# FILED
October 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

JEREMY P. CR

YE, a Minor, by ) KNOX CIRCUIT his next friend and Mother, ) BEVERLY A . ROGERS, a nd ) NO. 03A01-9804-C V-00142 BEVERLY A. ROGERS, In divid ually ) ) Plaintiffs/Appell

ants )

) v. ) HON. HAROLD WIMBERLY ) JUDGE LLOYD C. N

ORTON and ) MARY B. NORTON, ) ) Defendants/Appellees ) AFFIRMED
Herbert S. Monc

ier and David S. W

igler, Knoxville,

for Appellants. Paul D. Hogan,

Knoxville, for A

pellee Mary P . Norton.



### O P I N IO N

INMAN, Senio

r Judge The plaintiff, Jerem

y P. Crye , seeks to impose liability on Mar

y B. Morton for the act of her son,

Lloyd C. Norton, in shooting him. The trial judge granted her motion for

summary judgment with

out enlargement.

The plaintiff appe

als, and presents for review the issue of whether the proof rel evan t to the motion established a genuine

dispute of a mat

erial fact, thus requiring a me rit trial. The question on appeal is one of law, and the sc

ope of review is de novo withno presumption of corr ectness accompanyi

ng the judge’s conclusi

ons of law. Union Carbide Corp. v

. Huddleston, 854 S.W.2d 87 (Te nn. 1993)
.1 Which obviates a search f

or asset s held by Lloyd Nort

on in the event

his mother was

exonerated. 2 I The compl aint alleg es that on August 21, 1993, Mary B. Norton owned certain property locat

ed in Straw Plains , Knox County, Tenn essee, wh ich was managed by her son, the co-defendant Lloyd Norton, who was alleged to have been her agent, servant and employee. The plai ntiff wa s alleg edly a guest of the tenants of the property

when he was shot by

Lloyd Norton. Mary B. Norton filedher ans wer denyi ng that Lloyd Norton was her ag ent,
serv antor employee,

and averring that she

had no knowledge of the shooting incident. The plain tiff a mended his co mp laint to allege that Lloy

d Norton was the beneficial owner of the propert y becaus e he transferred it to his mother i

n 1984 without consideration. Alte rnatively, the plaintiff alleged t

hat Lloyd Nort

on owned the property as a joint venturer or partner with his mother. 1 The complaint was

again a mended to

allege that the defendants were landlords within the mea ning of T.C.A.§ 66-28-105(5) and “ were subject to the duties of a landlord to provid e essential servic

es within the meaning of T.C.A. § 66 -28-502(3),” which Lloyd N orton allegedly v

iolated by “ shutting off utili ties , arming himself with a

pistol, and by shooting a pistol at the p laintiff.” These actions were alleged to ha ve been the result of

negligence on the

pa rt of Llo yd Norton, who was acting on behalf of his mother. No answer was f

iled to the amen

ded complaint. The plaintiff

filed motions fo

r summary

judgment “on the q uestio n of Llo yd Norton’s liability for ne

gligence and statutor

y violations,” a

nd “on the question of3

Mary Norton’s vicari

ous liability for

Lloyd Norton’ s negligence and sta tutory violations.” These

motions were d

enied. In support of her motion for summary j udgment, Ma ry Nort on filed her affidavit, testifying that s he was 81 years old, that she owned the property where Lloyd Norton

was residing, tha

t she had no knowledge

of the s hooti ng, tha t Lloyd was neither her

employee n

or manager of

the property,

andthat she allowed him to live “free of charge on th at property and to colle ct and keep the rents .” The disc overy d epositions of Lloy d Norton and Mary

Norton were fil

ed, togetherwith the transcrib e d testimony of Lloyd Norton given in the criminal court. The affidav its and depositions reve al that the plaintiff

was invited to the proper ty by Jean ne Park er, Lloyd Norton’s girlfriend. There were others present whom Lloyd Norton described

as “nasty, long-haired, mean and stoned.” He asked them to leave the

apartment ; they de clined , and he discon nected the ele ctrici ty. One of them restor

ed the power, and L

loyd Norton agai

n disc onnected the electri city, and l ocked the switch. The p laintiff thereupon r

emoved or broke

the lockand restored t

he power. Lloyd Norton the n armed him

self, accosted th

e plaintiff, and shot him. He testified variously that “I shot him, ” and “I was scared of him and shot into th e ground.” The plaintiff

alleges that Norto

n negligently shot him, not having intended to do so, and that su

m mary judgment is ordinarily not appropriate in negligence cases, citing Bowman v., Henard, 547 S.W.2d 527 (Tenn. 1977). But summary judgment is appropriate if

the facts reveal that as a matte r of law (1) the relationship

of master-se

rvant did not exist,

or (2) if it did, tha

t the acts of

the agent
were not within the scope of hi s authority or duties. See, Winford v. Hawissee Apt. Complex, 812 S.W.2d 293 (T enn. App. 1991). To hold Lloyd Nort on liable, the4

p laintiff must show that he was an employee of hi s mother, that he wa s on th e business of his mother when he shot the plaintiff, and that he was act ing within the scope of his employment. Tenn. Farmers M utual Ins. Co. v. American Mutual Ins. Co., 840 S.W.2d 933 (T

enn. App. 1992). W e agree with the a ppellee that the depositions of

the parties do not reveal a scint illa of evidence tha

t the relationship between Lloyd Norton and Mary Norton w

as anything other

than mother and son. Lloyd Norton controlled th e property, re

nted it as he chose, paid the

expenses, and kept the remainder. The judgment

is affirmed a

t the costs of the appe

llant.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Don T. McMurra

y, Judge