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McPhee v. Tufty3/20/2001
f its findings of fact. The trial court has submitted its clarification.
II.
[ ] AMCO argues the trial court erred in ruling the family car doctrine applied in this case to render Curtis Tufty liable for Christopher Tufty's negligence.
[ ] The family car doctrine imposes liability on the owner of a vehicle for its negligent operation by one who is using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family. Staroba v. Heitkamp, 338 N.W.2d 640, 641 (N.D. 1983). The doctrine, adopted by this Court more than 80 years ago, is founded on the theory that the driver of a family car, in pursuit of recreation or pleasure, is engaged in the owner's business and is viewed as either the agent or servant of the owner. Schobinger v. Ivey, 467 N.W.2d 728, 729 (N.D. 1991). The respondeat superior theoretical basis for the doctrine is a fiction created in furtherance of the public policy of giving an injured party a cause of action against a financially responsible defendant. Michaelsohn v. Smith, 113 N.W.2d 571, 573-74 (N.D. 1962), overruled on other grounds, Schobinger, 467 N.W.2d at 730. Under the family car doctrine, the owner of the vehicle is not liable for his own negligence, but is vicariously liable for the tortious acts of the driver. Nelson v. Johnson, 1999 ND 171, 8, 599 N.W.2d 246.
[ ] Whether the family car doctrine applies depends on the totality of the circumstances. See Erdmann v. Thomas, 446 N.W.2d 245, 250 (N.D. 1989); Lauritsen v. Lammers, 161 N.W.2d 804, 805-11 (N.D. 1968). While ownership of the vehicle by the head of the household is a circumstance strongly favoring application of the doctrine, see Staroba, 338 N.W.2d at 644, to be liable under the family car doctrine, the head of the household must furnish, but need not own, the vehicle for the use, pleasure, and business of himself or a member of his family. Herman v. Magnuson, 277 N.W.2d 445, 458 (N.D. 1979).
While the element of furnishing does not hinge on legal ownership, we cannot state exhaustively the complete range of factual patterns sufficient to satisfy this requirement. Important considerations are who paid for the car, who had the right to control the use of the car, the intent of the parties who bought and sold the car, the intent of the parents and the child as to who, between them, was the owner of the car, to whom the seller made delivery of the car, who exercised property rights in the car from the date of its purchase to the date of the accident, and any other evidence that bears on the issue of who is the owner in fact. Id. at 459 (footnote omitted).
[ ] The issue of whether the family car doctrine applies is a question of fact for the trier of fact to decide. See Herman, 277 N.W.2d at 459; Lauritsen, 161 N.W.2d at 809. A trial court's findings of fact will not be set aside unless they are clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Hamers v. Guttormson, 2000 ND 93, 4, 610 N.W.2d 758.
[ ] The trial court found Curtis Tufty was the "sole owner of the Toyota, or he was a co-owner, joint owner, or owner in common" with his son, and he "furnished" the Toyota to his son "as a family auto." We conclude the trial court's findings are not clearly erroneous, and support its ultimate finding the family car doctrine applies.
[ ] Although the Toyota was not actually registered in the name of either Curtis or Christopher Tufty, Curtis Tufty had be
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