2021 Georgia Code
Title 51 - Torts
Chapter 2 - Imputable Negligence
§ 51-2-2. Liability for Torts of Spouse, Child, or Servant in Certain Instances

Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.

(Orig. Code 1863, § 2904; Code 1868, § 2910; Code 1873, § 2961; Code 1882, § 2961; Civil Code 1895, § 3817; Civil Code 1910, § 4413; Code 1933, § 105-108.)

- For article, "Motorboat Collisions and the Family Purpose Doctrine," see 2 Ga. St. B. J. 473 (1966). For article analyzing the trend in this country toward no-fault liability, see 25 Emory L.J. 163 (1976). For article, "Sexual Harassment Claims Under Georgia Law," see 6 Ga. St. B. J. 16 (2000). For annual survey on labor and employment law, see 71 Mercer L. Rev. 137 (2019). For note, "Effect of Verdict for Employee in Joint Action Against Employer and Employee," see 3 Mercer L. Rev. 298 (1952). For note discussing the doctrine of respondeat superior, see 2 Ga. St. B. J. 478 (1966). For note discussing the family purpose car doctrine as an extension of the principle of respondeat superior, see 3 Ga. St. B. J. 112 (1966). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969). For note, "Tort Liability in Georgia for the Criminal Acts of Another," see 18 Ga. L. Rev. 361 (1984). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017). For comment on Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946), see 9 Ga. B. J. 98 (1946). For comment on Cohen v. Whiteman, 75 Ga. App. 286, 43 S.E.2d 184 (1947), see 10 Ga. B. J. 222 (1947). For comment on Woolf v. Colonial Stores, Inc., 76 Ga. App. 565, 46 S.E.2d 620 (1948), see 11 Ga. B. J. 70 (1948). For comment regarding joinder of master and servant as parties defendant, in light of Southern Ry. v. Garland, 76 Ga. App. 729, 47 S.E.2d 93 (1948), see 11 Ga. B. J. 226 (1948). For comment on Colonial Stores, Inc. v. Sasser, 79 Ga. App. 604, 54 S.E.2d 719 (1949), see 12 Ga. B. J. 215 (1949). For comment on Davidson v. Harris, Inc., 81 Ga. App. 665, 59 S.E.2d 551 (1950), see 13 Ga. B. J. 229 (1950). For comment on Radio Cabs, Ltd. v. Tolbert, 86 Ga. App. 181, 70 S.E.2d 260 (1952), see 15 Ga. B. J. 226 (1952). For comment on Henson v. Garnto, 88 Ga. App. 320, 76 S.E.2d 636 (1953), regarding recovery by wife under doctrine of respondeat superior for injuries caused by husband, see 5 Mercer L. Rev. 209 (1953). For comment discussing liability of husband to wife for tort caused by their minor child, in light of Silverman v. Silverman, 145 Conn. 663, 145 A.2d 826 (1958), see 10 Mercer L. Rev. 339 (1959). For comment on Myrick v. Alexander, 101 Ga. App. 1, 112 S.E.2d 697 (1960), see 22 Ga. B. J. 570 (1960). For comment on Marques v. Ross, 105 Ga. 133, 123 S.E.2d 412 (1961), and application of the family purpose doctrine, see 14 Mercer L. Rev. 297 (1962). For comment on Ferguson v. Gurley, 105 Ga. App. 575, 125 S.E.2d 218 (1962), see 25 Ga. B. J. 209 (1962). For comment on Emory Univ. v. Porter, 103 Ga. App. 752, 121 S.E.2d 668 (1961), as to hospital's liability for the negligence of a physician, see 14 Mercer L. Rev. 467 (1963). For comment on Porter v. Patterson, 107 Ga. App. 64, 129 S.E.2d 70 (1962), see 26 Ga. B. J. 184 (1963). For comment on Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), holding employer defendant may not use independent contractor defense to invasion of privacy suit resulting from actions of investigator working in his behalf, see 9 Ga. St. B. J. 519 (1973).

ANALYSIS

• General Consideration
• Torts of Spouse
• Torts of Child
• Vicarious Liability
• Family Purpose Doctrine
• Torts of Servant
• Torts of Servant - Specific Cases

"Servant" means employee as well as domestic servant. 1958-59 Op. Att'y Gen. p. 390.

- If a servant steps aside from the master's business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable; the test is not that the act of the servant was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the prosecution of the master's business. 1958-59 Op. Att'y Gen. p. 390.

- True test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. 1958-59 Op. Att'y Gen. p. 390.

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, § 192 et seq. 59 Am. Jur. 2d, Parent and Child, § 88 et seq. 74 Am. Jur. 2d, Torts, § 55 et seq.

Parent's Failure to Supervise Children, 11 POF2d 541.

Parental Failure to Control Child, 45 POF2d 549.

Complicity Rule in Motor Vehicle Accident Cases: Employer's Authorization or Ratification of Driver's Conduct, 19 POF3d 437.

- 67A C.J.S., Parent and Child, § 329 et seq.

- 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.

Liability of employer for acts of janitor, 8 A.L.R. 1458.

Liability of parent for injury inflicted by minor child with dangerous instrumentality left accessible to him, 12 A.L.R. 812.

Liability of wife for husband's torts, 12 A.L.R. 1459.

Liability of master for damage to person or property due to servant's smoking, 13 A.L.R. 997; 31 A.L.R. 294.

Liability of master for injury to one whom servant, in violation of instructions, permits to ride on vehicle, 14 A.L.R. 145; 62 A.L.R. 1167; 74 A.L.R. 163.

Statutory liability of stockholder for tort of corporation, 14 A.L.R. 267.

Liability of employer for injuries inflicted by automobile while being driven by or for salesman or collector, 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419.

Personal liability of servant or agent to third person for injuries caused by the performance or nonperformance of his duties to his employer, 20 A.L.R. 97; 99 A.L.R. 408; 96 A.L.R.2d 208.

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

Judgment for or against master in action for servant's tort as bar to action against servant, 31 A.L.R. 194.

Liability of master for damages to third person from wanton or willful act of servant directed against master, 40 A.L.R. 207.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Liability of owner for negligence of one permitted by the former's servant, or member of his family, to drive automobile, 44 A.L.R. 1382; 54 A.L.R. 851; 98 A.L.R. 1043; 134 A.L.R. 974.

Owner's liability for injury by automobile while being used by a servant for his own pleasure or business, 45 A.L.R. 477.

Liability for injury to or by one operating motor vehicle while under the age prescribed by law, 46 A.L.R. 1067.

Liability of principal for amount of fraudulent excess collection by agent, 46 A.L.R. 1212.

Liability of bank in respect to funds of third persons misappropriated by bank officer or employee and used to cover his own overdraft or defalcation, 48 A.L.R. 464.

Responsibility of mail contractor to third person for negligence or other misconduct of an employee, 51 A.L.R. 198.

Liability of private employer of police officer for latter's negligence or other misconduct, 55 A.L.R. 1197.

Liability for negligence of intoxicated partner or servant, 55 A.L.R. 1225.

Negligence of one spouse as imputable to other because of the marital relationship itself, 59 A.L.R. 153; 110 A.L.R. 1099.

Liability for injury caused by window washer, 61 A.L.R. 356.

Liability of one who leaves building materials accessible to children for injury to third person by child's act, 62 A.L.R. 833.

Liability of bank to holder of certificate of deposit fraudulently issued by a bank officer or employee in its name, 63 A.L.R. 991.

Liability of owner under "family-purpose" doctrine, for injuries by automobile while being used by member of his family, 64 A.L.R. 844; 88 A.L.R. 601; 100 A.L.R. 1021; 132 A.L.R. 981.

Liability of infant in tort for inducing contract by misrepresenting his age, 67 A.L.R. 1264.

Ownership of automobile as prima facie evidence of responsibility for negligence of person operating it, 74 A.L.R. 951; 96 A.L.R. 634.

Liability of master for injury inflicted by servant with firearms, 75 A.L.R. 1176.

Necessity of verdict against servant or agent as condition of verdict against master or principal for tort of servant or agent, 78 A.L.R. 365.

Family purpose doctrine as applicable to instrumentality other than automobile, 79 A.L.R. 1161.

What amounts to gross negligence, recklessness, or the like, within statute limiting liability of owner or operator of automobile for injury to guest, 86 A.L.R. 1145.

Liability of telegraph company for punitive damages for wrongful or negligent acts of employees as regards messages, 89 A.L.R. 356.

Necessity of pleading family purpose doctrine and sufficiency and effect of pleading in that regard, 93 A.L.R. 991.

Right to join master and servant as defendants in action based on wrongful or negligent act of servant, where master's liability rests on doctrine of respondeat superior, 98 A.L.R. 1057; 59 A.L.R.2d 1066.

Liability of owner for negligence of one to whom car is loaned or hired, 100 A.L.R. 920; 168 A.L.R. 1364.

One in general employment of carrier as servant temporarily of shipper or consignee while aiding in loading or unloading or moving cars, as regards responsibility for his negligence, and vice versa, 102 A.L.R. 514.

Liability of infant for torts of his employee or agent, 103 A.L.R. 487.

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

Status of gasoline and oil distributor or dealer as agent, employee, independent contractor, or independent dealer as regards responsibility for injury to person or damage to property, 116 A.L.R. 457; 83 A.L.R.2d 1282.

Prima facie case or presumption from registration of automobile in name of, or from proof of ownership by, defendant, as applicable to questions other than the master-servant relationship at time of accident, 122 A.L.R. 228.

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.

Identity of master, as regards rule of respondeat superior, of one loaned or hired out by general employer in connection with WPA or other similar governmental project, 136 A.L.R. 525.

Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306.

What amounts to ratification by principal or master of libel or slander by agent or servant, 139 A.L.R. 1066.

Variance between allegation and proof as regards identity of servant or agent for whose acts defendant is sought to be held responsible, 139 A.L.R. 1152.

Rule respondeat superior as applicable to negligent act of employee done within scope of the employment, where injury was the result of a personal collision or accident of a similar nature, 141 A.L.R. 683.

Amount of recovery in tort action against servant or other person who was the active tort-feasor as limit of amount recoverable against one responsible only derivatively, 141 A.L.R. 1168.

Homework by employee as affecting employer's responsibility for injury to third person due to employee's negligence while on way to or from home, 146 A.L.R. 1193.

Scope and application of exceptions as regards carrying passengers in policies of automobile insurance, 147 A.L.R. 632.

Owner's statutory liability for negligent operation of automobile where he has consented to use by another and car is being driven by a third person, 147 A.L.R. 875.

Owner's presence in automobile operated by another as affecting former's right or liability, 147 A.L.R. 960.

Liability for injury or damages resulting from traffic accident on highway involving vehicle in military service, 147 A.L.R. 1431.

Liability of master or principal for servant's or agent's libel or slander of one other than servant or agent or former servant or agent, 150 A.L.R. 1338.

Liability of owner of automobile for negligence while it is being operated by another with his consent as affected by immunity of the operator (or his employer) from liability or action, 152 A.L.R. 1058.

Liability for injury to person or damage to property as result of "blackout," 155 A.L.R. 1458; 158 A.L.R. 1463.

Master's liability for injury of one servant by another in enforcing discipline, 156 A.L.R. 640.

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.

Master's liability for injuries to nonemployee caused by servant's negligence in use of instrumentality different from that authorized, 166 A.L.R. 877.

Liability of one spouse for tort of other in maintenance of household, 168 A.L.R. 937.

Employer's liability for assault by truck driver or chauffeur, 172 A.L.R. 532.

Liability of infant for injuries inflicted at play, 173 A.L.R. 890.

Necessity of pleading that tort was committed by servant, in action against master, 4 A.L.R.2d 292.

Overcoming inference or presumption of driver's agency for owner, or latter's consent to operation, of automobile, 5 A.L.R.2d 196.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Tort liability of master for theft by servant, 15 A.L.R.2d 829; 39 A.L.R.4th 543.

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

Acts of employee, in procuring warrant or aiding prosecution, as within scope of employment so as to render employer liable for malicious prosecution, 18 A.L.R.2d 402.

Liability of employer for injury resulting from games or other recreational or social activities, 18 A.L.R.2d 1372.

Liability for assault by employee in collecting debt, 22 A.L.R.2d 1227.

Employer's liability for negligence of an assistant procured or permitted by his employee without authority, 25 A.L.R.2d 984.

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, 26 A.L.R.2d 1320.

Liability of employer, other than carrier, for a personal assault upon customer, patron, or other invitee, 34 A.L.R.2d 372.

Liability for injury to hand in vehicle door, 34 A.L.R.2d 1172.

Liability of insurance company for negligent operation of automobile by insurance agent or broker, 36 A.L.R.2d 261.

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

Liability for injury or damage resulting from fire started by use of blowtorch, 49 A.L.R.2d 368.

Owner's presence in motor vehicle operated by another as affecting owner's rights or liability, 50 A.L.R.2d 1281.

Employer's liability for employee's negligence in operating employer's car in going to or from work or meals, 52 A.L.R.2d 350.

Route driver or salesman as independent contractor or employee of merchandise producer or processor, for purposes of respondeat superior doctrine, 53 A.L.R.2d 183.

Liability of employer for negligent operation of motor vehicle by automobile salesman, 53 A.L.R.2d 631.

Employer's liability for assault by taxicab or motorbus driver, 53 A.L.R.2d 720.

Liability of insurance company for libel or slander by its agents or employees, 55 A.L.R.2d 828.

Right to join master and servant as defendants in tort action based on respondeat superior, 59 A.L.R.2d 1066.

Sleeping-car company's liability for employee's assault upon passenger, 60 A.L.R.2d 1115.

Liability of proprietor of store, office, or similar business premises for injury from fall due to presence of obstacle placed or dropped on floor, 61 A.L.R.2d 110.

Liability of proprietor of store, office, or similar business premises for injury from fall due to presence of litter or debris on stairway, 61 A.L.R.2d 174.

Liability of proprietor of store, office, or similar business premises for injury from fall due to presence of obstacle placed or dropped on steps, 61 A.L.R.2d 205.

Liability of municipality for torts in connection with airport, 66 A.L.R.2d 634.

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 hospital or sanitarium for negligence of physician or surgeon, 69 A.L.R.2d 305.

Hospital's liability as to diagnosis and care of patients brought to emergency ward, 72 A.L.R.2d 396.

Personal liability of auctioneer to owner or mortgagee for conversion, 96 A.L.R.2d 208.

House-to-house salesman or canvasser as independent contractor or employee, for purposes of respondeat superior, 98 A.L.R.2d 335.

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

Right of employer sued for tort of employee to implead the latter, 5 A.L.R.3d 871.

Validity and construction of statutes making parents liable for torts committed by their minor children, 8 A.L.R.3d 612.

Owning, leasing, or otherwise engaging in business of furnishing services for taxicabs as basis of tort liability for acts of taxi driver under respondeat superior doctrine, 8 A.L.R.3d 818.

Modern status of family purpose doctrine with respect to motor vehicles, 8 A.L.R.3d 1191.

Liability of operating surgeon for negligence of nurse, assisting him, 12 A.L.R.3d 1017.

Employer's liability to employee for malpractice of physician supplied by employer, 16 A.L.R.3d 564.

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.

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

Admissibility and probative value of admissions of fault by agent on issue of principal's secondary liability, where both are sued, 27 A.L.R.3d 966.

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

Intoxicating liquors: right of one liable under civil damage act to contribution or indemnity from intoxicated person, or vice versa, 31 A.L.R.3d 438.

Liability of labor union or its membership for torts committed by officers, members, pickets, or others, in connection with lawful primary labor activities, 36 A.L.R.3d 405.

Liability of one contracting for private police security service for acts of personnel supplied, 38 A.L.R.3d 1332.

Insurer's tort liability for acts of adjuster seeking to obtain settlement or release, 39 A.L.R.3d 739.

Liability for negligence of doorman or similar attendant in parking patron's automobile, 41 A.L.R.3d 1055.

Subrogation of employer's liability insurer to employer's right of indemnity against negligent employee, 53 A.L.R.3d 631.

Liability for injury to or death of passenger from accident due to physical condition of carrier's employee, 53 A.L.R.3d 669.

Employer's liability for action of trustees or similar body administering employer's pension plan, 54 A.L.R.3d 189.

Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R.3d 974.

Newspaper boy or other news carrier as independent contractor or employee for purposes of respondeat superior, 55 A.L.R.3d 1216.

Liability of hospital, other than mental institution, for suicide of patient, 60 A.L.R.3d 880.

Liability of parent for injury caused by child riding a bicycle, 70 A.L.R.3d 611.

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

When is employer chargeable with negligence in hiring careless, reckless, or incompetent independent contractor, 78 A.L.R.3d 910.

Vicarious liability of private franchisor, 81 A.L.R.3d 764.

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

Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.

Liability of one who sells gun to child for injury to third party, 4 A.L.R.4th 331.

Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R.4th 865.

Criminal responsibility of parent for act of child, 12 A.L.R.4th 673.

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.

Liability of donor of motor vehicle for injuries resulting from owner's operation, 22 A.L.R.4th 738.

Release of, or covenant not to sue, one primarily liable for tort, but expressly reserving rights against one secondarily liable, as bar to recovery against latter, 24 A.L.R.4th 547.

Modern trends as to tort liability of child of tender years, 27 A.L.R.4th 15.

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.

Insurer's tort liability for wrongful or negligent issuance of life policy, 37 A.L.R.4th 972.

Liability of bank or safe-deposit company for its employee's theft or misappropriation of contents of safe-deposit box, 39 A.L.R.4th 543.

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 of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th 235.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities--state cases, 85 A.L.R.4th 979.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 A.L.R.5th 217.

Liability of municipal corporation for negligent performance of building inspector's duties, 24 A.L.R.5th 200.

Employer's liability for negligence of employee in driving his or her own automobile, 27 A.L.R.5th 174.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.