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GRAHAM TRENT ELLIS and HOWARD ELLIS, JR., Plaintiffs, v. EDWIN L.
REEL, III; EDWIN L. REEL, JR.; THE AMERICAN LEGION AND ITS
SUBDIVISIONS; THE AMERICAN LEGION DEPARTMENT OF NORTH CAROLINA,
INCORPORATED; and CARY AMERICAN LEGION POST 67, INC.; Defendants
HARRY H. HURLEY and NANCY C. HURLEY, Co-Administrators of the
Estate of Douglas C. Hurley, Plaintiffs, v. EDWIN L. REEL, III;
EDWIN L. REEL, JR.; THE AMERICAN LEGION AND ITS SUBDIVISIONS; THE
AMERICAN LEGION DEPARTMENT OF NORTH CAROLINA, INCORPORATED; and
CARY AMERICAN LEGION POST 67, INC.; Defendants
1. Associations--youth baseball players--injuries while riding with teammate--national
and state organizations--no negligence liability
National and state American Legion organizations could not be held liable for direct
negligence in permitting a sixteen-year-old member of a youth baseball team that participates in
the American Legion baseball program to transport teammates to and from a game where the
evidence shows that the local American Legion post that sponsors the team exercised exclusive
day-to-day control over the operation of the team; the fact that the national and state American
Legion organizations had developed regulations for the baseball program and that the national
organization required that local posts purchase liability insurance naming the national
organization as an “additional insured” did not show that either the national or the state
organization was involved in the operation or control of the youth baseball program.
2. Agency--youth baseball players--injuries while riding with teammate--national and
state organizations--vicarious liability
National and state American Legion organizations were not vicariously liable under the
doctrine of respondeat superior for the alleged negligence of the manager of a youth baseball
team sponsored by a local American Legion post or of a team member who, with the manager's
permission, was driving teammates home after an out-of-town game when a one-car accident
killed one teammate and injured others where there was no evidence that either the manager or
the driver was authorized by the national or state organization to arrange transportation for or totransport team players to and from games; there was no evidence that the manager or driver was
an agent of the national or state organizations by apparent authority; and even if the manager and
driver were employees of the national and state organizations, any negligence by the manager or
the driver with respect to the transportation of players to and from games occurred outside the
scope of their employment.
3. Associations--youth baseball players--injuries while riding with teammate--local
organization--no negligence liability
A local American Legion post that sponsors a youth baseball team was not liable on a
direct negligence theory for the death of one player and injuries to other players when a vehicle
driven by a sixteen-year-old teammate overturned while he was driving them home after an out-
of-town game with the manager's permission where plaintiffs contended that the American
Legion post was negligent in allowing the teammate to drive players because of his age and
excitability, but there was no forecast of evidence that providing transportation was a duty
inherent in operating a youth baseball program with reasonable care; the American Legion post
had no knowledge of any history or record of unsafe driving by the driver-teammate; and the
team manager stated that the driver “had driven before and shown [himself] to be a safe,
responsible driver.”
4. Agency--youth baseball players--injuries while riding with teammate--local
organization--vicarious liability
Plaintiffs' forecast of evidence was sufficient for the jury to find vicarious liability by
defendant local American Legion post under the doctrine of respondeat superior for the death of
one player and injuries to other players on the post's youth baseball team in a one-car accident
while riding in a vehicle driven by a sixteen-year-old teammate with permission of the team's
coaches where the evidence presented material issues of fact as to whether the coaches were
agents of the local American Legion post, whether the teammate-driver was also enlisted as an
agent of the post by the coaches, and whether transportation of the players was within the scope
of any agency.
Appeal by plaintiffs from orders filed by Judge J.B. Allen,
Jr., in Wake County Superior Court on 18 September 1997, 24
September 1997, and 25 September 1997, granting summary judgment
for defendants The American Legion, Cary American Legion Post 67,
and The American Legion Department of North Carolina, Inc.,
respectively. Heard in the Court of Appeals 17 November 1998.
Edwards & Kirby, L.L.P, by David F. Kirby and William B.
Bystrynski, for plaintiff-appellants Dallas E. Daniels,
Donald E. Daniels, and Angela M. Daniels.
Law Offices of Walter Lee Horton, by Walter Lee Horton, for
plaintiff-appellants Graham Trent Ellis and Howard Ellis,
Jr.
DeMent, Askew, Gammon, DeMent & Overby, by Angela L. Dement,
for plaintiff-appellants Harry H. Hurley and Nancy C.
Hurley.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P., by James D. Blount, William H. Moss, and Deanna L.
Davis, for defendant-appellee The American Legion.
Patterson, Dilthey, Clay & Bryson, L.L.P., by Charles A.
Madison and Melissa Ross Matton, for defendant-appellee The
American Legion Department of North Carolina, Inc.
Teague, Campbell, Dennis & Gorham, L.L.P., by Thomas M.
Clare and Kurt F. Hausler, for defendant-appellee Cary
American Legion Post 67, Inc.
LEWIS, Judge.
This case is at the summary judgment stage. Therefore, the
forecast evidence must be viewed in the light most favorable to
the plaintiff when reviewing the grant of summary judgment. See
Thompson v. Three Guys Furniture Co., 122 N.C. App. 340, 344, 469
S.E.2d 583, 585 (1996). The evidence tends to show that
defendant Cary American Legion Post 67, Inc. (hereinafter "Cary
Post 67") sponsors a youth baseball team that participates in the
American Legion Baseball Program. On 3 July 1994, the team was
scheduled to play in Chapel Hill and later in Cary. During the 1994 season, the team's coaches and manager Jere
Morton (hereinafter “the coaches”) directed the players to meet
at Cary High School at specified times before all games, home or
away. If the game was away, the coaches arranged transportation.
Before the Chapel Hill game, the team's players and some of
their parents assembled at Cary High School. The coaches had not
rented a van to transport the players, as was their custom for
trips exceeding twenty minutes or twenty miles. They solicited
volunteers to drive players to Chapel Hill. One volunteer was
defendant Edwin L. Reel, III, a team member. At the time, Reel
was sixteen years old and a licensed driver. Reel drove several
players to the Chapel Hill game in his father's 1982 Chevrolet
Blazer.
After the Chapel Hill game, five players joined Reel for a
ride back to Cary. These players included plaintiff Graham Trent
Ellis, plaintiff Dallas E. Daniels, and Douglas Hurley. Team
manager Jere Morton followed four to five car lengths behind
Reel.
When Reel reached the exit on Interstate 40, he nearly drove
past it. One of the passengers yelled at him to turn. Reel
turned the steering wheel hard to the right, and the Blazer hit
loose gravel and rolled over several times. Ellis, Daniels, and
Hurley were thrown from the vehicle. Ellis and Daniels sustainedvery severe injuries; Hurley was killed.
Three complaints were filed by or on behalf of the players
injured or killed in the wreck. All of the complaints name as
defendants Edwin L. Reel, III, the driver of the Blazer; Edwin L.
Reel, Jr., his father and owner of the Blazer; The American
Legion; The American Legion Department of North Carolina, Inc.
(hereinafter "the North Carolina Department"); and Cary Post 67.
The Reels and the national, state, and local American Legion
defendants were alleged to be responsible for the plaintiffs'
injuries.
In September 1997, the trial court granted summary judgment
in favor of The American Legion, the North Carolina Department,
and Cary Post 67 as to all claims against them in all three
actions. Plaintiffs appealed; their appeals are consolidated and
before us now. Defendants Edwin Reel, III and Edwin Reel, Jr.
are not parties to the appeal. The requirements of summary judgment are well known. See
N.C.R. Civ. P. 56(c). Before addressing the propriety of summary
judgment with respect to each of the defendants, we review the
structure of these organizations and their relationship with one
another. We will then focus our attention on the structure of
the American Legion Baseball Program and the involvement of each
of the three defendants in it.
Defendant The American Legion is a non-profit corporation
that was created by an act of Congress in 1919. See 36 U.S.C. §§
41 et. seq. (1996). The purpose of The American Legion is
[t]o uphold and defend the Constitution of
the United States of America; to promote
peace and good will among the peoples of the
United States and all the nations of the
earth; to preserve the memories and incidents
of the two World Wars and the other great
hostilities fought to uphold democracy; to
cement the ties and comradeship born of
service; and to consecrate the efforts of its
members to mutual helpfulness and service to
their country.
36 U.S.C. § 43 (1996). The American Legion has powers enumerated
in 36 U.S.C. § 44 (1996). Headquartered in Indianapolis,
Indiana, it has almost 3 million members and approximately 275
employees. Membership in The American Legion is restricted to
those who were members of the United States Armed Forces assigned
to active duty during a time of war or hostilities between the
United States and other nations. See Constitution of TheAmerican Legion, art. IV, § 1.
The American Legion is "organized in Departments," of which
the North Carolina Department is one; local units of these
Departments are called "Posts." See Legion Const. art. III, § 1.
Departments must be chartered by The American Legion's National
Executive Committee. See Legion Const. art VIII, § 1. "The
National Executive Committee, after notice and a hearing before a
subcommittee . . ., may cancel, suspend or revoke the charter of
a Department for any good and sufficient cause to it appearing."
Legion Const. art XI, § 1.
Those desiring to form a Post must first obtain approval
from the Department in which they reside. See Legion Const. art
IX, §§ 1, 5. Approval is conditioned upon the applicants' pledge
that the Post "shall uphold the declared principles of the american
legion and shall conform to and abide by the regulations and
decisions of the Department and of the National Executive
Committee, or other duly constituted national governing body of
the american legion." Legion Const. art IX, § 4.2. "Each
Department may prescribe the Constitution of its Posts." Legion
Const. art IX, § 7. A Post's permanent charter may be suspended,
cancelled or revoked by its Department. Id.
On 1 August 1920, The American Legion issued a permanent
charter to The American Legion Department of North Carolina. This charter, a one page document, authorizes the North Carolina
Department to "establish and maintain" itself. It subjects the
North Carolina Department to "the Constitution of The American
Legion and the rules, regulations, orders and laws promulgated in
pursuance thereof." It further states,
By the acceptance of this Charter, . . . the
said Department pledges itself, through its
Posts and the members thereof, to uphold,
protect and defend the Constitution of The
United States and the principles of true
Americanism, for the common welfare of the
living and in solemn commemoration of those
who died that liberty might not perish from
the Earth.
The North Carolina Department was incorporated as a non-
profit corporation in North Carolina in 1955. It has adopted its
own Constitution and bylaws. Pursuant to its Constitution, the
Department elects its own officers and establishes its own
committees. See Constitution and Bylaws of The American Legion
Department of North Carolina, art. X, XI. It derives its
revenues from membership dues and from other sources approved by
the Department, but not from the national organization. See
Department Const. art. XII. According to its Constitution, the
purpose of the North Carolina Department is
[t]o uphold and defend the Constitution of
the United States of America; to maintain law
and order; to foster and perpetuate a one
hundred percent Americanism; to preserve the
memories and incidents of our associations inthe Great Wars; to inculcate a sense of
individual obligation to the community, state
and nation; to combat the autocracy of both
the classes and the masses; to make right the
master of might; to promote peace and good
will on earth; to safeguard and transmit to
posterity the principles of justice, freedom
and democracy; [and] to consecrate and
sanctify our comradeship by our devotion to
mutual helpfulness.
Department Const., Preamble. "No person may become or remain a
member of the Department except through membership in a Post."
Department Const. art. IV, § 1.
Cary Post 67 received a permanent charter in 1947 and was
incorporated as a non-profit corporation in North Carolina in
1991. It has adopted its own constitution and bylaws. It elects
its own officers and forms its own committees. Its charter is
subject to suspension by the North Carolina Department and
revocation by The American Legion. Department Const. art. V, §
5.
In 1994, competition in the American Legion Baseball Program
was governed by the "American Legion Baseball 1994 Rule Book"
(hereinafter the "National Rule Book"), which was prepared and
distributed by The American Legion. The National Rule Book
defines the "purpose and scope of American Legion Baseball" as
follows:
1. To inculcate in our American youth a
better understanding of the American way oflife and to promote 100% Americanism.
2. To instill in our Nation's youth a sincere
desire to develop within themselves a feeling
of citizenship, sportsmanship, loyalty and
team spirit.
3. To aid in the improvement and development
of the physical fitness of our country's
youth.
4. To build for the Nation's future through
our youth.
National Rule Book, p. 2. According to the National Rule Book,
the four items listed above "are the four permanent [and]
unchanging goals of the American Legion Baseball Program." Id.
The National Rule Book requires that "American Legion Baseball
competition . . . be played in accordance with rules set forth
and adopted by" The American Legion. Id. at 4. The following is
a representative list of provisions found in the National Rule
Book:
1. Eligibility requirements for players,
including age restrictions;
2. Requirement that teams wear "alike"
uniforms, bearing American Legion insignia,
if they reach state or national championship
play;
3. Requirement that batters and catchers wear
specified protective equipment;
4. Rules of play;
5. Prohibition against the use of any tobacco
product by any player, coach, manager, or
umpire "while on the playing field, benches,
in bullpens or dugouts";
6. Requirement that managers, coaches, and
players not "conduct themselves in anunsportsmanlike manner that would discredit"
the American Legion Baseball Program;
7. Requirement that American Legion
Departments of each state "formulate rules,
regulations and boundaries that are not in
conflict with National rules for all play
within that Department."
The North Carolina Department has indeed developed its own rule
book, but the differences between the State Rule Book and the
National Rule Book are not substantial and do not materially
affect our resolution of the issues before us.
All decisions regarding the establishment of teams, the
selection of players and coaches, and the scheduling of games are
made by the various Posts. Baseball teams are financed
exclusively by their respective Posts without funds from either
The American Legion or the North Carolina Department.
I. The American Legion and the North Carolina Department
The American Legion and the North Carolina Department are
alleged to be liable based on two theories: (1) direct
negligence with respect to the players injured or killed, and (2)
vicarious liability for the negligence of defendant Edwin Reel,
III and for the negligence of the team's coaches.
A. Direct Negligence
[1]Plaintiffs argue in their brief that The American Legion
and the North Carolina Department had a "duty to use reasonablecare in the operation of their baseball program." They further
contend that The American Legion and the North Carolina
Department breached this duty by failing "to develop
transportation policies for [the] youth baseball program that
would prevent transportation by inexperienced drivers."
At its most basic level, liability for negligence is
premised on the fact that a party is performing a particular
undertaking in a negligent fashion.
Actionable negligence presupposes the
existence of a legal relationship between
parties by which the injured party is owed a
duty by the other, and such duty must be
imposed by law. The duty may arise
specifically by mandate of statute, or it may
arise generally by operation of law under
application of the basic rule of the common
law which imposes on every person engaged in
the prosecution of any undertaking an
obligation to use due care, or to so govern
his actions as not to endanger the person or
property of others. This rule of the common
law arises out of the concept that every
person is under the general duty to so act,
or to use that which he controls, as not to
injure another.
Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897-98 (1955)
(citations omitted, emphasis added). In this case, plaintiffs'
claims that they were harmed by the negligence of The American
Legion and the North Carolina Department presuppose that these
defendants were engaged in the operation of The American Legion
Baseball Program. There is no evidence, however, that the baseball program in
which plaintiffs participated was operated by either The American
Legion or the North Carolina Department or that they controlled
it. To be sure, the play of baseball within the American League
Program was regulated by The American Legion and the North
Carolina Department, but regulating an activity is hardly the
same as engaging in it. One could not seriously maintain, for
example, that by regulating the taking of oysters from private
shellfish bottoms, the North Carolina Department of Environment
and Natural Resources is operating those oyster beds. See 15A
NCAC 3K .0200 et seq. (1991). Defendants' evidence shows that
local Posts, including Cary Post 67, exercised exclusive, day-to-
day control over the operation of their respective teams in the
American Legion Baseball Program.
Plaintiffs have not cited, nor do we find, any competent
evidence to the contrary. Plaintiffs point to the National Rule
Book's requirement that local Posts purchase liability insurance
naming The American Legion as an "additional insured," but we
fail to see the relevance of such a requirement to the issue of
whether The American Legion is actually involved in the day-to-
day operation or control of the Baseball Program. Cf. Hayman v.
Ramada Inn, Inc., 86 N.C. App. 274, 279-80, 357 S.E.2d 394, 398
(rejecting plaintiff's claim that hotel chain which licensed itsname to an independently owned hotel "implicitly accepted
responsibility and acknowledged liability for injuries on the
premises" because chain required owner to maintain liability
insurance naming chain as an additional insured ), review on
additional issues denied, 320 N.C. 631, 360 S.E.2d 87 (1987).
Thus, because neither The American Legion nor the North Carolina
Department was actually engaged in the operation of the baseball
program, they cannot be held liable for operating that program
negligently.
B. Vicarious Liability
[2]Plaintiffs' second theory is that The American Legion
and the North Carolina Department are vicariously liable for the
negligence, if any, of defendant Edwin Reel, III, and the
coaches. Specifically, plaintiffs argue that The American Legion
and the North Carolina Department had the right to control the
activities of Reel and Morton; that this control was so extensive
as to create an employer-employee relationship between the
parties; and that, under the doctrine of respondeat superior, The
American Legion and the North Carolina Department are responsible
for the negligence of their employees, Reel and Morton.
Under the doctrine of respondeat superior, a principal is
liable for the torts of its agent which are committed within the
scope of the agent's authority, when the principal “retains theright 'to control and direct the manner'” in which the agent
works. Vaughn v. N.C. Dept. of Human Resources, 296 N.C. 683,
686, 252 S.E.2d 792, 795 (1979), (quoting Hayes v. Elon College,
224 N.C. 11, 15, 29 S.E.2d 137, 139 (1944)). Of course,
respondeat superior does not apply unless an agency relationship
of this nature exists. An agency relationship arises when
parties manifest agreement that one of them shall act subject to
and on behalf of the other. See Hayman, 86 N.C. App. at 277, 357
S.E.2d at 397.
There is not a scintilla of competent evidence that either
Edwin Reel, III, or Manager Jere Morton was authorized or
directed by The American Legion or by the North Carolina
Department to arrange transportation for, or to transport, team
players to and from the baseball field. Furthermore, there is no
evidence that Reel or Morton was an agent of these defendants by
way of apparent authority. We also have determined that neither
the American Legion nor the North Carolina Department was
operating the baseball program. Thus, even assuming that Reel
and Morton were somehow employees of The American Legion and the
North Carolina Department, any negligence by Reel or Morton with
respect to the transportation of players to and from the baseball
field occurred outside the scope of their employment.
The evidence presented by The American Legion and the NorthCarolina Department established the lack of any genuine issue of
material fact and that these defendants were entitled to judgment
as a matter of law. Plaintiffs failed to rebut this evidence,
and so summary judgment as to all claims properly was granted for
The American Legion and the North Carolina Department. See Felts
v. Hoskins, 115 N.C. App. 715, 717, 446 S.E.2d 110, 111 (1994).
II. Cary Post 67
Plaintiffs' claims against Cary Post 67 essentially are
identical to their claims against The American Legion and the
North Carolina Department.
A. Direct Negligence
[3]Plaintiffs urge that defendant Cary Post 67 was
negligent in failing to have a transportation policy in place and
in failing to provide transportation to and from the games.
Direct negligence requires that the plaintiffs prove the
following elements: a legal duty, a breach of that duty, and
damages proximately caused by the breach. See Tise v. Yates
Constr. Co., Inc., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997).
Ordinarily, it is a jury's province to determine issues of breach
and causation. See Griggs v. Morehead Memorial Hosp., 82 N.C.
App. 131, 132-33, 345 S.E.2d 430, 431 (1986). However, when the
evidence viewed in the light most favorable to the non-movingparty indicates that only one conclusion of law may reasonably be
reached, summary judgment is proper. See Thompson, 122 N.C. App.
at 344, 469 S.E.2d at 585. When a defendant moves for summary
judgment, it may meet its burden by showing either (1) that an
essential element of the plaintiff's claim is missing as a matter
of law, or (2) that the plaintiff “cannot produce evidence to
support an essential element of his or her claim.” Lowe v.
Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982).
We hold that summary judgment as to plaintiffs' claim of
direct negligence was properly granted in favor of defendant Cary
Post 67. There is no evidence forecast or in the record that
tends to show that providing transportation is a duty inherent in
operating a baseball program with reasonable care. Moreover,
plaintiffs are unable to show as a matter of law that allowing
Reel to drive was a proximate cause of the injuries suffered by
plaintiffs.
We believe Johnson v. Skinner, 99 N.C. App. 1, 392 S.E.2d
634, review on add'l issues denied, 327 N.C. 429, 395 S.E.2d 680
(1990), is instructive. There, an injured motorist sued a car
dealership that had allowed its mechanic to drive his uninsured
car with its dealer license plates. The mechanic loaned his car
to his roommate, who collided with plaintiff. Plaintiff sued the
dealership that had illegally supplied the license plates under atheory that "motorists who are unable to register their vehicles
are, as a class, a somewhat greater risk of injury to people on
the highway than insured motorists." Johnson, 99 N.C. App. at
11, 392 S.E.2d at 639-40. This Court said that such a "theory of
negligence gives us pause," id. at 11, 392 S.E.2d at 640, but
found that the case was properly submitted to the jury on the
issue of negligence of the dealership. The Court explained that
submission was proper because the evidence indicated the
dealership had specific knowledge that the roommate was allowed
to drive the car and that the roommate "previously had used lack
of care in driving the [car]." Id. at 12, 392 S.E.2d at 640. As
such, the dealership's giving of the license plates to the
mechanic was a proximate cause of the injuries because the
dealership "should have foreseen a danger to other motorists"
when it allowed its mechanic to use the dealer plates. Id. at
11, 392 S.E.2d at 640.
In this case, plaintiffs urge that defendant Cary Post 67
was negligent in allowing Reel to drive players because of his
age and his excitability. In Johnson, although the theory of a
general class of more dangerous drivers gave this Court "pause,"
the case properly went to the jury because the dealership
possessed specific knowledge about the danger of the specific
driver involved. In contrast, Cary Post 67 had no knowledge ofany history or record of unsafe driving by Reel; indeed, the team
manager said Reel “had driven before and shown [himself] to be a
safe, responsible driver.” We are unwilling to say a bare
allegation that a driver is young is enough to send the causation
issue to the jury. Plaintiffs further allege that the game had
been heated and so Cary Post 67 should have known Reel would be
excitable. However, all persons present at the game saw the
excitement, and many witnessed the altercation with a Chapel Hill
parent afterwards. To say that Cary Post 67 should be on notice
that all of these individuals were potentially dangerous drivers
stretches the limits of foreseeability beyond reason. Because
only one inference can be drawn from the facts at hand, we hold
that summary judgment for defendant Cary Post 67 on the issue of
direct negligence was proper. See id. at 7, 392 S.E.2d at 637.
B. Vicarious Liability
[4]When a principal can control and direct his agent,
respondeat superior imposes liability upon the principal for the
torts of his agent. See Peace River Elec. Coop., Inc. v. Ward
Transformer Co., Inc., 116 N.C. App. 493, 504, 449 S.E.2d 202,
210 (1994), disc. review denied, 339 N.C. 739, 454 S.E.2d 655
(1995). Most commonly expressed in terms of employer-employee
relationships, the theory imposes liability when the agent's
actions within the scope of the employment and in furtherance ofthe master's business are expressly authorized or are performed
with implied authority. See Medlin v. Bass, 327 N.C. 587, 592,
398 S.E.2d 460, 463 (1990). Although there can be an agency
relationship only if the principal retains the right to control
the manner of performance, see Vaughn, 296 N.C. at 686, 252
S.E.2d at 795, driving to or from a work site at the direction of
an employer has been considered to be within the scope of
employment and sufficient to subject an employer to vicarious
liability for an employee's negligent driving. See MGM Transport
Corp. v. Cain, 128 N.C. App. 428, 431, 496 S.E.2d 822, 824
(1998).
Viewing the evidence in the light most favorable to the
plaintiffs, there is enough evidence forecast to submit the case
to a jury on the issue of vicarious liability. Plaintiffs have
alleged and presented evidence that the coaches were agents of
Cary Post 67, which allegedly was operating the baseball team.
As agents, the coaches may have enlisted Reel as an agent as
well. Factual discrepancies exist as to the agency
relationship(s), and as to whether providing transportation was
within the scope of Cary Post 67's business in operating the
team. Because the factual questions of whether Reel was an agent
of the team, and whether transportation was even within the scope
of any agency, are disputed and are material to respondeatsuperior liability, they are matters properly left to a jury.
See Thompson, 122 N.C. App. at 345-46, 469 S.E.2d at 586. We
reverse the grant of summary judgment on the claim of vicarious
liability and remand the issue for trial.
Affirmed in part and reversed in part.
Judges GREENE and HORTON concur.
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