Camp v. Camp , 89 N.C. App. 347 ( 1988 )

365 S.E.2d 675 (1988)

Janet B. CAMP
v.
Gary D. CAMP and Lisa Camp.

No. 8727SC756.

Court of Appeals of North Carolina.

March 15, 1988.

Harris, Bumgardner & Carpenter by Reid C. James, Gastonia, for plaintiff-appellant.

Stott, Hollowell, Palmer & Windham by Nancy E. Foltz, Gastonia, for defendants-appellees.

ARNOLD, Judge.

Plaintiff contends that the trial court erred in granting defendants' motion for summary judgment "because there are genuine issues of material fact involved in this case and the defendants were not entitled to judgment as a matter of law."

Concerning the defendant daughter, we note that Allen v. Allen, 76 N.C.App. 504, 333 S.E.2d 530, disc. rev. denied, 315 N.C. 182, 337 S.E.2d 855 (1985), abolished a parent's right to sue his or her minor child. Therefore, the trial court was correct to grant summary judgment in favor of defendant Lisa Camp.

In reviewing the granting of summary judgment in favor of plaintiff's husband, Gary D. Camp, the family purpose doctrine must be examined. The family purpose doctrine imposes liability upon the owner or person with ultimate control over a vehicle for the negligent operation of that vehicle by a member of his or her household. Williams v. Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977).

In order to recover under the doctrine, a plaintiff must show that (1) the operator was a member of the family or household of the owner or person with control and was living in such person's home; (2) that the vehicle was owned, provided and maintained for the general use, pleasure and convenience of the family; and (3) that the vehicle was being so used with the express or implied consent of the owner or person in control at the time of the accident.

Byrne v. Bordeaux, 85 N.C.App. 262, 264, 265, 354 S.E.2d 277, 279 (1987).

The family purpose doctrine can be extended to and exercised only by one member of the family. Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963). In determining which member of the family should be held liable under the doctrine, the issue is one of control and use. Id. The question to be asked is who controls the automobile. Id.

While the term control may seem nebulous in some circumstances, there are certain factors that are used in determining what party has control of the vehicle. Ownership, while not conclusive, is an element to be considered. Id. The use of the automobile, i.e. the purpose for which the car was purchased, is also a factor. However, the most important question to be asked is who maintains or provides the automobile for the use by the family. Id. That person is the party in "control" of the vehicle. Id. Maintenance includes such acts as buying the fuel and oil for the car, paying for repairs and listing and paying taxes on the car.

In the present case, the automobile was registered in plaintiff's name but plaintiff's husband testified that he actually purchased the car and the insurance, paid the taxes and was responsible for the "maintenance" of the vehicle. There is most definitely a question as to who had "control" of the automobile. The trial court was incorrect in granting defendant Gary Camp's motion for summary judgment.

Affirmed in part, reversed in part and remanded.

WELLS and SMITH, JJ., concur.