# FILED
July 16, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ANNABEL DR

OUSSIOTIS, ) Appeal No. ) 01A01-9612-CV-00548 Plaintiff/Appellant, ) ) VS. ) Rutherfor d Circuit ) Case No. 31892 CINDY DAMRON, DONALD DAMRON, ) and MRS. DONALD DAMRON, ) ) Defendants

/Appellees. )
IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM TH

E CIRCUIT C OURT OF R UTHERFOR

D COUNTY AT MURF REESBORO, TEN NESSEE HONORABL E J. S. DANI EL, JUDGE
Frank F ly 301 North Spring Street Murfreesboro, TN 37130 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT, Steven A. Dix 201 West Main Street Murfreesboro, TN 37130 ATTORNEY FOR DEFENDANTS/APPEL LEES
AFFI RMED AND

REMANDED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCURS: BEN H. CANTRELL , JUDGE, WILL IAM C. KOCH, JR., JUDGE-2-

ANNABEL DR

OUSSIOTIS, ) Appeal No. ) 01A01-9612-CV-00548 Plaintiff/Appellant, ) ) VS. ) Rutherfor d Circuit ) Case No. 31892 CINDY DAMRON, DONALD DAMRON, ) and MRS. DONALD DAMRON, ) ) Defendants

/Appellees. )



### O P I N I O N The captioned plaintif

f has app ealed f

rom a summa

ry judgmen t overrulin g her mo ti on for summary judgment against the defendants, Mr. and Mr s. Donald Damron, and rendering summary judgment dismissing her

suit against Mr. and Mrs. Donald Damron, parents of the third def endant, Cindy Damron, ag ainst whom a jury verdict of $552,500.00 was rendered and made the judgment of the Tr ial Court.

The complaint alleges that plaintiff wa s i nj ur ed wh en st ru ck by a vehicle operated by Cindy Damron, 22 year old da

ughter of the appe llees. Asto the liab ility

of appellees, the compl aint state s: 6. Plaintiff states that the vehicle operated by Defendant, Cindy Damron was purchased and/or maintained by Defendants, Mr.& Mrs. Dona

ld Damron , who are

the natur al pare nts of Def endant, Cindy Damron, for the g eneral use, pleasure and convenie nce of the family members, including Defendant Cindy D amron. Plaintiff states that at the time of said collision, Defendant Cindy Damron was living at home with the parents as a depe ndent of said par ents and t

hat Defe ndant, Cin dy D amron wa s using sa id vehicle for the family

purpose of driving herself back and f orth from said

home in Cof

fee Coun ty, Tenness ee to her

classesat MTSU in furtherance of the family purpose of providing a colleg e educa

tion for D efenda

nt Cindy Damron w ith the expr

ess knowledge and consent of Defe ndants, Mr. & Mrs. Donald Damron, at the time of said collision. 7. In the alternati ve, Plaint iff states t hat Defendant s, Mr. & Mrs. Dona

ld Damron , purcha sed, prov ided or ma

intained said vehicle as a joint enterprise with Defendant, Cindy Damron, based upon the expressed or implied agreement between said parties t o carry out the co mmon purpo se of pro viding transportation for the college education of De fendant, Cindy Damron and to engage in the expense sharingfor said educational purpose with each party

having an equal right to voice in the direction and to engage in the e xpense sharing for said educa--3- tional purpose with each party having an equal right to a voice in t he direction and c ontrol of said commo n educa

tional purpose. Accordingly , under the facts of this case and the law of Tennessee, any

negligence attributable to Def endant Cindy Damron is hereby

imputed to Defendants, Mr. & Mrs. Donald Damron under the Family Purpose Doctrine and/or the Joint Enterprise theory of law.
To these allegations, Mr. & Mrs. Damron re sponded: 6. The Defendants deny the allegations contained with Paragraph VI

of the Complaint, and therefore, strict proof is demanded thereof. 7. The Defendants deny the allegations contained with Paragraph VI

I of the Complaint, and therefore , strict proof is demanded thereof.

Mr. & Mrs. Damron’s Motion for Summary Judgm ent st ates as ground s onl y the foll owing: Co me n ow t he D efe nda nt s, D ONA LD an d MR S. DON ALD DAMRON (hereinafter, DONAL D and DONNA DAMRON), by a nd throug

h counsel, and would respe ctfully move this Court, pur suant to Rul e 56 of the Tenness ee Rules o f Civil Procedure, for summary judgment. The defendants would show that t

here is n o genuine issue a s to any materia l fact regarding the theories of liability asserted ag ainst these De fe nd an ts . In su pp or t o f t hi s M ot io n, a c on te mp or an eo us ly filed brief is submitted, along with the Affidavit of CI NDY DAMRON.
The unsworn memorandum contains no admissible evidence.
A subsequ ently

filed af fidavit of Cindy Damron st

ates: 1. The ve

hicle I drove on

the date of the ac cident in

this case (March 31, 1993), was titled to me. A copy of the title is attached hereto as Exhibit 1. 2. I had owned the ca

r since 1991. 3. I maintained my

own policy of insuranc e on the vehicle. 4. I w as 22 y

ears of age on the date of the ac cident. 5. I had complete control and discr etion over the use of the vehicle.-4- 6. I was going

to one of my colleg e classes at the time of the acc ident.
The title c ertific ate doesnot appea r in the record with

the aff idavit.

Su bs eq ue nt ly, plaintiff moved for summary judgme

nt against Mr. & Mrs. Damron, rely ing upon the affidavit/depositions of plaintiff, and the depositio ns of Mr. & Mrs. Damr

on which c ontain evidenc e of the f

ollowing facts: (1) Cindy Damron’s pa rents had given her older brother a vehicle after he became old enoug h to drive. (2) Cindy Damron’s pa rents likewise provided her younger bro ther w ith a v ehicl e after he beca me old enough to drive, the same vehicle they had originally

given to her older brother. (3) Neit her Cindy

Damron n or her pa

rents bou ght or pa

id for the v ehicle Cindy

was driving at the

time of the

accident because it was given to her by her Grandfather. (4) Cindy ’s fathe

r sometime s pay s to renew the lice nse plates on said vehicle. (5) Cindy’s pare

nts sometimes pay for the insuranc e on said vehicle. (6) Cindy’s y

ounger brother sometimes does the tune-ups on said vehicle. (7) As a part of these tune-ups, Cindy ’s young er brother worked on the transmission, radiator, and brakes of said vehicle. (8) When Cindy paid her y ounger brother for repa

ir work done on sa

id vehicl e, she pa

id with mone

y th at she g ot from her mother. (9) Ever y tim e said ve hicle ne eded re

pairs tha t were not done by Cindy ’s young er brother, Cindy’ s father carried said vehi cle to the

repair shop and p aid for a

ll such re pairs. (10) In addition, Cindy ’s father bought and paid for the new battery

in said vehicle and her father paid for ne w tires on said vehicle. (11) Cindy ’s older

brother installed a new ra

dio on said vehicle.-5- (12) Cindy’s fathe

r filled up said vehicle with gasoline practically e

very Sunday

afternoon so that Cindy could re tu rn fr om ho me in Tu ll ah om a t o M TS U, an d h e a lw ays paid for said gas himself. (13) The tank of gas provided by Cindy’s father e ach Sunda y a fter noon w ould l ast he

r all week , until the next Sunday after

noon.
- -- - (1) Cindy drove said ve hicle whenever she wanted. (2) Cindy did not need any one’s specific permission to drive said vehicle. (3) Cindy’s fathe

r and young er brother would also drive said vehicle from time to time. (4) Cindy

used said

vehicle to go fr om her pa

rent’s home in Tullahoma to the grocery store, post office, and to visit fr iends and relative s. (5) When Cindy used said car to go to the grocery

store in Tu ll ah om a, sh e w ou ld so me ti me s g et fo od fo r e ve rybo dy i n h er fa mi ly. (6) Cindy also used said ca r to run errands for the day care business o

perate d by

her mothe

r at their

home in Tu ll ah om a, su ch as to go to th e g ro ce ry s to re an d b uy food for all the children. (7) Cindy’s g

randfather gave her

the car because she needed transpor tation to g o from he

r home in T

ullahoma to town, to church, to

run err ands and to do thing s. (8) Cindy’s pare

nts would sometimes ride with her in said car to church and to visit re latives. (9) Cindy’s mother would sometimes ride in said c ar with Cindy to town, to t

he store , and to ba

ll game s. (10) Other family

members would sometimes ride in said car with Cindy to the groce

ry store and post off

ice. (11) From time to time Cindy would car ry her y ounger brother places s uch as to b and practice, to to wn, and to visit his friends. (12) In addition, Cindy ’s young er brother would sometimes ride in said car with her to church and to visit relatives. (13) Cindy’s g

randfather provided said car to her a t about the same time she started school at MTSU.-6- (14) At th

e time her

grand father provided said car , it was understood that part of what Cindy w ould use the car for was to go back and forth from home to MTSU. (15) Cindy did, in fact, use sa id car to go back and forth from home to school at MTSU. (16) Actually, Cindy

did very little driving e xcept to go back and forth from home to school at MTSU.

- - - - (1) Cindy lived at home with her pa rents her entire life except when she was in the dorm at MTSU. (2) After graduating

from high school, Cindy a ttended Motlow College for

three y ears and then att

ended MT SU for three y ears. (3) While attending Motlow College, Cindy lived at home with her parents in Tullahoma. (4) Cindy

continue d to live a

t the home

of her pa rents as her principal residence even af ter she enrolled at MTSU. (5 ) W he n i n M ur fr ee sb or o t o a tt en d M TS U, Ci nd y stayed only

in the dor

mitory on the MTSU

Campus. (6 ) C in dy c am e h om e f ro m M TS U p ra ct ic al ly e ve ry weekend, sometime s beginn ing on Th ursday aftern oons. (7) While at home on these weekends, Cindy would do her laundry , attend church, and eat all her meals at home. (8) Cindy

lived at h ome full time while d oing he r student teaching during her last semester at MTSU. (9) Cindy never

had a full-time job. (10) Cindy

worked f

or her mo ther’s d ay

care bu siness during the Summer but she does not know how much, how often, or at what rate her mother paid her
. (11) Cindy never

worked for any one else except for her mother. (12) Cindy worked a s an Avon representative for about two yea rs bu t d id no t r ea ll y ma ke mu ch mo ne y. (13) Cindy never

had any income

other than from her mother and Avon. (14) Cindy’s pare

nts provided financial support for her throughout her life. (15) Cindy’s pare

nts continued to provide her financial-7- support after she graduated from high school and throughout the time she attended college. (16) In addition to the other financia l support provided to Cindy by her parents while she was in college, the y also ga ve he r s pe nd in g m on ey. (1 7) Ci nd y ne ve r m ad e e no ug h m on ey o n h er ow n t o p ay for her colleg e expense s. (18) While at MTSU, whenever Cindy needed more money , her mothe

r would ta

ke money

out of her

parents ’ accou

nt and put it in

Cindy ’s account. (19) Cindy ’s mother

is on both Cindy’ s checking acc ount and savings account with her. (20) I n addition

to the abo ve suppor

t, Cindy ’s fathe

r pay s all her medical insurance and pay s for all her medical and dental e xpenses not

covere d by

insuranc e including expen ses incurred while in college. (21) Cindy’s fathe

r also provides her life insurance. (22) Cindy has neve

r paid her parents for any rent, utilities, food, telephone, or cable TV. (23) Cindy ’s pare

nts have p aid for a

ll of her v acation s except for one school trip while at MTSU. (24) Cindy’s pare

nts have provided all of the furniture Cindy has ever ha

d, and Cindy’s mother buy s her clothes for her. (2 5) Ci nd y’s pa re nt s s et up a t ru st ac co un t f or he r, mo st ly to pay for he

r college education. (26) The trust acc ount is in he

r mother a

nd fathe r’s name s as truste es. (27) Cindy’s mother and f ather regularly

contributed to the trust with money

earned from thei r jobs. (28) Cindy ’s pare

nts have c omplete c ontrol ove r the trus t accoun t. (2 9) Al th ou gh sh e s om et im es co nt ri bu te d m on ey, Ci nd y knows noth

ing about the det

ails of the trust acc ount. (30) The trust account consists only of a certificate of deposit and a savings account, and never had more than $10,000 or

$12,000 in

it. (31) Cindy got he

r first driver’s license the Summer be--8- fore she enrolled at MTSU, some three y ears after gradu ating f

rom high school. (32) Cindy never

had a car before this one. (33) C indy’s fa ther f elt t hat Ci ndy was cap able o f coll ege work and capable of getting a college degree. (34) Ac cordingly, Cindy ’s fathe r though t that it wa s in her best interest that she go to college. (35) I t was the o

pinion of Cindy ’s fathe

r that Cind

y w ould earn more money

if she had a college educa tion. (36) Cindy ’s fathe

r also believed th at it would be less likely for him to have to contribute to Cindy ’s support if she had a college education.

The Trial Court sustained the motion of Mr. & Mrs. Damron for summary judgment and overrul ed plaint

iff’s mot ion for su mmary judgmen t.

As stated above, a jury

rendered a verdict in favor of pla intiff and against Cindy

Damron for $552,500.00 which was approved and made the judgme nt of the Trial Court. Cindy Damron has not appealed from thisjudgmen t.
On appea l, plaintif f prese nts a sing le issue a s follows: Does the Family Purpose Doctrine apply to the f

acts of this case so as to ho ld th e p ar en ts , M r. an d M rs . D am ro n, fi na nc ia ll y re sp on si bl e for th e n eg li ge nc e o f t he ir da ug ht er , C in dy?

As worded, the issue relates to the disposition by the Trial Court of the motions of plaintiff and of Mr. & Mrs. Damron.-9- I. The Law

The “Family

Purpose Doctrine” as applied to automobiles prevails in Tennessee. Schwartz v. Johnson , 152 Tenn. App. 586, 280 S.W. 32 (1926).

The hea d of a fa mily is liable u

nder the family purpose doctrine only under the doctr ine of respondeat

superior. Messer v. Reid , 186 Tenn. App. 94, 208 S.W.2d 52 8 (1948). This suit a gainst both mothe

r and fa ther pre sents an interesting ques tion of whe ther a f amily can hav e two hea

ds.

For the family purpose doctrine to be appl icable, tw o requirements must be satisfied: the head of the household must maintain the automobile for the purpose of providing pleasure or comfort for his or her family, a

nd that the family purpose dr iver must have been using the motor vehicle at the time of the injury in further ance of that purpose with the permission, either express or implied, of the owner. Camper v. Minor , Tenn. App., 915 S.W.2d 437 (1996).

The family

purpose d

octrine is inapplic able

unless the pers on on whom l iability is sought to be imposed owned, maintained or furnished the automobile for t h e benefit of his family

or had or exercisedsome degree of control over its continued use by the family. Bole s v. Russe ll , 36 Tenn. App. 159, 252 S.W.2d 801 (1933).

Under the family purpose doctrine, the head of a family who maintains a motor vehicle for the general use, pleasure a nd convenie

nce of th e family , is liable

for the negligence of

any member of the famil y dr iving the vehicle withhis consent, either express or implied, but liability is imposed only when it can be done consistently with the principles of respondeat superior. Redding v. Barker , 33 Tenn. App. 132, 230 S.W.2d 202 (1950).-10- In Hill v. Smith , 32 Tenn. App. 172, 222 S.W.2d 207 (1949), where a mother furnished an automobile

to her minor son to drive to and from a Y.M.C.A. meeting for his mora l and cultur al benefit, this Court

held that the mother

was held liable fo r the negligenc e of the s on while o n said errand, quot ing King v. Smy th , 140 Tenn. App. 217, 204 S.W. 296 (1918), 5 Am. Jur., Sec. 371; 64 A.L. R. 878 whe

rein the Tenness ee Supre

me Court sa

id: “Th e la w of

age ncy i s no t co nfi ned to bus in ess tra nsa cti ons . It is true tha

t an autom

obile is no t a dang erous ins trumenta lity so to make the owner liable, as in the case of a wild animal loose on the streets; but, as a matter of practical justice to those who are injured, we cannot close our eyes to the fact that an automobile possesses excessive weight, that it is capable of running a t a rapid ra te of spe ed, and w

hen moving

rapidly upon the st

reets of a populous city, it is dange rous to life and limb and must be operated with care. I

f an instrumentality of this kind is placed in the hands of his family by a father, for the family ’s pleasure, comfort, and entertainment, the dictates of natural justice should require that the o wner should be re sponsible for its ne glige

nt operation, because only

by doing so, as a

general rule, can substantial justice be attained. A judgment for damag es against an infant daughter or an infant son, or a son without support and without property, who is living as a member of the family , would be an empty for

m. The father, as owner of the automobile and as head o f the fa

mily , can pre scribe th

e conditi ons upon wh

ich it may be run upon the r

oads and streets, or he can forbid its use altogether. He must know the nature of the instrument and the probability that its neglig ent operation will produce injury and damage to others. We think the practical administration of justice between the parties is more the duty of the court than the preservation of some esoteric theory concerning the law of principal and agent. If owners of automobiles are made to understand that they will be held liable for injury to person and property occasioned by their negligent operation by infants or o thers who a re financ ially irre sponsible , they will doubtless exercise a greater degree of care in selecting those who are permitted to go upon the public streets with such dangerous instrumentalities.” (Emphasis supplied.)

In Driver v . Smith , 47 Tenn. App. 505, 339 S.W.2d 135 (1960), a minor daughter obtained special permissio n to use the parent’s vehicle for pleasure during which she permitted a minor friend to control the vehicle, and he neglige ntly cau sed a col lision which seriously injured severa l occupa nts of the vehicle. This Court affirmed a judgment ag ainst the owner-father on special grounds set out therein, i.e., failure to exercise suitable control ove r the daughter.-11- The facts of

the pres ent case

are not c omple te ly c onsonant with those of any published Tennessee decision.
CindyDamron w as not a

minor at th

e time of t he injury . She was a

college student attending Middle Tennessee State University . She was driving a vehicle which s he ha d owned since 1991, which was titled in her own name and over the use of which she exercised complete control. She
wa s o n h er wa y to me et on e o f h er co ll eg e c la ss es at th e t im e o f t he in ju ry.

The vehicle was given to Cindy Damr on by her g

randfather for her particular use in attending school, but various member s of the f amily rode with her fro m time to time

and occ asionally

used it.

While in colleg e, Cindy

Damron u su ally spe nt the weekend at home where she did her laundry, attended church and ate her meals during the weekend.
CindyDamron never ha

d remune rative e mploy ment. At all material times, her support was furnishedby her par

ents out of

trust funds contributed by them and by contributions in kind, such as gasoline, utilities, insurance, furniture and clothing.

Mr. Damron desired that his daughter attend colle ge and cons idered t

hat it wasin her be st interest to do so.

Eachof Cindy Damron’ s sibling s was pre sented w ith a per sonal aut omobile upon receiving a driver’s license.
Cindy Damron’s brother

performed the labor for maintaining her vehicle.

One question arising from these facts is whether multiple automobiles furnishe d specif ically-12-

to particular members of a family and not for the general and unrestricted use of all members of the family are “f amily purpose” vehicle s?

Another question i s where

the head (or hea ds) of the family do not furnish the a utomobile, but“maintain” it by furnishing fuel, oi l, and parts, license and insurance, does this participation constitute “maintenance” or furnishing of the ve hicle to support the family purpose doctrine?

A third issue is, whether furnishing 100% of support (but, not furnishing the autom

obile) to a minor for attending college r ender a parent liable under the fa mily purpose doctrine?

A fourth issue is wheth er such suppo rt wit hout furni shin g the ve hicle to an a dult colle ge studentrender s a pare

nt liable u

nder th e family purpose doctr ine or the doctrine of respondeat superior?

This Court conclu d es that the facts of the pres ent case

do not qua

lify under the

family purpose doctrine or the doctrine of respondea t superior.

Even thou gh a vehicle might be purchased and maintaine d by the head or heads of a family for the solebenefit of a single member of a fa mily, the vehicle in the prese nt case was not purchased, owned or controlled by

the heads of the family

who provided maintenance.

Alth ough the education of a minor student might be said to be the “business” of the stude nts parents , the operator or the vehicle in the present ca se was not a minor for whom her

parentshad an obligation to furnish

an educ ation to fu

rnish an advanced education, and wasnot generally subject to the con trol of the parents .-13- For the rea son state d, the judg ment of the

Trial court is affir

me d. Costs of this appeal are taxed ag ai ns t p la in ti ff

an d h er su re ty. The cause is remanded to the Trial Court for further necessary procee dings.

AFFI RMED AND REMANDED

_____________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

________________________________ BEN H. CANTRELL , JUDGE

________________________________ WILL IAM C. KOCH, JR., JUDGE