Dana A. Daniels v. Natalie Huffaker

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 15, 2015 Session

DANA A. DANIELS v. NATALIE HUFFAKER1 ET AL.

Appeal from the Circuit Court for Knox County

No. 1-299-11 Dale C. Workman, Judge

No. E2014-00869-COA-R3-CV-FILED-MAY 12, 2015

This case involves an automobile accident in which the plaintiff‟s vehicle was struck by

an oncoming pick-up truck when the truck‟s driver attempted to turn left in front of the

plaintiff‟s vehicle. The plaintiff suffered injuries to her neck and back, as well as

significant damage to her vehicle. The plaintiff brought this action, alleging negligence

against the driver of the truck and negligent entrustment against the truck‟s owner, who

was the defendant driver‟s brother-in-law. The plaintiff also alleged that the truck‟s

owner was vicariously liable for damages under the family purpose doctrine. The driver

of the truck was never successfully served with process and is not a party to this appeal.

The defendant owner of the truck filed a motion for summary judgment. Following a

hearing, the trial court granted summary judgment in favor of the defendant owner. The

plaintiff appeals. Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.

William A. Hotz and Jeffrey H. Glaspie, Knoxville, Tennessee, for the appellant, Dana A.

Daniels.

Beverly D. Nelms, Knoxville, Tennessee, for the appellee, Keith Norris.

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Ms. Huffaker‟s name is spelled “Huffacker” in the original complaint, several pleadings, and the final

judgment. Because her last name is spelled “Huffaker” on the parties‟ docketing statement and on the

sole pleading Ms. Huffaker filed with the trial court, we employ that spelling throughout this opinion.

OPINION

I. Factual and Procedural Background

The automobile accident giving rise to this action occurred on June 29, 2010. The

facts surrounding the accident itself are undisputed. The plaintiff, Dana A. Daniels, was

driving her 1999 Buick Century eastbound on Dutch Valley Road in Knoxville at

approximately 4:00 p.m. As she approached an apartment complex on her right, a 2000

Ford F-150 pick-up truck (“the truck”) traveling in the opposite direction turned left

toward the apartment complex and struck Ms. Daniels‟s vehicle. The truck was driven by

the co-defendant, Natalie Huffaker. There were no passengers in either vehicle. As a

result of the accident, Ms. Daniels required ongoing medical treatment for injuries to her

neck and back. In addition, it is undisputed that Ms. Daniels‟s vehicle suffered severe

damage, which she later described through deposition testimony as a total loss of the

vehicle‟s value.

According to deposition testimony, Ms. Huffaker was not seriously injured in the

accident, and the truck she was operating was eventually repaired. The truck was owned

by the co-defendant, Keith Norris, who is Ms. Huffaker‟s brother-in-law, the husband of

her sister, Beth Norris. At the time of the accident, Mr. Norris was deployed on active

duty in Iraq. His domicile was a home he and his wife owned in the Knoxville area. Ms.

Huffaker was twenty-eight years old at the time of the accident. It is undisputed that at

some point prior to June 2010, Ms. Huffaker resided with her boyfriend at his apartment

on Dutch Valley Drive. Deposition testimony differed, however, regarding whether at

the time of the accident and while Mr. Norris was in Iraq, Ms. Huffaker resided with her

boyfriend or with her sister, Ms. Norris. Ms. Norris testified that Ms. Huffaker resided

with her boyfriend and that she only stayed at the Norrises‟ home as a visitor or to

“decompress” when she encountered relationship difficulties. Ms. Huffaker, however,

testified that at the time of the accident, she had been “officially living” at the Norrises‟

home after losing her job and apartment a few months before. Ms. Huffaker did

acknowledge that she kept her mailing address at her boyfriend‟s apartment and tended to

split her time between that apartment and her sister‟s home.

Ms. Norris testified that she allowed Ms. Huffaker to drive her husband‟s truck

while Mr. Norris was in Iraq because the truck was “just sitting there” and Ms. Huffaker

needed transportation to and from work. When the accident occurred, Ms. Huffaker was

en route from her employment at a nearby gas station/convenience store to her

boyfriend‟s apartment. She was attempting to turn into the apartment complex‟s

driveway when she collided with Ms. Daniels.

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Mr. Norris testified that he never gave express permission to Ms. Huffaker to drive

his truck. He concedes, however, that Ms. Huffaker was a “permissive user” of the truck.

It is undisputed that Ms. Huffaker was driving with a suspended driver‟s license and that

she maintained no automobile insurance of her own. Both Mr. and Ms. Norris testified,

respectively, that they had no knowledge of the status of Ms. Huffaker‟s driver‟s license

prior to the accident.

On June 24, 2011, Ms. Daniels filed a complaint, alleging negligent operation of

the truck on the part of Ms. Huffaker. Specific allegations included reckless driving and

failure to properly control the truck, keep a proper lookout ahead, exercise due care, and

yield. As to Mr. Norris, Ms. Daniels alleged negligent entrustment and vicarious liability

for Ms. Daniels‟s injuries under the family purpose doctrine and “all statutory and

common law presumptions of agency arising from the operation of motor vehicles.” She

requested $150,000 in compensatory damages and $45,000 in punitive damages. Mr.

Norris filed an answer to the complaint on July 27, 2011, admitting that Ms. Huffaker

was a permissive user of his vehicle at the time of the accident but denying all personal

liability for Ms. Daniels‟s injuries. Upon a joint motion subsequently filed by Ms.

Daniels and Mr. Norris, the trial court entered an agreed order striking Ms. Daniels‟s

request for punitive damages on January 11, 2012.

Mr. Norris filed a motion for summary judgment on July 2, 2013, to which he

attached excerpts from deposition testimony given by Mr. Norris, Ms. Norris, and Ms.

Daniels. Mr. Norris subsequently filed a memorandum in support of his motion on

August 26, 2013. Ms. Daniels filed a response in opposition to the motion for summary

judgment on September 12, 2013.

In the meantime, Ms. Daniels was not successful in her attempts to timely serve

Ms. Huffaker with process. On August 12, 2013, Ms. Huffaker‟s counsel filed a

“Limited and Special Notice of Appearance,” averring that Ms. Daniels had failed to

properly serve Ms. Huffaker and that the applicable statute of limitations had expired.

Ms. Huffaker subsequently filed a motion to dismiss on October 23, 2013. The trial court

granted the motion, dismissing the action as to Ms. Huffaker with prejudice in an agreed

order entered on December 19, 2013. Ms. Huffaker eventually provided testimony via

deposition in January 2014. Mr. Norris cited Ms. Huffaker‟s deposition testimony,

attaching an excerpt, in a reply he filed to Ms. Daniels‟s response to the summary

judgment motion on February 6, 2014. Ms. Daniels filed a supplemental response the

next day, maintaining her argument that Mr. Norris remained liable for the accident under

the family purpose doctrine and negligent entrustment.

Following a hearing conducted on February 14, 2014, the trial court entered an

order granting summary judgment in favor of Mr. Norris on April 4, 2014. On May 2,

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2014, Ms. Daniels filed a notice of appeal and concomitantly filed a Tennessee Rule of

Civil Procedure 59.04 motion to alter or amend the judgment. Following a hearing

conducted on May 23, 2014, the trial court denied Ms. Daniels‟s motion to alter or amend

the judgment. This Court thereafter treated Ms. Daniels‟s appeal as timely pursuant to

Tennessee Rule of Appellate Procedure 4(d).

II. Issues Presented

Ms. Daniels presents three issues on appeal, which we have restated as follows:

1. Whether the trial court erred by finding that the prima facie evidence of

agency provided by Tennessee Code Annotated § 55-10-311(a) was not

applicable to the instant action.

2. Whether the trial court erred by granting summary judgment in favor of Mr.

Norris upon its finding that the family purpose doctrine was not applicable

to the instant action.

3. Whether the trial court erred by granting summary judgment in favor of Mr.

Norris upon its finding that the theory of negligent entrustment was not

applicable to the instant action.

III. Standard of Review

Our Supreme Court has succinctly described the applicable2 standard of review of

a trial court‟s grant of summary judgment:

A summary judgment is appropriate only when the moving party can

demonstrate that there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v.

Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008). When ruling on a

summary judgment motion, the trial court must accept the nonmoving

party‟s evidence as true and resolve any doubts concerning the existence of

a genuine issue of material fact in favor of the nonmoving party. Shipley v.

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The recently enacted Tennessee Code Annotated § 20-16-101 (Supp. 2012), 2011 Tenn. Pub. Acts 498,

is applicable only to cases commenced on or after July 1, 2011. It is therefore is not applicable to this

action, which was filed on June 24, 2011. Tennessee Code Annotated § 20-16-101 provides a standard of

review for summary judgment with the stated purpose “to overrule the summary judgment standard for

parties who do not bear the burden of proof at trial set forth in Hannan v. Alltel Publishing Co., its

progeny, and the cases relied on in Hannan.” See Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25

n.2 (Tenn. 2011).

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Williams, 350 S.W.3d 527, 536 (Tenn. 2011) (quoting Martin v. Norfolk S.

Ry., 271 S.W.3d 76, 84 (Tenn. 2008)). “A grant of summary judgment is

appropriate only when the facts and the reasonable inferences from those

facts would permit a reasonable person to reach only one conclusion.”

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citing

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). “The

granting or denying of a motion for summary judgment is a matter of law,

and our standard of review is de novo with no presumption of correctness.”

Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010).

Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013).

Pursuant to Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal

grounds upon which the court denies or grants the motion” for summary judgment, and

our Supreme Court has recently instructed that the trial court must state these grounds

“before it invites or requests the prevailing party to draft a proposed order.” Smith v.

UHS of Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).

Insofar as our analysis requires statutory interpretation, our Supreme Court has

summarized the principles involved as follows:

When dealing with statutory interpretation, well-defined precepts apply.

Our primary objective is to carry out legislative intent without broadening

or restricting the statute beyond its intended scope. Houghton v. Aramark

Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing

legislative enactments, we presume that every word in a statute has

meaning and purpose and should be given full effect if the obvious

intention of the General Assembly is not violated by so doing. In re

C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we

apply the plain meaning without complicating the task. Eastman Chem.

Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is

simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,

Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is

ambiguous that we may reference the broader statutory scheme, the history

of the legislation, or other sources. Parks v. Tenn. Mun. League Risk

Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a

statute cannot be considered in a vacuum, but “should be construed, if

practicable, so that its component parts are consistent and reasonable.”

Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any

interpretation of the statute that “would render one section of the act

repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of

Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must

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presume that the General Assembly was aware of any prior enactments at

the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926

(Tenn. 1995).

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).

Regarding the standard of review specific to application of the family purpose

doctrine, our Supreme Court has explained:

Application of the family purpose doctrine involves a mixed question of

law and fact. Therefore, “our standard of review is de novo with a

presumption of correctness extending only to the lower court‟s findings of

fact.” Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 305 (Tenn. 2005).

Although a presumption of correctness attaches to the trial court‟s findings

of fact, we are not bound by the trial court‟s determination of the legal

effect of its factual findings, nor by its determination of a mixed question of

law and fact. State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Grp.

Trust, 209 S.W.3d 595, 599 (Tenn. Ct. App. 2006).

Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn. 2011) (analyzing the family purpose

doctrine within the context of the trial court‟s grant of summary judgment).

IV. Prima Facie Evidence Pursuant to Tennessee Code Annotated § 55-10-311(a)

Ms. Daniels contends that the trial court erred by failing to find a statutorily

created agency relationship between Mr. Norris as the owner of the truck and Ms.

Huffaker as the driver, pursuant to Tennessee Code Annotated § 55-10-311(a) (2012).

The trial court in its specific findings, incorporated into the final judgment, found no

evidence that Ms. Huffaker was acting as Mr. Norris‟s agent when she drove his truck.

The court found that although Ms. Huffaker may have been a “permissive user,” that

status did not make her an agent of the owner. On appeal, Mr. Norris has conceded that

Ms. Huffaker was a permissive user of the truck. He argues that the trial court properly

found that Tennessee Code Annotated § 55-10-311(a) does not operate to create an

agency relationship between the truck‟s owner and the driver in this action because no

employer-employee relationship existed between them. We agree with Mr. Norris on this

issue.

As a threshold matter, we note that the truck‟s undisputed registration in Mr.

Norris‟s name on the date of the accident is prima facie evidence of his ownership of the

vehicle. See Tenn. Code Ann. § 55-10-312(a) (2012); see also Gray v. Mitsky, 280

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S.W.3d 828, 830 (Tenn. Ct. App. 2008). Ms. Daniels‟s argument then requires an

analysis of Tennessee Code Annotated § 55-10-311(a), which provides:

(a) In all actions for injury to persons and/or to property caused by the

negligent operation or use of any automobile, auto truck,

motorcycle, or other motor propelled vehicle within this state, proof

of ownership of the vehicle shall be prima facie evidence that the

vehicle at the time of the cause of action sued on was being operated

and used with authority, consent and knowledge of the owner in the

very transaction out of which the injury or cause of action arose, and

the proof of ownership likewise shall be prima facie evidence that

the vehicle was then and there being operated by the owner, or by

the owner‟s servant, for the owner‟s use and benefit and within the

course and scope of the servant‟s employment. The prima facie

evidence rules of the preceding sentence shall also apply in cases of

the negligent operation of a vehicle being test-driven by a

prospective purchaser with the knowledge and consent of the seller

or the seller‟s agent, whether or not the seller or the seller‟s agent is

present in the vehicle at the time of the alleged negligent operation.

In support of her argument, Ms. Daniels relies in part on this Court‟s decision in

Strine v. Walton, 323 S.W.3d 480 (Tenn. Ct. App. 2010), for the proposition that “„an

owner‟s testimony negating the issue of agency, standing alone, cannot overcome the

statutorily created prima facie evidence of an owner-driver agency relationship created by

Tennessee Code Annotated section 55-10-311(a).‟” See Strine, 323 S.W.3d at 488

(quoting Godfrey v. Ruiz, 90 S.W.3d 692, 695-96 (Tenn. 2002)). However, this Court in

Strine explained the important distinction between the first and second parts of the statute

as follows:

The first part of the statute establishes prima facie evidence of knowledge

and consent on the part of the owner. The second part of the statute

establishes prima facie evidence of an agency relationship when the vehicle

is being operated by the owner‟s servant/employee. Both parts of the

statute were at issue in Godfrey and the Supreme Court held that the owner

had failed to negate the prima facie evidence of an agency relationship. The

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present case does not involve a servant/employment situation, and thus

there is no statutorily created prima facie agency relationship.

Id. at 489 n.3.3

In Strine, this Court concluded that Tennessee Code Annotated § 55-10-311(a)

(2012) established prima facie evidence that the owner of the subject vehicle had allowed

his adult son to loan the vehicle to an unrelated driver with the “authority, consent, and

knowledge” of the owner. Id. at 488. This Court did not, however, find that the agency

relationship of employer/employee existed and instead analyzed the issue according to

the family purpose doctrine. Id. at 489 (concluding that “Father‟s evidence was

insufficient to overcome the prima facie evidence created by the statute that [the driver]

was operating the vehicle with Father‟s authority, knowledge, and consent.”). As this

Court further explained:

Although the statute creates prima facie evidence that [the driver]

was operating the vehicle with the authority, knowledge, and consent of

Father, this does not automatically mean that Father is liable for [the

driver‟s] actions. Tenn. Code Ann. § 55-10-311 does not create any cause

of action but rather establishes certain prima facie evidence. “Permissive

use, standing alone, establishes only a bailment. In and of itself it is not a

basis for the imposition of personal liability upon the owner of a vehicle.”

Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 385 (Tenn. 1986). To

hold otherwise would create strict liability for a vehicle owner anytime

someone was allowed to drive his or her vehicle, which is not the law in

Tennessee; hence the law addressing agency relationships, the family

purpose doctrine, and the tort of negligent entrustment, etc.[FN4]

[FN4] If an owner of a vehicle were liable simply because they

allowed someone to use their car, then we would be imposing strict liability

and there would be no need whatsoever for the family purpose doctrine or

the tort of negligent entrustment.

Id.

Similarly, in the instant action, we conclude that the prima facie evidence created

by Tennessee Code Annotated § 55-10-311(a) establishes that Ms. Huffaker was driving

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Effective July 1, 2012, the General Assembly amended Tennessee Code Annotated § 55-10-311 to add

what is now subsection (b) regarding automobile dealers who provide loaner vehicles to customers while

their vehicles are being repaired. In Strine, this Court was referring to the two parts of subsection (a),

which have remained unaffected by the 2012 amendment. See 2012 Pub. Acts, Ch. 884, § 1.

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the truck on the day of the accident with Mr. Norris‟s authority, knowledge, and consent

as the truck‟s owner. There existed no evidence, however, that the vehicle was being

operated by the owner‟s employee. The statutorily created prima facie evidence does not

establish an agency relationship between Mr. Norris and Ms. Huffaker. See Strine, 323

S.W.3d at 489. As in Strine, this leads us to Ms. Daniels‟s contention that the trial court

erred when it granted Mr. Norris summary judgment on her claim brought pursuant to the

family purpose doctrine. See id.

V. Family Purpose Doctrine

Ms. Daniels contends that the trial court erred by finding that she would be unable

to prove two required elements of the family purpose doctrine at trial. Mr. Norris

contends that the trial court properly found that no genuine issue of material fact existed

that would show that Mr. Norris was a head of Ms. Huffaker‟s household or that Ms.

Huffaker was fulfilling a family purpose when the accident occurred. Upon our review

of the undisputed facts and the record as a whole, we conclude that the trial court

properly granted summary judgment on this issue because Ms. Daniels would be unable

to prove that Mr. Norris was a head of Ms. Huffaker‟s household when the accident

occurred. See Sykes, 343 S.W.3d at 25 (explaining that pursuant to the applicable

summary judgment standard, a moving party may shift the burden of production to the

non-moving party by “show[ing] that the nonmoving party cannot prove an essential

element of the claim at trial.”) (quoting Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8

(Tenn. 2008)).

The family purpose doctrine is “„a court-created legal fiction‟ that employs agency

principles to hold the owner of the vehicle vicariously liable” for a family member‟s

negligent operation of the vehicle. See Starr, 353 S.W.3d at 482 (quoting Thurmon v.

Sellers, 62 S.W.3d 145, 156 (Tenn. Ct. App. 2001)). In order for the family purpose

doctrine to apply to the instant action, Ms. Daniels first must be able to show that Mr.

Norris was a head of Ms. Huffaker‟s household. See id. Provided she could establish

this element at trial, Ms. Daniels would also need to show that Mr. Norris maintained the

truck “„for the purpose of providing pleasure or comfort for [his] family‟” and that Ms.

Huffaker was using the truck at the time of the accident “„in furtherance of that purpose

with the permission, either express or implied‟” of Mr. Norris. See id. (quoting Strine,

323 S.W.3d at 489) (additional internal citations omitted). See also Thurmon v. Sellers,

62 S.W.3d 145, 156 (Tenn. Ct. App. 2001) (“The true test is whether the driver was

engaged in the owner‟s business at the time of the accident, with business here meaning

the furnishing of pleasure to the owner‟s family.”).

In determining that the family purpose doctrine did not apply to this action, the

trial court stated its specific findings in relevant part:

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The testimony was, basically, except for times when she had a flare-

up or disagreement with her boyfriend, at best she would be staying with

the boyfriend at least three days a week, then staying with maybe her sister

part of the time. But the other problem is I don‟t think the Defendant

maintained this vehicle for the use of that sister, and her intermediate

staying in the home. And I don‟t think the sister was on the Family

Purpose, because this is not a direct relative. This is a sister staying there

and I don‟t think he maintained this vehicle for the purpose of letting the

sister drive to go see her boyfriend. You could make the argument letting

her drive it to work may have been.

But for those two reasons I don‟t think the vehicle was being used

for the Family Purpose, if she is a member of the family, and for what

purpose it was maintained. Because it is different from an immediate

family member. And secondly, I don‟t [think] he maintained this vehicle

for that type of family use. I think she‟s a transient visitor in the home,

rather than a constant resident. I don‟t think there was ever any intent,

which is the test here, of Mr. Norris to maintain that vehicle for her use.

The trial court thus found that Ms. Daniels would not be able to prove two essential

elements of the family purpose doctrine: (1) that Mr. Norris was a head of Ms.

Huffaker‟s household and (2) that Ms. Huffaker had been using the vehicle in furtherance

of a family purpose.

In considering whether the owner of a vehicle is a head of the driver‟s household

under the family purpose doctrine, “appropriate factors to consider include whether there

is a family relationship between the owner and the driver and whether the owner has a

duty to support the driver.” Starr, 353 S.W.3d at 485-86 (“Our review of the common

law in Tennessee and elsewhere reveals that the identification of a family member as a

head of the household is primarily based on his or her family relationship and duty to

support the driver rather than place of residency.”). In the instant action, a family

relationship of brother-in-law to sister-in-law existed between Mr. Norris and Ms.

Huffaker at the time of the accident. The trial court found, however, that in relation to

Mr. Norris, Ms. Huffaker was not “an immediate family member” and that she was only a

“transient visitor” in the Norrises‟ home. Mr. Norris asserts that these findings indicate

that Ms. Daniels would be unable to prove at trial that he had a duty to support Ms.

Huffaker. He posits that Ms. Daniels would therefore be unable to prove that he was a

head of Ms. Huffaker‟s household. We agree.

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At the time of the accident, Ms. Huffaker was twenty-eight years old. She

testified that she had attended college for four semesters but was no longer enrolled in

classes. In 2010, she had been employed by two companies, one a restaurant and the

other a gas station/convenience store. By June 2010, she was working only at the gas

station/convenience store. At some point a few months before the accident, Ms. Huffaker

“lost” the apartment she had been renting and moved in with her boyfriend at his

apartment complex on Dutch Valley Drive. Ms. Huffaker testified that she then moved in

with Ms. Norris for four to six months while Mr. Norris was stationed in Iraq. She

qualified this by stating that she “was, honestly, back and forth because that‟s where [her]

boyfriend live[d] as well . . . .” She explained that her boyfriend‟s apartment was located

approximately two and one-half miles from the Norrises‟ home, and she estimated that

she went to her boyfriend‟s apartment approximately three days a week. She received

her mail at her boyfriend‟s address. At the time of the January 2014 deposition, Ms.

Huffaker resided with her boyfriend at his same Dutch Valley Drive address. When

questioned regarding whether the Norrises ever provided her with any kind of financial

support, Ms. Huffaker answered, “I don‟t believe so.” When questioned regarding

whether she had paid rent to Ms. Norris in 2010, she stated that she could not remember

specifically but that she “was probably paying rent to her.”

Mr. Norris testified that he was deployed on active duty in February 2010 and

returned home from Iraq in August 2010. When he arrived home, his truck was in the

process of being repaired following the accident. When questioned regarding where he

believed Ms. Huffaker resided at the time of the accident, he stated that Ms. Huffaker

“was kind of a floater” but that to the best of his knowledge, she lived with her boyfriend

at the apartment on Dutch Valley Drive. Ms. Norris testified that in June 2010, Ms.

Huffaker “mainly lived with her boyfriend, but she went back and forth between our

homes.” Ms. Norris explained that when Ms. Huffaker was in conflict with her

boyfriend, “she knew that she could . . . just come to our house and decompress and stay

as long as she wanted, because she‟s my sister.”

Ms. Daniels acknowledges that Ms. Huffaker was an adult earning her own

income at the time of the accident. She argues, however, that Ms. Huffaker was residing

in the Norrises‟ home and that her status as a sibling to Ms. Norris created a household

consisting of the Norrises and Ms. Huffaker. Ms. Daniels points to this Court‟s

observation in Nat’l Ins. Assoc. v. Simpson, 155 S.W.3d 134, 139 (Tenn. Ct. App. 2004),

that “the legal significance of paterfamilias has given way in modern times to a broader

concept of family.” In Nat’l Ins., this Court defined “household” for the purpose of

analyzing a family member exclusion provision in an automobile insurance policy as “a

group or set of persons who dwell together as a family under the same roof.” Id. This

Court further explained:

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Residence in a household also requires a degree of permanence and

intention to remain in the household for an indefinite period of time. It

connotes a settled or permanent status. Thus, a temporary visit by a relative

does not make the relative a resident of the household because it is

temporary and there is no melding of the family unit. Likewise, a landlord-

tenant relationship or a simple roommate arrangement does not create a

household.

Id. (internal citations omitted). Thus, even by this somewhat more expansive definition

applicable to determining household membership for insurance purposes, Ms. Huffaker

must still be considered a transient visitor to the Norrises‟ household who gave no

indication during the months of Mr. Norris‟s deployment that she intended to remain for

an indefinite period of time or maintain permanent status in the home. In addition, Ms.

Huffaker‟s testimony that she may have paid rent to Ms. Norris would indicate that she

considered herself in the nature of a tenant rather than a household member.

As to the factor of a duty to support, Ms. Daniels cites to no controlling authority

that would indicate Mr. Norris was under a recognized duty to support his adult sister-in-

law. She instead asks this Court to “extend” the doctrine of assumption of duty to

conclude that it would be possible for a jury to find that Mr. Norris had assumed a duty to

support Ms. Huffaker by providing her with shelter and possibly other necessities. As

Mr. Norris points out, the authorities upon which Ms. Daniels relies in support of this

argument address a host‟s assumed duty to prevent foreseeable injury or render aid to a

guest. See, e.g., Lindsey v. Miami Dev. Corp., 689 S.W.2d 856 (Tenn. 1985) (involving a

host‟s duty to render aid to an injured guest); Downen v. Testa, No. E2002-01320-COA-

R3-CV, 2003 WL 2002411 (Tenn. Ct. App. May 1, 2003), perm. granted (Tenn. Dec. 1,

2003) (involving a host‟s duty when a guest consumed alcohol prior to an automobile

accident). We decline to extend the doctrine of assumption of duty in this manner.

Moreover, even resolving the existence of any genuine issue of material fact in Ms.

Daniels‟s favor, as we must on summary judgment, we are unable to conclude that Mr.

Norris was supporting his sister-in-law at the time of the accident or that he was under a

duty to do so. We therefore conclude that Mr. Norris was not a head of Ms. Huffaker‟s

household at the time of the accident.

Ms. Daniels also posits that a genuine issue of material fact exists regarding

whether Ms. Huffaker was operating the truck at the time of the accident in furtherance of

a family purpose. She argues that because testimony differed as to whether Ms. Huffaker

was paying rent to Ms. Norris, use of the truck for Ms. Huffaker‟s employment could be

found to constitute a family purpose. Additionally, she argues that because furthering the

pleasure of one family member can be considered a family purpose, Ms. Huffaker‟s

travel to her boyfriend‟s apartment on the day of the accident could constitute a family

12

purpose. See Starr, 353 S.W.3d at 487 (noting that providing a vehicle as a source of

transportation for one family member may provide a benefit to the family unit as a

whole); Gray, 280 S.W.3d at 831 (“The case law in this state teaches that a driver can be

operating a vehicle for a family purpose „even if the driver is only using the automobile

for his own pleasure or convenience.‟”) (quoting Thurmon, 62 S.W.3d at 156)).

Ms. Daniels‟s arguments in this regard are dependent upon her argument that Ms.

Huffaker was a member of the Norris household. Having concluded that no genuine

issue of material fact exists that would allow Ms. Daniels to prove that Ms. Huffaker was

a member of the Norris household, we further conclude that any issue regarding the

purpose of Ms. Huffaker‟s use of the truck is pretermitted as moot. Upon our thorough

review of the record, we determine that the trial court did not err by granting summary

judgment in favor of Mr. Norris on Ms. Daniels‟s claim pursuant to the family purpose

doctrine.

VI. Negligent Entrustment

Ms. Daniels also contends that the trial court erred by concluding that she would

be unable to prove that Mr. Norris was liable for her damages through the tort of

negligent entrustment. She maintains that Ms. Huffaker was demonstrably an

incompetent driver at the time of the accident because she was unfamiliar with the truck

she was driving and because she did not possess a valid driver‟s license. Mr. Norris

posits that Ms. Huffaker‟s relative unfamiliarity with the truck and suspended license are

not proof of incompetence and that even if they were, Mr. Norris was unaware of them.

We conclude that given the undisputed facts underlying this action, Ms. Daniels would

not be able to prove the essential element of the entrustor‟s knowledge of alleged

incompetence.

In comparison to the family purpose doctrine, liability under the doctrine of

negligent entrustment attaches to the vehicle‟s owner for the owner‟s act of entrusting the

vehicle to an incompetent driver, as opposed to liability attaching vicariously to the

owner for the driver‟s act of operating the vehicle negligently. See Ali v. Fisher, 145

S.W.3d 557, 564 (Tenn. 2004) (holding that negligent entrustment does not create

vicarious liability). For a plaintiff to succeed on a claim of negligent entrustment

“„requires proof that a chattel was entrusted to one incompetent to use it with knowledge

of the incompetence, and that its use was the proximate cause of injury or damage to

another.‟” West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 554 (Tenn. 2005) (quoting

Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 907 (Tenn. 1996)). In West,

our Supreme Court also cited with approval the following definition of negligent

entrustment:

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One who supplies directly or through a third person a chattel for the use of

another whom the supplier knows or has reason to know to be likely

because of his youth, inexperience, or otherwise, to use it in a manner

involving unreasonable risk of physical harm to himself and others whom

the supplier should expect to share in or be endangered by its use, is subject

to liability for physical harm resulting to them.

West, 172 S.W.3d at 554 (quoting Restatement of (Second) of Torts § 390 (1965)).

Ms. Daniels attached a printout of Ms. Huffaker‟s “criminal record” to her

response to the motion for summary judgment. This record, later acknowledged by Ms.

Huffaker in her deposition testimony, demonstrated that she had pled guilty on

September 3, 2008, in the Knox County General Sessions Court to a charge of driving

without a valid license for the type of vehicle and had incurred a $10.00 fine. Ms.

Huffaker testified that by the time of the deposition in January 2014, she had not

possessed a valid driver‟s license “for years.” Regarding her driving record, she stated:

“Whenever I got pulled over for speeding on Pellissippi, I would also get in trouble for

not having – or having expired tags.” According to Ms. Huffaker, her driver‟s license

had been suspended by the time of the accident, and had remained suspended, because of

her inability to pay accumulated fines assessed for speeding and expired vehicle

registration. Ms. Huffaker further testified that Ms. Norris knew nothing of her driver‟s

license suspension or driving record until after the accident at issue occurred. Mr. and

Ms. Norris, respectively, corroborated this lack of knowledge before the accident.

The trial court in its specific findings, incorporated into the final judgment, stated

in relevant part:

I don‟t think this [is] a Negligent Entrustment case for several reasons. . . .

I think the wife is acting as the alter ego of the Defendant in this case. So

what she did, I think in normal situations, would be considered not agent

but she‟s acting for the benefit of her husband and for the benefit of them.

But in this case there‟s no proof in this record that [Mr. and Mrs. Norris]

knew anything about the way [Ms. Huffaker] drove; either he or she, would

indicate that this person was a dangerous driver for some reason.

The driver‟s license thing you can argue they should have known, or

how you would know without somebody saying it, I don‟t know. But even

if you can get over that, I don‟t think that means you‟re a dangerous driver,

which is what the case law says. It‟s not the relevant test for a dangerous

driver. So I don‟t think there‟s a Negligent Entrustment case, or a

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contested issue of fact about a Negligent Entrustment. So The Court grants

the motion to dismiss the case against Mr. Norris on the basis of Negligent

Entrustment.

We address first the issue of Ms. Huffaker‟s alleged incompetence at the time she

was entrusted with the truck. Ms. Daniels bases her incompetence argument on the

undisputed facts that (1) Ms. Huffaker was relatively unfamiliar with the truck and (2)

she was driving with a suspended driver‟s license at the time of the accident. Regarding

her unfamiliarity with the truck, Ms. Huffaker testified that she had driven it only a few

times before the day the accident occurred. Ms. Daniels offered no proof that this

particular vehicle, a Ford F-150 pick-up, required specialized driver training to operate.

She also offers no authority for her premise that unfamiliarity with a particular vehicle

renders the driver incompetent. For us to so hold would be to indicate that an individual

driving a new type of vehicle would ipso facto be an incompetent driver in that situation,

and we certainly find no basis to reach such a conclusion.

Regarding the effect of Ms. Huffaker‟s suspended driver‟s license, Ms. Daniels

relies on this Court‟s decision in Herndon v. Hughes, No. 02A01-9706-CV-00128, 1998

WL 90745 (Tenn. Ct. App. Mar. 4, 1998), for the proposition that a driver‟s revoked

license can establish the driver as incompetent. We determine Herndon, which involves

a commercial car seller‟s entrustment of a vehicle to an unlicensed driver, to be factually

distinguishable from the instant action. In Herndon, this Court concluded that summary

judgment was improperly granted to the car seller primarily because “the record before

the trial court consisted only of the Complaint and an unsworn Answer” and the

complaint stated a possible cause of action. Herndon, 1998 WL 90745 at *2-4

(“Although we do not feel that lack of a driver‟s license necessarily equates with driving

incompetence, some jurisdictions have created a statutory duty on the part of car dealers

to investigate whether a potential customer is properly licensed.”). Moreover, this Court

previously has held that “in Tennessee negligent entrustment cannot be inferred from the

mere fact that the driver did not have a driver‟s license.” Person v. Wilson, No. M2006-

00873-COA-R3-CV, 2007 WL 1585171 at *4 (Tenn. Ct. App. May 31, 2007) (citing

Dukes v. McGimsey, 500 S.W.2d 448, 451-52 (Tenn. Ct. App. 1973)); see also Smith v.

Henson, 381 S.W.2d 892, 898 (Tenn. 1964) (“[T]he mere fact that an individual is

unlicensed does not render the owner of an automobile liable for the negligence of a

borrower where such fact has no causal connection with the injury or damage.”).

Although the absence of a driver‟s license would not give rise to a genuine issue

of material fact as to Ms. Huffaker‟s competence to use the truck safely, the fact that she

had numerous speeding citations underlying the suspension of her license could. See,

e.g., Strine, 323 S.W.3d at 483, 491 (emphasizing that under a different set of procedural

circumstances, the plaintiff may have been able to bring an action for negligent

15

entrustment against the son of the vehicle‟s owner when the son entrusted the vehicle to

an unrelated driver who had been found at fault in a previous accident and had a record of

speeding citations and other traffic citations). The fatal flaw in Ms. Daniels‟s claim,

however, is her failure to present any evidence that Ms. Norris had knowledge of Ms.

Huffaker‟s history of speeding citations. The unrefuted deposition testimony in the

record by Ms. Huffaker, Mr. Norris, and Ms. Norris is that the Norrises had no

knowledge of Ms. Huffaker‟s driving record at the time of entrustment. Whether Mr.

Norris, as the sole remaining named defendant, personally entrusted the truck to Ms.

Huffaker or only did so indirectly through Ms. Norris is immaterial if no genuine issue of

material fact exists to prove that Ms. Norris possessed knowledge of Ms. Huffaker‟s

alleged incompetence as a driver at the time of the entrustment.4

We determine that no genuine issue of material fact exists that would allow Ms.

Daniels to prove the essential element of the entrustor‟s knowledge of Ms. Huffaker‟s

alleged incompetence within the context of negligent entrustment. The trial court did not

err in granting summary judgment to Mr. Norris on this claim.

VII. Negligence Per Se

Finally, Ms. Daniels asserts within her negligent entrustment argument on appeal

that the Norrises were under a statutory duty to inspect for a valid driver‟s license before

allowing Ms. Huffaker to operate their vehicle, pursuant to Tennessee Code Annotated §

55-50-504(d) (2012). Tennessee Code Annotated § 55-50-504 delineates, inter alia, the

penalties for driving a motor vehicle while such privilege is cancelled, suspended, or

revoked. Subsection (d) provides:

(d) No person shall authorize or knowingly permit a motor vehicle

owned by the person or under the person‟s control to be driven upon

any highway by any person who is not authorized hereunder or in

violation of any of the provisions of this chapter.

Although this issue is couched within her negligent entrustment argument, Ms.

Daniels raises the issue as a matter of negligence per se and does so for the first time on

appeal. See Rains v. Bend of the River, 124 S.W.3d 580, 589 (Tenn. Ct. App. 2003)

(“Negligence per se arises when a legislative body pronounces in a penal statute what the

conduct of a reasonable person must be, whether or not the common law would require

similar conduct.”); see also Shorter v. McManus, No. 03A01-9704-CV-00132, No. 1997

WL 718972 at *6-7 (analyzing an alleged violation of Tennessee Code Annotated § 55-

4

We note that although Mr. Norris testified that he did not have knowledge of the entrustment to Ms.

Huffaker until after the accident occurred, he has conceded that upon his deployment, he left the truck

within the full control of Ms. Norris and that Ms. Huffaker was a permissive user of the truck.

16

50-504(d) as an allegation of negligence per se). We therefore find that Ms. Daniels has

waived her right to raise the issue of negligence per se as to Mr. Norris and the alleged

violation of Tennessee Code Annotated § 55-50-504(d) on appeal. See Tenn. R. App. P.

36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error.”); Waters v. Farr, 291 S.W.3d 873, 918

(Tenn. 2009) (“One cardinal principle of appellate practice is that a party who fails to

raise an issue in the trial court waives its right to raise that issue on appeal.”).5

VIII. Conclusion

For the reasons stated above, we affirm the order of the trial court granting

summary judgment in favor of the appellee, Keith Norris. The costs on appeal are

assessed against the appellant, Dana A. Daniels. This case is remanded to the trial court,

pursuant to applicable law, for collection of costs assessed below.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

5

We recognize that Ms. Daniels included in her complaint a claim for vicarious liability according to “all

statutory and common law presumptions of agency and ownership arising from the operation of motor

vehicles.” In her motion to alter or amend the judgment, Ms. Daniels argued, as she does on appeal, that

the trial court had failed to address an agency relationship created by Tennessee Code Annotated § 55-10-

311(a). We find no indication in the record that she addressed at any time prior to appeal an issue of

negligence per se pursuant to Tennessee Code Annotated § 55-50-504(d). See Strine, 323 S.W.3d at 490

(“We cannot conclude that the Trial Court committed error when ruling on an issue if there is nothing in

the record establishing that the issue actually was raised below.”).

17