Defendant Hewitt asked his live-in girlfriend, Fuller, to drive a car owned by one of his businesses to: (1) transport a boy living with Hewitt to school; and (2) drop off a letter for another of Hewitt’s businesses (which employed Fuller). While trying to drop the boy off, Fuller collided with Plaintiff Alosi’s motorcycle, injuring him. Alosi initially sued Fuller and both of Hewitt’s businesses, but later moved to amend his complaint to name Hewitt as a defendant. The trial court allowed the amendment on the theory of “agency and respondeat superior,” but not based on the family purpose doctrine. Hewitt moved for summary judgment on the agency theory, which the trial court granted. Because Alosi’s claims against Fuller and Hewitt’s businesses had settled, the trial court entered a final judgment. Alosi timely appealed.
The Arizona Appeals Court affirmed. The Court first held that the trial court properly denied Alosi leave to assert a claim against Hewitt based on the family purpose doctrine. The family purpose doctrine applies when there is, among other things, “a family with sufficient unity so that there is a head of the family.” Pesqueira v. Talbot, 7 Ariz. App. 476, 480, 441 P.2d 73, 77 (1968). After discussing the history of the doctrine and cases interpreting it, the Court explained that the rationale of the doctrine does not support its application to married or unmarried couples because there is no “head” of the family in such circumstances. The Court also explained that the doctrine does not apply when an independent adult is driving a vehicle. Because Fuller and Hewitt were equals rather than Hewitt being “head” of a family, and because Fuller was an independent adult, the doctrine did not apply.
The Court next held that the trial court properly granted summary judgment to Hewitt on the vicarious liability claim. A principal is not liable for physical harm caused by an agent who is not a servant, unless the act which caused the harm was done in a manner directed or authorized by the principal. See Consol. Motors v. Ketcham, 49 Ariz. 295, 305, 66 P.2d 246, 250 (1937). If the agent is a servant, however, respondeat superior applies. In this case, Hewitt did not direct the manner in which Fuller transported the boy to school. Furthermore, Fuller was not Hewitt’s servant because she was employed by one of Hewitt’s companies, not Hewitt himself.
Judge Kessler specially concurred. He agreed with the result, but rejected the majority’s limiting of the family purpose doctrine to relationships between parents and their children living in the same household.
Judge Swann authored the opinion; Judge Downie concurred; Judge Kessler specially concurred.
Posted by: Sharad H. Desai.