On appeal from Superior Court, Chancery Division, Monmouth County.
Approved for Publication March 5, 1997.
Before Judges Havey, Kestin and Eichen. The opinion of the court was delivered by Eichen, J.A.D.
The opinion of the court was delivered by: Eichen
The opinion of the court was delivered by
This is a subrogation action in a motor vehicle accident case. Plaintiff sued defendants Alon Ifrah and David Ifrah for property damage sustained as a result of Alon's negligent operation of a vehicle on February 21, 1989. David, Alon's father, had purchased the vehicle for Alon's sole use as a mode of transportation to and from school. Plaintiff sought to impose liability on David as owner of the vehicle on the theory that Alon was acting as David's agent when the accident occurred.
The motion Judge granted summary judgment in favor of plaintiff against David, concluding that David is liable for plaintiff's damages because he failed to rebut the presumption of agency, see Harvey v. Craw, 110 N.J. Super. 68, 264 A.2d 448 (App. Div.), certif. denied, 56 N.J. 479 (1970). On a motion for reconsideration, David argued that he had successfully rebutted the presumption by presenting evidence that Alon was not on an errand for him and that Alon had total control of the car. The motion Judge rejected the argument, reasoning that "it is the ... parents' ... responsibility to be sure that [Alon] has a way to get to school," and concluded that this duty created a liability on the part of Alon's father for his son's negligence. We disagree and reverse.
Principles of agency have long been settled in our jurisprudence. An agency relationship is created when one family member performs an act for another. Missell v. Hayes, 86 N.J.L. 348, 350, 91 A. 322 (E. & A. 1914); Doran v. Thomsen, 76 N.J.L. 754, 757, 71 A. 296 (E. & A. 1908). When one is on his own business, convenience or pleasure, he is acting solely for himself and not for any "family purpose." Paul v. Flannery, 128 N.J.L. 438, 442, 26 A.2d 553 (E. & A. 1942); Wirth v. Gabry, 120 N.J.L. 432, 433, 200 A. 556 (Sup. Ct. 1938) (citing Doran, (supra) ), aff'd, 122 N.J.L. 95, 4 A.2d 281 (E. & A. 1939). Here, David's blameless furnishing of the means of transportation for his son to attend school does not support the Conclusion that Alon was acting for a "family purpose" so as to justify holding David vicariously liable for his son's negligent operation of the vehicle. This court's recent observations in Haggerty v. Cedeno, 279 N.J. Super. 607, 611-12, 653 A.2d 1166 (App. Div.), certif. denied, 141 N.J. 98 (1995), support this principle:
New Jersey's common law rule regarding owner liability [in the context of automobile-related injuries] is not designed to protect the injured party, in this case a New Jersey resident, or to protect the driver. It is designed to shield an owner from liability in cases in which the owner has not been negligent and in which the culpable driver is not related to the owner in a way that will justify the imposition of vicarious liability under traditional principles of the law of agency or master servant. That shield is consistent with the principle that tort liability in the context of automobile-related personal injuries is based on fault.
Because no agency relationship exists under the facts of this case, we are constrained to reverse the summary judgment in favor of plaintiff.