Strine v. Walton

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 10, 2010 Session

ROBERT STRINE, ET AL. v. JOSHUA WALTON, ET AL.

Appeal from the Circuit Court for Jefferson County
Nos. 20,672-III, 20,908-II Rex Henry Ogle, Judge

No. E2009-00431-COA-R3-CV - FILED APRIL 15, 2010

On July 7, 2005, Ashley Strine (“Plaintiff”) was injured while riding in a vehicle being
driven by Joshua Walton (“Walton”). The vehicle was owned by James Rice (“Father”), who
had given the vehicle to his son, Kevin Rice (“Son”), for Son’s personal use. On the day of
the accident, Son had given Walton permission to use his vehicle to pick up Plaintiff. Walton
and Plaintiff were planning on attending a birthday party later that day. Plaintiff originally
sued only Walton and Father. As to Father, Plaintiff asserted liability based on the family
purpose doctrine and negligent entrustment. Over two years later, Son was added as a
defendant. An order of compromise and dismissal was entered as to Walton. Thereafter,
Father and Son filed a joint motion for summary judgment. The Trial Court granted Father
summary judgment on Plaintiff’s claims pursuant to the family purpose doctrine and
negligent entrustment. With regard to Son, the Trial Court concluded that all claims against
him were barred by the one-year statute of limitations. Plaintiff appeals. We affirm the
judgment of the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Dan C. Stanley and Travis E. Venable, Knoxville, Tennessee, for the Appellants, Robert and
Grace Strine, individually and as guardian and next friend of Ashley Strine, a minor.

Jon M. Cope and Hudson T. Ellis, Knoxville, Tennessee, for the Appellees James Rice and
Kevin Rice.
 OPINION

Background

In this car wreck lawsuit, Plaintiff’s complaint was filed on January 30, 2006,
and alleges that on July 7, 2005, Plaintiff1 was a passenger in a vehicle being driven by
Walton. Plaintiff claimed that Walton “failed to stop at a stop sign and failed to yield to the
right of way of another vehicle being driven by Joseph Clabo, causing [Plaintiff] serious and
life-threatening injuries.” Plaintiff alleged that Walton was both negligent and negligent per
se. Plaintiff also sued Father, the owner of the vehicle being driven by Walton. Plaintiff
alleged as to Father:

At the time of the collision, defendant Joshua Walton was
driving a vehicle owned or co-owned by and registered to
[Father] and was operating said vehicle with the permission of
[Father]; his negligence is therefore imputed to [Father] by
virtue of the doctrine of respondeat superior and T.C.A. § 55-
10-311: Prima facie evidence of ownership of automobile and
use in owner’s business and T.C.A. § 55-10-312: Registration
prima facie evidence of ownership and that operation was for
owner’s benefit, and the family purpose doctrine. (Emphasis in
original).

On April 7, 2006, Walton answered the complaint and admitted that he was
involved in an automobile accident and that Plaintiff was a passenger in the vehicle. Walton
admitted that the vehicle was owned by and registered to Father. Walton expressly averred,
however, that he was operating the vehicle with the permission of Son. Walton generally
denied being negligent and further denied any liability to Plaintiff.

In July of 2006, Plaintiff amended her complaint to sue Alta Hart and Frank
and Twylia Preston d/b/a Hillcrest Orchard, claiming that a sign owned by the Prestons and
located on land owned by Hart contributed to the accident because the sign was placed in
such a way as to create a defective or unreasonably dangerous condition. These three new
defendants were voluntarily dismissed in December of 2007. Even though Son was expressly
identified in Walton’s April 2006 answer as the person who gave Walton permission to drive

1
The complaint was filed by Ashley Strine’s parents, individually and on behalf of their daughter,
who was a minor at the time of the accident. For ease of reference only, we will refer to Ashley Strine
singularly as “Plaintiff”.

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the vehicle, Plaintiff did not attempt to add Son as a defendant when she amended her
complaint in July 2006.

Father answered the amended complaint on September 20, 2006. In his
answer, Father admitted that he was the owner of the vehicle being driven by Walton on the
day of the accident, and that the vehicle was registered in his name. Father, however,
asserted that “defendant Walton was operating the vehicle without the express or implied
permission of [Father].” Father denied the remaining pertinent allegations contained within
the complaint and denied any liability to Plaintiff.

In June of 2008, Plaintiff again sought to amend the complaint. This time,
Plaintiff sought to add Son as a defendant. Specifically, Plaintiff asserted that she sought to
“amend [her] Complaint to add defendant Kevin Rice . . . under the doctrine of negligence
and negligent entrustment.” On July 9, 2008, the Trial Court allowed the complaint to be
amended even though it was amended: (1) three years after the accident occurred; (2) over
two years and four months after the original complaint was filed; and (3) two years and two
months after Son initially was identified as the person who gave Walton permission to drive
the vehicle.

On July 21, 2008, an Order of Compromise and Dismissal was entered as to
defendant Walton, and he was dismissed from the case. This lawsuit proceeded against
Father and Son.

In September 2008, Father and Son filed a joint motion for summary judgment.
Father and Son claimed that, based on the undisputed material facts, the family purpose
doctrine and the doctrine of negligent entrustment did not apply in this case. They further
alleged that the undisputed material facts established that they could not be held liable for
Walton’s negligence. Finally, Son claimed that the statute of limitations had run against him.
Son also claimed that the discovery rule was inapplicable and, therefore, could not toll the
running of the statute of limitations as to him. Plaintiff, of course, opposed the motion for
summary judgment. Several depositions were filed in support of and in opposition to the
motion for summary judgment. These depositions were of Plaintiff, Walton, Father, and Son,
and we will discuss the pertinent portions of these depositions.

Walton testified in his deposition that he was eighteen years old at the time of
the accident and had been licensed to drive for one year. Walton testified that he was
involved in another automobile accident about six months before the accident giving rise to
this lawsuit. When asked to describe the previous accident, Walton explained that he “was
going around a turn and a truck had hit the back end of me, spun me around, and went into
a driveway.” Walton added that this accident was “blamed” on him. Walton acknowledged

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that Son was aware of this previous accident. Prior to the accident in question, Walton had
“a couple” of speeding tickets and a ticket for “failure to use a blinker.” He also was cited
for illegal window tinting and non-working taillights. Since the accident in July 2005,
Walton has been involved in another accident. When describing this new accident, Walton
stated it was raining “real bad” and his brakes locked up and he rear-ended a car that was in
front of him.

On the day of the accident, Walton owned a vehicle but it was not in working
condition. Walton explained that he and Son were staying temporarily with a friend, Louis
Lara, while Mr. Lara’s father was out of town. Walton and Son had been friends for a year
and a half and went to school together. Walton never met Father before the accident. The
vehicle Son had been driving was a 1995 Nissan Altima. Prior to the accident, Walton had
never driven Son’s vehicle.

When asked about the accident, Walton testified that he and Plaintiff were
intending to go to a birthday party at Alladin’s Castle located at East Town Mall in
Knoxville. The day before the party, Walton asked Son if he could borrow his car the
following day to go pick up Plaintiff. Son was not going to be using his car at that particular
time because he would be at work with Mr. Lara, and they were going to ride to work
together. Walton explained that since Son was not going to be using his vehicle, Son agreed
to let Walton use the car and gave him the car keys. Walton intended to pick Plaintiff up the
next day and return to Lara’s residence with Plaintiff. Thereafter, Son was going to take
Walton and Plaintiff to Alladin’s Castle to attend a birthday party for one of Plaintiff’s
friends. After dropping Walton and Plaintiff off at the mall, Son was going to return to
Lara’s residence. In other words, Son was not going to stay at the mall with Walton and
Plaintiff.

On the day of the accident, Walton called Plaintiff and told her he was on his
way to pick her up. Walton then left in Son’s car to go get Plaintiff. While Walton
remembers picking up Plaintiff and driving with her in the car, he has no memory at all of
the accident or how the accident took place. Walton testified that even though he always
stopped at the stop sign where the accident occurred, he has no memory of whether he
actually stopped at the stop sign on the day of the accident.

Son never told Walton that he (i.e., Son) did not have permission to let anyone
else drive the Altima. Other than the day of the accident, Walton has never driven a car
owned or being used by Son. However, according to Walton, Son had allowed Mr. Lara to
borrow his car several times. Walton stated that after the accident, Son told him that he was
not supposed to let anyone drive the car. Walton responded, “Well, it’s a little late for that,

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isn’t it, now?” Walton stated that his trip to get Plaintiff was purely for his personal benefit.
Neither Father nor Son received any benefit from Walton’s use of the Altima.

Plaintiff testified that at the time of the accident, she was seventeen years old.
Plaintiff does not remember much about the day of the accident. Obviously, she and Walton
had made plans, and she remembers speaking to Walton on the telephone. Plaintiff did not
know where Walton had come from prior to picking her up, and she did not recognize the car
he was driving. She remembers Walton being at her front door, but does not remember
anything after that. She has vague memories of being in the hospital. Plaintiff has no
memory at all of how the accident happened. Plaintiff was told that Walton ran a stop sign
and they were “t-boned” by another car. Plaintiff does not recall who told her this.

Plaintiff never met Father or Son before the depositions taken in this case.
Although Plaintiff and Walton had dated a few times, they were not going on a date on the
day of the accident. When asked if Walton was running an errand or going somewhere for
the benefit of anyone else on the day of the accident, Plaintiff responded “[n]ot that I’m
aware of.” When asked if Walton was working or delivering anything at the time of the
accident, Plaintiff responded “[n]ot that I’m aware of.” Plaintiff stated that she had no
personal knowledge as to whether Walton had permission to use the car he was driving at the
time of the accident. Plaintiff stated that based on the accident report, she is aware that
Walton was not the owner of the car that he was driving.

Plaintiff testified that “sometimes” she was nervous about Walton’s driving
capabilities because he would fool around or drive too fast. However, on the day of the
accident she obviously felt safe enough to get into the car with Walton driving. Plaintiff is
not aware if Walton has any sort of a reputation with respect to his driving abilities.

Son’s deposition was filed with the Trial Court. Son currently drives a 2000
Mercury Mountaineer which he owns. Prior to that, Son drove a 1994 Ford Ranger which
was given to him by Father and which was titled in Son’s name. Son did not let anyone drive
the Ranger. Prior to the Ranger, Father had given Son a Toyota pickup truck and a Jeep
Cherokee. Both of these cars were titled in Son’s name but were given to Son by Father.

Son acknowledged that Father owned the Altima that Walton was driving at
the time of the accident. Son initially testified that he had no memory of any conversations
he had with Father about the Altima after it was purchased. Son later testified that there were
several occasions where Father told him not to let anyone else drive the Altima. Son had
been driving the Altima for approximately a year and a half when the accident occurred. Son
denied letting Louis Lara drive his vehicle. The Altima was registered in Father’s name, and
Father gave Son permission to drive the vehicle. Son stated that other than his mother, no

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one else was supposed to drive the Altima. Son’s mother had driven the Altima once or
twice.

Son described Walton as a “crazy” driver. Son rode with him once or twice,
and Walton was “always wanting to speed and stuff.” Son stated that he was “worried” when
he let Walton borrow his car because the car was unreliable. The only time Son loaned his
car to someone other than his mother was when Walton borrowed the car and wrecked it.
On the day of the accident, both Son and Walton were staying with Louis Lara. Walton’s car
was not running and needed a new clutch. Son initially testified that he did not tell anyone
that the Altima was Father’s car and that he was not allowed to let anyone else drive the
Altima. Son later testified that both Walton and Lara knew that he was not supposed to let
anyone drive the Altima. Son then testified that he was not sure who he told that no one was
allowed to drive the Altima, but he was sure he had told at least one person.

According to Son, on the day of the accident he and Lara had carpooled to
work together. They got back to Lara’s residence about 3:00 p.m. and learned that Walton
had been in a wreck and was in the hospital. Son acknowledged that he told Walton he could
borrow his car. Son did not ask Father for permission to let Walton borrow the car. Son
stated that he should have asked Father for permission to let Walton drive the car. When
asked if he thought Father would have allowed Walton to drive the car, Son stated “no.”

Son let Walton borrow his car so Walton could go get Plaintiff, whom Son had
never met. Son told Walton to have the car back at Lara’s residence by the time Son returned
from work. After the accident, Father “reprimanded” Son several times over the fact that he
was not supposed to let anyone else drive the vehicle. After the Altima was wrecked, Father
gave Son a Jeep Cherokee. Father signed the Jeep Cherokee over to Son. The Altima was
the only car where Father put any restrictions on Son’s use. Son never met Plaintiff prior to
the accident and met her for the first time at his deposition.

Father also was deposed. Father testified that he has never met Walton. Father
acknowledged that he was the registered owner of the Altima that Walton was driving on the
day of the accident. Father occasionally drove the Altima, but that car primarily was for
Son’s use. Father paid for the car insurance on the Altima and paid extra for Son to be
covered. Even though Son had full use of the vehicle on the day of the accident, Father had
told Son not to let anyone else drive that vehicle. If Father had known that Son had let
someone drive the Altima, he would have taken the car away from Son. When asked if he
talked to Son about the accident, Father stated that Son told him that Walton had asked to
borrow the car when Son was “half asleep” and that Son said he could.

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 In February of 2009, the Trial Court granted the joint motion for summary
judgment. According to the Trial Court:

1. The defendant, James Rice, has negated an
essential element of the plaintiffs’ claims by showing that based
on the undisputed material facts of this case that the defendant,
James Rice, did not owe any duty to the plaintiffs and further,
that the defendant, James Rice, cannot be vicariously liable as
a matter of law to any of the plaintiffs under any applicable legal
doctrine and/or law.

2. The burden shifted to the plaintiffs to show that
there was a genuine issue of material fact in dispute regarding
defendant, James Rice.

3. Plaintiffs have failed to show that there is a
genuine issue of material fact as to whether the defendant,
James Rice, owed any duty to the plaintiffs, and/or was
vicariously liable under any applicable doctrine and/or law.

4. The defendant, James Rice, is entitled to Summary
Judgment as a matter of law.

5. Defendant, Kevin Rice, has asserted and put forth
in the record sufficient proof to establish an affirmative defense
regarding the one-year statute of limitations for personal
injuries. Tenn. Code Ann. § 28-3-104. As such, the defendant,
Kevin Rice, is entitled to Summary Judgment as a matter of law
regarding all of the plaintiffs’ claims against him, as said claims
are barred by the applicable one year statute of limitations for
personal injuries in the State of Tennessee.

Plaintiff appeals raising the following issues, which we take verbatim from her
brief:

I. Did the Trial Court err in holding as a matter of law that
James Rice could not be held liable for Plaintiff’s
injuries pursuant to T.C.A. § 55-10-311?

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 II. Did the Trial Court err in holding as a matter of law that
James Rice could not be held liable for Plaintiff’s
injuries pursuant to the Family Purpose Doctrine?

III. Did the Trial Court err in holding as a matter of law that
James Rice could not be vicariously liable for the actions
of his son, Kevin Rice, who negligently loaned the Rice
vehicle to an incompetent driver, who caused injuries to
Plaintiff?

IV. Did the Trial Court err in holding that [the] discovery
rule did not apply to Kevin Rice, and that any cause of
action against Kevin Rice is barred by the one-year
statute of limitations pursuant to T.C.A. § 28-3-104?

Discussion

Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:

The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
law, no presumption of correctness attaches to the judgment, and
our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d
49, 50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the

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 nonmovant’s claim or demonstrate that the nonmoving party
cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).

Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). 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.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

Plaintiff’s first issue is her claim that the Trial Court erred “in holding as a
matter of law that James Rice could not be held liable for Plaintiff’s injuries pursuant to
T.C.A. § 55-10-311.” In relevant part, Tenn. Code Ann. § 55-10-311 provides as follows:

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

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 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. . . .

Tenn. Code Ann. § 55-10-311 (2008).

In Godfrey v. Ruiz, 90 S.W.3d 692 (Tenn. 2002), our Supreme Court gave an
in-depth discussion of the application of Tenn. Code Ann. § 55-10-311, stating as follows:

This case turns on the application of Tennessee Code
Annotated section 55-10-311(a) (1998)2 . . . . The plaintiffs rely
exclusively on this statute to establish that the van that struck
their vehicle was operated with the defendants’ knowledge and
consent and that it was operated for the defendants’ use and
benefit and within the course and scope of the driver’s
employment. The defendants argue that their undisputed
testimony establishes that there was no agency relationship.
That testimony, they assert, is sufficient to overcome the prima
facie evidence of agency that the statute creates.

In Hamrick v. Spring City Motor Co., this Court observed
that Tennessee Code Annotated section 55-10-311 does not
contain the word “presumption,” although prior versions of the
statute did. 708 S.W.2d 383, 387 (Tenn. 1986). We concluded
that as a consequence of this legislative change “a serious
question is presented as to whether or not [a] prima facie case
can be overcome pre-trial by motion for summary judgment.”
Id. In Warren v. Estate of Kirk, this Court’s most recent case
construing Tennessee Code Annotated section 55-10-311(a), we
reiterated that “[s]ummary judgment is not ordinarily the proper
procedure for determining whether a prima facie case has or has
not been overcome by countervailing evidence.” 954 S.W.2d
722, 724 (Tenn. 1997) (quoting Hamrick, 708 S.W.2d at 388).
In both Hamrick and Warren, we reversed the grant of summary
judgment in favor of the defendant. In this case, too, summary
judgment is unwarranted.

2
For purposes of this appeal, the current version of Tenn. Code Ann. § 55-10-311 (2008) remains
essentially unchanged from the version at issue in Godfrey.

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 Tennessee Code Annotated section 55-10-311 is clearly
intended to eliminate the difficulty encountered by injured
parties who are trying to prove that the driver was operating
with the owner’s permission at the time of the accident. See
Racy Cream Co. v. Walden, 1 Tenn. App. 653, 668 (1925)
(holding that an earlier version of the statute, enacted by Chapter
162 of the Public Acts of 1921, was intended to ease the
difficulty of proving an agency relationship between a vehicle’s
driver and its owner). We decline to permit parties to overcome
the statutorily created prima facie evidence of an owner-driver
agency relationship by simply asserting that no consent was ever
given. Such a construction would defeat the legislative intent
that Tennessee Code Annotated section 55-10-311 be liberally
construed.

The plaintiffs in this case are entitled to rely solely on the
owner-driver agency relationship created by Tennessee Code
Annotated section 55-10-311(a) to overcome the defendants’
motion for summary judgment. Although the defendants offer
uncontroverted testimony in support of their motion for
summary judgment, their status as interested witnesses places
their credibility in question. The defendants’ uncorroborated
testimony that Mr. Corpus was not a permissive user simply fails
to rebut the prima facie evidence established by statute.
Therefore, their motion for summary judgment was improperly
granted.

There may be rare cases involving the application of
Tennessee Code Annotated section 55-10-311 in which
summary judgment is appropriate. As we noted in Hamrick,
“[there may be some instances where summary disposition could
be warranted.” 708 S.W.2d at 389. Thus, we do not hold that
proof of ownership is always sufficient to overcome summary
judgment, regardless of the facts presented by the
defendants. . . . We preserve the possibility that courts may
grant summary judgment or a directed verdict on behalf of a
vehicle’s owner in a negligence case if the owner has provided
evidence other than his own testimony that the driver was not
acting as the owner’s agent when the accident occurred. . . .

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 We hold 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).
Therefore, the lower courts erred in granting the defendants’
motion for summary . . . .

Godfrey, 90 S.W.3d at 695-96.

We agree with Plaintiff that Father’s evidence was insufficient to overcome the
prima facie evidence established by Tenn. Code Ann. § 55-10-311. The first part of this
statute creates prima facie evidence that the vehicle was being operated with the authority,
consent, and knowledge of the owner, i.e., Father.3 The only evidence that Walton in fact
was not operating the vehicle with Father’s authority, knowledge, or consent comes from the
testimony of Father and Son, both of whom are interested witnesses. Walton testified that
Son never told him that he was not allowed to drive the vehicle. This is not the same as
affirmatively testifying that he drove the vehicle without Father’s consent. Because the only
proof addressing whether Walton actually was operating the vehicle with Father’s consent
comes from Father and Son, two very interested witnesses, we conclude that Father’s
evidence was insufficient to overcome the prima facie evidence created by the statute that
Walton was operating the vehicle with Father’s authority, knowledge, and consent.

Although the statute creates prima facie evidence that Walton was operating
the vehicle with the authority, knowledge, and consent of Father, this does not automatically
mean that Father is liable for Walton’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

3
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 present case does not involve a servant/employment situation, and thus there is no
statutorily created prima facie agency relationship.

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law in Tennessee; hence the law addressing agency relationships, the family purpose
doctrine, and the tort of negligent entrustment, etc.4

This leads us to Plaintiff’s next issue, which is her claim that the Trial Court
erred when it granted Father summary judgment on her claim pursuant to the family purpose
doctrine. In Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996), our Supreme Court stated:

The family purpose doctrine has been in effect in
Tennessee for nearly eighty years, King v. Smythe, 140 Tenn.
217, 204 S.W. 296 (1918), and according to at least one court,
has been “firmly established in this state.” Stephens v. Jones,
710 S.W.2d 38, 42 (Tenn. App. 1984). Under the doctrine, the
head of a household who maintains a motor vehicle for the
general use and convenience of the family is liable for the
negligence of any member of the family driving the vehicle,
provided the driver received express or implied consent.

The family purpose doctrine is applicable when two
requirements have been satisfied. First, the head of the
household must maintain an automobile for the purpose of
providing pleasure or comfort for his or her family. Scates v.
Sandefer, 163 Tenn. 558, 44 S.W.2d 310 (1931). Second, the
family purpose driver must have been using the motor vehicle
at the time of the injury “in furtherance of that purpose with the
permission, either expressed or implied, of the owner.”
Redding, 230 S.W.2d at 205. See also Stephens v. Jones, 710
S.W.2d 38 (Tenn. App. 1984); Long v. Tomlin, 22 Tenn. App.
607, 125 S.W.2d 171 (1938) (emphasis added).

Camper, 915 S.W.2d at 447. As noted by this Court in Gray v. Mitsky, 280 S.W.3d 828
(Tenn. Ct. App. 2008), 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.” Id. at 831 (quoting Thurmon v. Sellers, 62 S.W.3d 145, 156 (Tenn.
Ct. App. 2001)) (emphasis added).

4
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.

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 Based on the depositions of Plaintiff, Walton, Father, and Son, there simply is
no genuine issue as to whether Walton was operating the vehicle for the purpose of
furnishing “pleasure to the owner’s family.” Id. The undisputed material facts show that
Walton was operating the vehicle purely for the benefit of himself and Plaintiff. In short,
Walton was picking up Plaintiff so he and Plaintiff later could attend a birthday party of one
of Plaintiff’s friends. Plaintiff had never even met Father or Son. Neither Father nor Son
obtained any benefit whatsoever by Walton’s use of the vehicle. Likewise, the undisputed
material facts demonstrate that Walton was not acting as an agent for Father or Son at the
time of the accident. Walton’s and Plaintiff’s testimony mandates this finding. We conclude
that the Trial Court correctly granted summary judgment to Father on Plaintiff’s claim
brought pursuant to the family purpose doctrine.

Plaintiff’s next issue is her claim that the Trial Court erred when it held that
Father “could not be vicariously liable for the actions of [Son], who negligently loaned the
Rice vehicle to an incompetent driver, who caused injuries to Plaintiff.” The fatal problem
with this argument is that Plaintiff never argued to the Trial Court that Father should be held
vicariously liable for Son’s negligent entrustment of the vehicle to Walton. Plaintiff argued
below that Father was directly liable for negligently entrusting the vehicle to Son, and that
Son was directly liable for negligently entrusting the vehicle to Walton. We, however, have
reviewed the complaint, the amended complaints, as well as Plaintiff’s response to
Defendants’ motion for summary judgment, and Plaintiff never alleged or argued that Father
could be held vicariously liable for Son’s negligent entrustment of the vehicle to Walton, an
altogether separate theory from what Plaintiff alleged in the pleadings.

There is nothing in the Trial Court’s final judgment indicating that this
argument was made to or rejected by the Trial Court.5 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. It is well-settled that an issue not raised in the trial
court cannot be raised for the first time on appeal. See Barnes v. Barnes, 193 S.W.3d 495,
501 (Tenn. 2006) (“Issues not raised in the trial court cannot be raised for the first time on
appeal.”).

We next discuss whether the Trial Court correctly granted summary judgment
to Father on Plaintiff’s claim of negligent entrustment for Father’s entrusting the vehicle to
Son. In Watrous v. Johnson, No. W2007-00814-COA-R3-CV, 2007 WL 4146289 (Tenn.
Ct. App. Nov. 21, 2007), no appl. perm. appeal filed, this Court stated:

5
The order granting summary judgment indicates that a hearing was held on January 12, 2009. We
have not been provided a transcript of that hearing on appeal.

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 Tennessee recognizes the tort of negligent entrustment as
defined in the Restatement (Second) of Torts. West v. East
Tenn. Pioneer Oil Co. d/b/a Exxon Convenience Store, 172
S.W.3d 545, 554 (Tenn. 2005) (citations omitted). Section 390
of the Restatement provides:

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.

Restatement (Second) of Torts § 390 (1965). . . . Thus, to
succeed on a claim of negligent entrustment, a plaintiff must
demonstrate 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.
East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 554 (Tenn.
2005)]. . . .

Watrous, 2007 WL 4146289, at *2, 3 (emphasis added).

We hold that the Trial Court correctly granted summary judgment to Father on
Plaintiff’s claim that Father had negligently entrusted the vehicle to Son. The reason for this
is simple: Son was not driving the vehicle at the time of the accident. Thus, even assuming
(without deciding) that one and a half years before the accident, Father negligently entrusted
the vehicle to Son, Plaintiff cannot satisfy the second element of her claim, i.e., that the
vehicle’s use by the person to whom the vehicle was negligently entrusted was the proximate
cause of the injuries. In short, Son was not using the vehicle at the time of the accident.

In reaching this conclusion, we emphasize two things. First, even though we
conclude that Plaintiff’s negligent entrustment claim against Father properly was dismissed,
this does not mean that Father, as owner of the vehicle, could not have been held vicariously
liable under agency principles for Son negligently entrusting the vehicle to Walton. As stated
previously, however, such a claim never was alleged in the Trial Court by Plaintiff.

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 Second, our conclusion as to Father does not affect whether Son could be held
liable for negligently entrusting the vehicle to Walton. This leads us to Plaintiff’s final issue,
which is whether the Trial Court correctly determined that the statute of limitations against
Son had run by the time the complaint was amended for the second time.

The parties are in agreement that Plaintiff’s personal injury claim against Son
has a one-year statute of limitations. See Tenn. Code Ann. § 28-3-104(a)(1) (2000). On
appeal, Plaintiff argues that the statute of limitations against Son was tolled because Plaintiff
did not discover that it was Son who had loaned the vehicle to Walton until after the one year
statute of limitations had run. In short, Plaintiff relies on the discovery rule to extend the
running of the statute of limitations.

This Court discussed the discovery rule in Grindstaff v. Bowman, No. E2007-
00135-COA-R3-CV, 2008 WL 2219274 (Tenn. Ct. App. May 29, 2008), no appl. perm.
appeal filed, as follows:

[T]he statute of limitations for personal injury actions is one
year from the accrual of the cause of action. Tenn. Code Ann.
§ 28-3-104(a)(1). “When the cause of action accrues is
determined by applying the discovery rule.” John Kohl & Co.
P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998).
The discovery rule recognizes the “Hornbook principle that a
cause of action in tort does not exist until a judicial remedy is
available to the plaintiff; [and] that before a judicial remedy
exists, two elements must coalesce, (1) a breach of some legally
recognized duty owed by the defendant to the plaintiff; (2) that
causes the plaintiff some legally cognizable damage.” Foster v.
Harris, 633 S.W.2d 304, 305 (Tenn. 1982). Thus, the statute of
limitations will not run against a plaintiff “until he discovered,
or reasonably should have discovered, (1) the occasion, the
manner and means by which a breach of duty occurred that
produced his injury; and (2) the identity of the defendant who
breached the duty.” Id. . . .

Grindstaff, 2008 WL 2219274, at *5 (emphasis in the original).

In Grindstaff, we also recognized that a plaintiff has a duty to act with
reasonable diligence to ascertain the identity of a defendant. We stated:

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 Moreover, the plaintiffs cannot simply wait for
information regarding a potential defendant to come to them.
They have a duty to investigate and discover pertinent facts
“through the exercise of reasonable care and due diligence.”
Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 520
(Tenn. 2005). If their lack of knowledge was due to a lack of
due diligence, they will not be allowed to plead ignorance and
effectively extend the statute of limitations, by way of the
discovery rule, simply because they later discovered “new”
information that they “reasonably should have discovered” much
earlier.
Id., at *6.

We note that in her brief on appeal, Plaintiff does not state exactly when she
initially “discovered” that is was Son who potentially was liable for her personal injuries.
Nevertheless, we know that the accident occurred on July 7, 2005. The original complaint
which alleged, among other things, negligence and negligent entrustment by Father was filed
on January 30, 2006. Walton filed his answer on April 7, 2006. The complaint was amended
to add Son as a defendant on June 9, 2008.

In Walton’s answer filed on April 7, 2006, Walton expressly identified Son as
the person who loaned him the car. More specifically, Walton stated: (1) that he was
operating the vehicle with the permission of Son, referred to in the answer as “Kevin Rice”;
and (2) that the vehicle was owned by Father, referred to in the answer as “James Rice.”
Thus, exercising reasonable diligence (i.e., by reading Walton’s answer), Plaintiff knew, or
reasonably should have known, no later than April 7, 2006, that it was Son, not Father, who
loaned Walton the vehicle. Plaintiff did not amend her complaint to add Son as a defendant
until June 9, 2008, over two years later. Thus, the Trial Court properly held that the statute
of limitations on any personal injury claim against Son had run, and we affirm the Trial Court
on this final issue.

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 Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the
Circuit Court of Jefferson County solely for collection of the costs below. Costs on appeal
are taxed to the Appellants, Robert and Grace Strine, individually and as guardian and next
friend of Ashley Strine, a minor, and their surety, for which execution may issue, if
necessary.

________________________________
D. MICHAEL SWINEY, JUDGE

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