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Webb v. Day6/1/2005
tations omitted.) Smith v. Merck, 206 Ga. 361, 368 (1) (a) (57 SE2d 326) (1950). Boling worked for Pike Creek, not for Day. Boling's use of the forklift was consistent with Boling's responsibilities as a Pike Creek employee, and there is no evidence that Day, who had left the job site when Webb was injured, had the right to control the time and manner of Boling's work. See, e. g., Dix v. Shadeed, 261 Ga. App. 145, 146 (1) (581 SE2d 747) (2003) (in order to show actual agency, purported principal must assume the right to control the time, manner, and method of the purported agent's work). Nor can Boling be said to have been an apparent agent of Day, since Day did not represent Boling to be his agent. See Anderson v. Turton Dev., 225 Ga. App. 270, 275 (2) (b) (483 SE2d 597) (1997) (essence of the doctrine of apparent agency is that one represents that another is one's agent).
We thus conclude that the evidence does not support the finding of an agency relationship between Boling and Day, and that the trial court was therefore correct in not considering the hearsay statement for purposes of Day's motion for summary judgment. See Harrell v. Fed. Nat. Payables, 264 Ga. App. 501, 504 (3) (591 SE2d 374) (2003) (hearsay evidence must be eliminated from consideration in a motion for summary judgment).
2. Webb further claims that material issues of fact remain as to whether Day negligently entrusted the forklift to Boling. We disagree.
"Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness." (Emphasis in original; citation omitted.) Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 859 (6) (429 SE2d 530) (1993). Although Day did not own the forklift, liability extends to a person who had control over the use of a vehicle and negligently entrusted it to another. See Selph v. Brown Ford Co., 181 Ga. App. 547 (353 SE2d 11) (1987). However, both Day and Boling believed Boling, as a Pike Creek employee, was entitled to use the machine, and Day did not have control of the forklift because he did not have the right to permit or prohibit its use by Boling after Day left the job site. Compare Jones v. Cloud, 119 Ga. App. 697, 701-702 (b) (168 SE2d 598) (1969) (where defendant had the right to permit and prohibit the use of the vehicle, he could be liable for negligent entrustment of the vehicle).
Even if we assume there is evidence to show that Day had control of the forklift and entrusted the machine to Boling, there is no evidence that Day had actual knowledge that Boling was incompetent or had a known habit of recklessness. To the contrary, there was evidence that Boling was competent to operate a forklift. Boling had operated forklifts on "numerous occasions" during the course of his duties at Pike Creek, was experienced in the operation of heavy machinery, and had been trained not to lift persons on a forklift. Thus Day had no reason to believe that a person of Boling's experience was not a competent forklift operator.
Webb also contends that Day had actual knowledge that Boling was going to use the machine in an unsafe and improper manner by lifting someone into the air balanced on the forks of the machine, as Day had done with Boling previously. It is true that Day had previously used the forklift to raise Boling into the air to trim tree limbs. Even so, however, evidence concerning Day's use of the forklift is not evidence of Day's actual knowledge that Boling intended to use the forklift in the same unsafe ma
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