 Ga. App. 277, 108 S.E. 133 (1921); Mayor of Savannah v. Waters, 27 Ga. App. 813, 109 S.E. 918 (1921).

When a husband, not acting as an agent of his wife, operates an automobile not belonging to the wife, but under her command, his negligence is not imputable to the wife. Holloway v. Mayor of Milledgeville, 35 Ga. App. 87, 132 S.E. 106 (1926).

When a wife is merely accompanying her husband as a guest in an automobile driven by him, and a collision occurs, which might in part be attributable to the negligence of the husband as driver of the automobile, any such negligence on his part is not imputable to the wife. Randall Bros. v. Duckett, 53 Ga. App. 250, 185 S.E. 394 (1936).

In Georgia, the negligence of a host driver of a motor vehicle cannot be imputed to the driver's guest passenger unless the passenger stands in such a relation of privity to the negligent host driver as to create the relation of principal and agent. Jones v. Petroleum Carrier Corp., 483 F.2d 1369 (5th Cir. 1973).

- In order for the occupants of a conveyance to be engaged in a joint enterprise, under the rules of law pertaining to negligence, there must be not only a joint interest in the objects and purposes of the undertaking, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance. Holland v. Boyett, 212 Ga. 458, 93 S.E.2d 662 (1956).

- O.C.G.A. § 51-2-1 does not, either by the statute's terms or by implication, create a direct cause of action in tort against the transferee of corporate stock for the transferor corporation's negligence in a completely separate transaction. Brown Transp. Corp. v. Street, 194 Ga. App. 717, 391 S.E.2d 699 (1990).

- Trial court properly granted summary judgment to auto dealer, mortgage broker, and lender. Even if it was assumed that the auto dealer and the mortgage broker were negligent in reviewing the credit application of another individual who was using the accused person's identity to obtain financing for a truck purchase, there was no evidence showing that either the auto dealer or the mortgage broker was acting as the lender's agent, and such a showing was necessary to sustain a recovery under a ratification theory. Blakey v. Victory Equip. Sales, Inc., 259 Ga. App. 34, 576 S.E.2d 38 (2002).

- Summary judgment for a neighbor in a negligence suit by landowners arising out of fire damage was proper because a corporation, not the neighbor, owned the land on which the fire was set, and the person performing the burn was employed by the corporation, not the neighbor. There was no showing of agency under O.C.G.A. § 10-6-1 or O.C.G.A. § 51-2-1(a) between the neighbor and the employee. Barrs v. Acree, 302 Ga. App. 521, 691 S.E.2d 575 (2010).

- Instruction giving this general legal rule will not be accounted erroneous merely on the ground that the jury is not also informed as to what facts and circumstances would constitute the principal-agent relation. Jones Mercantile Co. v. Copeland, 54 Ga. App. 647, 188 S.E. 586 (1936).

Cited in Watson v. Loughran, 112 Ga. 837, 38 S.E. 82 (1901); English v. Georgia Power Co., 66 Ga. App. 363, 17 S.E.2d 891 (1941); Wilson v. Harrell, 87 Ga. App. 793, 75 S.E.2d 436 (1953); Charles v. Raine, 99 Ga. App. 1, 107 S.E.2d 566 (1959); Saunders v. Vikers, 116 Ga. App. 733, 158 S.E.2d 324 (1967); Shirley v. Woods, 118 Ga. App. 851, 165 S.E.2d 891 (1968); Hartz v. United States, 415 F.2d 259 (5th Cir. 1969); Whittle v. Johnston, 124 Ga. App. 785, 186 S.E.2d 129 (1971); Brock v. Patterson, 128 Ga. App. 257, 196 S.E.2d 351 (1973); Allstate Ins. Co. v. Harris, 133 Ga. App. 567, 211 S.E.2d 783 (1974); Garmon v. Delta Air Lines, 139 Ga. App. 152, 227 S.E.2d 821 (1976); Strickland v. ITT Rayonier, Inc., 162 Ga. App. 317, 291 S.E.2d 396 (1982); Adams v. Wright, 162 Ga. App. 550, 293 S.E.2d 446 (1982); Davis v. Stone Mt. Mem. Ass'n, 179 Ga. App. 486, 347 S.E.2d 317 (1986); Commerce Properties, Inc. v. Linthicum, 209 Ga. App. 853, 434 S.E.2d 769 (1993); Housing Auth. of Atlanta v. Jefferson, 225 Ga. App. 60, 476 S.E.2d 831 (1996); Old Republic Union Ins. Co. v. Floyd Beasley & Sons, Inc., 250 Ga. App. 673, 551 S.E.2d 388 (2001); Hicks v. Walker, 262 Ga. App. 216, 585 S.E.2d 83 (2003); Dockens v. Runkle Consulting, Inc., 285 Ga. App. 896, 648 S.E.2d 80 (2007).

Parent's Negligence Not Imputed to Child

When negligence of parent or custodian not imputable to child.

- Negligence of a parent or of a custodian selected by a parent is not imputable to a child when the child is itself the plaintiff. Ferguson v. Columbus & Rome Ry., 77 Ga. 102 (1886); Herrington v. Mayor of Macon, 125 Ga. 58, 54 S.E. 71 (1906); Crook v. Foster, 142 Ga. 715, 83 S.E. 670 (1914); Williams v. Jones, 26 Ga. App. 558, 106 S.E. 616 (1921).

Negligence of parent in driving automobile in which child is riding cannot be imputed to child. Fallaw v. Hobbs, 113 Ga. App. 181, 147 S.E.2d 517 (1966).

Any contributory negligence by the husband driver of the automobile, not being imputable to the mother as a "guest," she having no right of control or direction over the movements of the car, was not imputable to the plaintiff children since their right of action arose from her death and did not come through the husband. Pollard v. Gorman, 52 Ga. App. 127, 182 S.E. 678 (1935).

Since the plaintiff was a six-year old child, riding as a guest in the automobile which collided with the defendant's railroad car at the crossing, and was under no duty, and had no right, to control or influence the conduct of the driver of the automobile, any negligence of the driver that contributed to causing the collision was not imputable to the child. Atlanta, B. & C. Ry. v. Loftin, 67 Ga. App. 601, 21 S.E.2d 290 (1942).

- In an action by a child, suing by the child's next friend, for a personal injury alleged to have arisen from the negligence of a municipal corporation in leaving one of its sidewalks in a dangerous condition, any negligence on the part of the child's mother in failing to keep the child from danger could not be imputed to the plaintiff personally. Wallace v. Adams, 47 Ga. App. 144, 169 S.E. 852 (1933).

- Knowledge of the tenant of the defective condition of the premises is not imputable to the child of the tenant and such child may recover for injury caused by the defective condition of the premises, if the child personally is in the exercise of ordinary care at the time of the injury. Wallace v. Adams, 47 Ga. App. 144, 169 S.E. 852 (1933).

- Negligence of the parent, not imputable to the child, cannot be used as a bar or defense to the defendant's causative negligence. However, when the negligence of the parent is the sole proximate cause of the injury to the child, the child cannot recover from the defendant. Stroud v. Willingham, 126 Ga. App. 156, 190 S.E.2d 143 (1972).

- When the sole proximate cause of an injury to the plaintiff is the negligence of someone other than the defendant, there can be no recovery against the defendant, although such negligence may not be imputable to the plaintiff and the defendant may have been guilty of negligence. Teppenpaw v. Blaylock, 126 Ga. App. 576, 191 S.E.2d 466 (1972).

- Overruling of the defendant's motion to dismiss, which contended that the petition brought by the five-year old by one's next friend to recover damages for personal injuries was defective in that it failed to show that either parent of the plaintiff exercised any care or control over the minor child, was not error. Fulcher v. Rowe, 78 Ga. App. 254, 50 S.E.2d 378 (1948).

- In a wrongful death action arising out of the death of the plaintiffs' three-year-old son in a motel swimming pool, the child was incapable of contributory negligence, while any negligence on the part of the parents was not imputable to the child. Therefore, if the parents were barred from recovery, the parents were barred by the parents' own negligence or assumption of risk. English v. 1st Augusta Ltd., 614 F. Supp. 1406 (S.D. Ga. 1985).

RESEARCH REFERENCES

Am. Jur. 2d.

- 57B Am. Jur. 2d, Negligence, §§ 1096 et seq., 1130 et seq., 1147 et seq.

- 65A C.J.S., Negligence, §§ 297, 301.

- Automobiles: liability of parent for injury to child's guest by negligent operation of car, 2 A.L.R. 900; 88 A.L.R. 590.

Imputability to rescuer of antecedent negligence of rescued person, 5 A.L.R. 206.

Liability for negligence of chauffeur furnished with a car hired for an extended period, 8 A.L.R. 484.

Imputing negligence of parent or custodian to child in action by or on behalf of child for personal injury, 15 A.L.R. 414.

Liability of husband for independent tort of wife, 20 A.L.R. 528; 27 A.L.R. 1218; 59 A.L.R. 1468.

Liability of employer for injuries by automobile while being driven by or for salesman or collector, 54 A.L.R. 627; 107 A.L.R. 419.

Liability of owner for negligence of one permitted by former's servant or member of his family to drive automobile, 54 A.L.R. 851; 98 A.L.R. 1043; 134 A.L.R. 974.

Liability of person acting under authority of one spouse for injury to other spouse, 57 A.L.R. 755.

Negligence of driver of automobile as imputed to member of joint enterprise, 62 A.L.R. 440; 85 A.L.R. 630.

When occupants of automobile deemed to be engaged in joint enterprise so that negligence of one is imputable to other, 80 A.L.R. 312; 95 A.L.R. 857.

Doctrine of ratification invoked to charge one person with responsibility for the negligence of another not authorized to act for him, 85 A.L.R. 915.

Negligence of driver of automobile as imputable to passenger, 90 A.L.R. 630; 123 A.L.R. 1171.

Liability of bank for losses incurred on loans or investments made on recommendation of its officers or employees, 113 A.L.R. 246.

Negligence or contributory negligence of parent in intrusting child to custody of another child, 123 A.L.R. 147.

Liability of owner under family purpose doctrine for injuries by automobile while being used by member of his family, 132 A.L.R. 981.

Right to bring separate actions against master and servant, or principal and agent, to recover for negligence of servant or agent, where master's or principal's only responsibility is derivative, 135 A.L.R. 271.

Liability of attorney or law firm for conduct of employee or member of firm in connection with investment of funds of client, 136 A.L.R. 1110.

Imputation of driver's negligence to passenger, 163 A.L.R. 697.

Automobile owner's common-law liability for negligence in entrusting car to known incompetent, reckless, or inexperienced person as affected by statute limiting owner's liability to use within terms of consent, 163 A.L.R. 1418.

Negligence of automobile passenger as to lookout or other precaution as affecting question of negligence or contributory negligence of driver, 165 A.L.R. 596.

Contributory negligence of driver of motor vehicle as imputable to owner under statute making owner responsible for negligence of driver, 11 A.L.R.2d 1437.

Liability of municipality for injury or damage from explosion or burning of substance stored by third person under municipal permit, 17 A.L.R.2d 683.

Liability under respondeat superior doctrine for acts of operator furnished with leased machine or motor vehicle, 17 A.L.R.2d 1388.

Dealer's liability for negligent operation of car by prospective purchaser or one acting for him, 31 A.L.R.2d 1445.

Employer's liability for negligence of employee in piloting his own airplane in employer's business, 46 A.L.R.2d 1050.

Liability of person permitting child to have gun, or leaving gun accessible to child, for injury inflicted by the latter, 68 A.L.R.2d 782.

Liability of employer for injury to wife or child or employee through latter's negligence, 1 A.L.R.3d 677.

Products liability: manufacturer's responsibility for defective component supplied by another and incorporated in product, 3 A.L.R.3d 1016.

Master's liability for injury to or death of person, or damage to property, resulting from fire allegedly caused by servant's smoking, 20 A.L.R.3d 893.

Contributory negligence of spouse or child as bar to recovery of collateral damages suffered by other spouse or parent, 21 A.L.R.3d 469.

Liability of owner or operator of power lawnmower for injuries resulting to third person from its operation, 25 A.L.R.3d 1314.

Liability of hospital for negligence of nurse assisting operating surgeon, 29 A.L.R.3d 1065.

Railroad's liability for injury to or death of child on moving train other than as paying or proper passenger, 35 A.L.R.3d 9.

Imputation of contributory negligence of servant or agent to master or principal, in action by master or principal against another servant or agent for negligence in connection with his duties, 57 A.L.R.3d 1226.

Permitting child to walk to school unattended as contributory negligence of parents in action for injury to or death of child, 62 A.L.R.3d 541.

Liability of owner of powerboat for injury or death allegedly caused by one permitted to operate boat by owner, 71 A.L.R.3d 1018.

Liability of one hiring private investigator or detective for tortious acts committed in course of investigation, 73 A.L.R.3d 1175.

Carrier's liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult, 74 A.L.R.3d 1171.

Landlord's liability to tenant's child for personal injuries resulting from defects in premises, as affected by tenant's negligence with respect to supervision of child, 82 A.L.R.3d 1079.

Student-driver's negligence as imputable to teacher-passenger, 90 A.L.R.3d 1329.

Fact that passenger in vehicle is owner as affecting right to recover from driver for injuries to, or death of, passenger incurred in consequence of driver's negligence, 21 A.L.R.4th 459.

Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child, 26 A.L.R.4th 396.

Liability of hotel or motel operator for injury to guest resulting from assault by third party, 28 A.L.R.4th 80.

Liability of private citizen or his employer for injury or damage to third person resulting from firing of shots at fleeing criminal, 29 A.L.R.4th 144.

Fact that passenger in negligently operated motor vehicle is owner as affecting passenger's liability to or rights against third person - modern cases, 37 A.L.R.4th 565.

Construction and effect of statutes which make parent, custodian, or other person signing minor's application for vehicle operator's license liable for licensee's negligence or willful misconduct, 45 A.L.R.4th 87.

Liability for personal injury or property damage caused by unauthorized use of automobile which had been parked with keys removed from ignition, 70 A.L.R.4th 276.

Liability of doctor or other health practitioner to third party contracting contagious disease from doctor's patient, 3 A.L.R.5th 1.

Secondary smoke as battery, 46 A.L.R.5th 813.