Simply swearing that the son did not have permission is nothing more than a sworn denial of the allegation that the son had permission. This is far from the state of the record in Pague v. Pendley, 177 Ga. App. 573 ( 340 S.E.2d 190) (1986), where the defendant showed the circumstances under which a legal conclusion of "no permission" was compelled. Secondly, even if the father's non-contextual statement that his son was not driving with permission is considered as evidence of the fact, it is met with the plaintiff's showing of the circumstances, which support a reasonable inference that the driving was with permission.
Any error in considering the affidavit was harmless, however, because the affidavit was cumulative of Dr. Hyers's deposition testimony. See Whalen v. Isaacs, 233 Ga. App. 367, 367-368 (1) ( 504 SE2d 214) (1998); Pague v. Pendley, 177 Ga. App. 573, 574-575 (1) ( 340 SE2d 190) (1986). Based on this expert testimony, a jury question was presented as to whether the rapid infusion of 20 milligrams of morphine ordered by Dr. Ungarino proximately resulted in Ms. Vinson's death.
In this regard, Thompson was required to prove that Whitfield gave Ledbetter permission to use his truck. See Pague v. Pendley, 177 Ga. App. 573, 575 (3) ( 340 S.E.2d 190) (1986). Whitfield concedes that he had actual knowledge that Ledbetter was an incompetent driver.
The record establishes that Franco took the car without permission and had never done so before, thereby precluding any knowledge on Cabrera's part. Pague v. Pendley, 177 Ga. App. 573, 575(3) ( 340 S.E.2d 190) (1986). Further, despite Trent's claims to the contrary, we do not find that Franco's prior, non-automobile-related "troubles" with the police can forge the knowledge required for negligent entrustment.
The liability flows from the negligent act of the owner permitting another to drive his vehicle when the owner knows the driver to be either incompetent or habitually reckless, and the driver's behavior is the proximate cause of the plaintiff's injuries. Pague v. Pendley, 177 Ga. App. 573, 575 ( 340 S.E.2d 190) (1986); Saunders v. Vikers, supra. 4. The trial court declined to address the issue of whether or not G MSS was governed by the rules of the Public Service Commission (PSC) because G MSS was released from the lawsuit on summary judgment.
Raven v. Dodd's Auto Sales Svc., 117 Ga. App. 416, 421 (3) through (5) ( 160 S.E.2d 633) (1968); see Wallace, supra at 641 (3). Defendants were entitled to summary judgment. Wallace, supra; Pague v. Pendley, 177 Ga. App. 573 ( 340 S.E.2d 190) (1986); Bunch v. Stanton, 174 Ga. App. 233, 235 (2) ( 329 S.E.2d 538) (1985). Judgment affirmed. Birdsong, C. J., and Banke, P. J., concur.
Thus, we conclude that no question of fact existed as to the existence of an agency relationship between Stenglein and the appellee and that the trial court did not err in granting summary judgment in favor of the appellee on this issue. See Entertainment Developers v. Relco, Inc., 172 Ga. App. 176 (2) ( 322 S.E.2d 304) (1984); Pague v. Pendley, 177 Ga. App. 573 (1) ( 340 S.E.2d 190) (1986). 2.
Wiwi's CDL was suspended because he failed to provide proof of personal injury protection insurance for a truck he no longer owned -- not for any reason in which Rolar could have been put on notice that he was an "incompetent or habitually reckless" driver. Pague v. Pendley, 177 Ga. App. 573, 575 (1986) (The "essential elements of negligent entrustment" against an employer are "predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless. . . .") (citations omitted). Finally, Plaintiff's claim against Rolar for negligent supervision fails because no reasonable jury could conclude that Rolar reasonably knew or could have known that Wiwi had a tendency to engage in any behavior that tends to cause motor vehicle accidents.
There can be no entrustment 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 S.E.2d 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 S.E.2d 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 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 S.E.2d 680 (1986).