                      IN THE COURT OF APPEALS
                            AT KNOXVILLE
                                                          FILED
                                                            March 3, 1998

                                                       Cecil Crowson, Jr.
LAWRENCE DIXSON and wife,     )           KNOX CIRCUIT Appellate C ourt Clerk
     MARY DIXSON,             )           C.A. NO. 03A01-9709-CV-00417
                              )
        Plaintiffs-Appellants )
                              )
                              )
                              )
                              )
                              )
vs.                           )           HON. WHEELER A. ROSENBALM
                              )           JUDGE
                              )
                              )
                              )
                              )
                              )
ATLANTIC SOFT DRINK COMPANY, )            AFFIRMED AND REMANDED
also d/b/a Pepsi Cola Company,)
                              )
          Defendant-Appellee )




SHERMAN AMES, III, Gillenwater, Nichol & Ames, Knoxville, for
Appellants.


EDWARD U.   BABB,   Butler,   Vines   &    Babb,    PLLC,   Knoxville,      for
Appellee.
                             O P I N I O N



                                                              McMurray, J.



     At approximately 1:00 on Christmas morning of 1995, a pickup

truck which had been stolen from the defendant Atlantic Soft Drink

Company's business compound, crashed into the plaintiffs' resi-

dence, allegedly causing property damage and personal injury to the

plaintiffs.      Plaintiffs, in their complaint asserted that the

defendant was negligent in leaving the keys inside the unlocked

truck and providing inadequate security for the parking lot where

company vehicles were left.        The plaintiffs also sought to impose

liability   on   the   defendant    under   the   doctrine   of    respondeat

superior.     The defendant moved for summary judgment.               Summary

judgment was granted and the complaint dismissed.                 This appeal

resulted.   We affirm the judgment of the trial court.



     The parking lot of the defendant's compound is surrounded by

an eight-foot chain link fence topped by three strands of barbed

wire slanted away from the premises.         In the early hours of that

Christmas morning, a van and the pickup truck in question here,

were stolen from the lot.     The van was found a short distance from

the parking lot, lodged on a tree stump.



     The administrative manager for the defendant testified by

affidavit and without dispute that the van "had multiple scratches


                                     2
on [its] hood and top which were consistent with the van being

driven through the chain link fence."   A portion of the fence was

pulled away from the fence posts, leaving an opening large enough

to drive the van and truck through.   Each entrance to the parking

lot was secured by a chain and padlock and no evidence of tampering

with them was presented.



     The administrative manager also testified that "[b]ecause the

vehicles were secured in a fenced compound to which the general

public had no access, drivers of these vehicles were permitted to

leave the keys in an inconspicuous place inside the vehicle.

Standard procedure did not permit the keys to be left in the

ignition."



     The driver of the stolen truck fled on foot after crashing it

into the plaintiffs' house.      An eyewitness who saw the driver

running away testified that he was wearing a jacket with a Pepsi

logo on it.   The keys, which were left in the ignition, also had a

Pepsi logo on them or on the keychain.     The driver has not been

identified nor apprehended.



     In their complaint the plaintiffs allege that "the driver of

the truck was an employee, agent and/or uniformed servant of the

defendant and, therefore, the defendant is responsible for the

consequences of his actions."    This respondeat superior theory is

not directly argued on appeal.   Nevertheless, we have reviewed it


                                 3
and we find it to be without merit.           Even if it is assumed that the

driver was an employee of the defendant, reasonable minds could not

conclude that he was acting within the course and scope of his

employment when he took the company vehicles, an element required

for recovery under respondeat superior.1                 See, e.g., Tennessee

Farmers Mut. Ins. Co. v. American Mut. Liability Ins. Co., 840

S.W.2d 933, 937 (Tenn. App. 1992).



      We will now address the question of the defendant's alleged

negligence.      To establish negligence the plaintiffs must demon-

strate the following elements:


      (1) a duty of care owed by defendant to plaintiff; (2)
      conduct below the applicable standard of care that
      amounts to a breach of that duty; (3) an injury or loss;
      (4) cause in fact; and (5) proximate, or legal, cause.
      Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993);
      Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993);
      McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991).


McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).



      Our Supreme Court has defined the "duty" concept as "the legal

obligation owed by defendant to plaintiff to conform to a reason-

able person standard of care for the protection against unreason-

able risks of harm." Id. at 153. (Citations omitted).




      1
        We do not mean to imply in any manner that the evidence of a Pepsi logo on
the clothing the driver was wearing is sufficient to establish an inference that the
driver was an employee.    To make such an inference would require a quantum leap
which we believe to be beyond the pale of fundamental reason.

                                         4
     For purposes of summary judgment we must construe all facts

and reasonable     inferences   to   be    drawn     therefrom   in   favor   of

plaintiffs.    Thus, we must assume that the keys to the truck were

left in the ignition.    Assuming this to be true, for the purposes

of summary judgment, however, we are of the opinion that the

defendant's conduct could not reasonably be construed as falling

below a "reasonable person" standard under the circumstances.

Likewise, assuming that it is foreseeable that a vehicle would be

stolen from an unattended and unsecured parking lot when the keys

to the vehicle are left in the ignition, we feel that the defen-

dant's precautions for prevention of that foreseeable event were

sufficient to negate liability.           An eight-foot chain link fence

topped by barbed wire with the gates chained and locked, is, we

believe, sufficient security. Only by the use of extraordinary and

extreme force, such as that used in this case, would a person be

able to escape with a vehicle from defendant's locked and secured

compound.     We find that, under these circumstances, the defendant

did not breach a duty of reasonable care to the plaintiffs.



     In the case of McClenahan v. Cooley, 806 S.W.2d 767 (Tenn.

1991), the Supreme Court engaged in a scholarly review of Tennessee

"key-in-ignition"    cases.     Many      of   the   cases   which    the   court

reviewed dealt exclusively with the question of a defendant's

liability under T.C.A. § 55-8-162, Id. at 771-72, a statute not




                                     5
relied upon by either party in this case.2                Applying traditional

common law principles, the court concluded:


      that reasonable minds can differ as to whether a person
      of ordinary prudence and intelligence through the
      exercise of reasonable diligence could foresee, or should
      have foreseen, the theft of an unattended automobile with
      the keys in the ignition left in an area where the public
      has access, and could likewise foresee the increased risk
      to the public should a theft occur.

                               *       *        *     *

           In sum, a jury might conclude in this case that a
      reasonable person would not have left the keys in the
      ignition of his unattended car parked in a lot where the
      public had ready access. [Emphasis added]


Id. at 776.




      In McClenahan, the defendant, a law enforcement officer, left

his keys in his unattended car, in a public parking lot of a

shopping center.          Id. at 769.          This fact clearly distinguishes

McClenahan from the present case, where the defendant left its

vehicle parked on its private, fenced and locked parking lot.

Clearly, the public had no access to defendant's vehicles absent

the use of exceptional force. In this regard, the McClenahan court

noted:



      Nothing, however, stated hereinabove is intended to imply
      that ... the evidence in some comparable situation might

      2
          T.C.A. § 55-8-162 provides as follows:

      Unattended Motor Vehicle — No person driving or in charge of a motor vehicle
shall permit it to stand unattended without first stopping the engine, locking the
ignition, and effectively setting the brake thereon and, when standing upon any
grade, turning the front wheels to the curb or side of the highway.

                                           6
     not possibly justify even a judgment for the vehicle
     owner as a matter of law. Determinations in this regard
     must necessarily depend on the entire circumstantial
     spectrum, such as the position of the vehicle and the
     nature of the locality in which the vehicle is left, the
     extent of access thereto, operational condition of the
     vehicle, its proximity to surveillance, the time of day
     or night the vehicle is left unattended, and the length
     of time (and distance) elapsing from the theft to the
     accident.



     Taking into consideration the factors mentioned in McClenahan,

the totality of the circumstances, and construing all facts and

reasonable inferences in favor of the plaintiffs, we agree with the

judgment of the trial court that the defendant was entitled to

judgment as a matter of law.



     The judgment of the trial court is affirmed in all respects

and the case is remanded to the trial court.    Costs on appeal are

assessed to the appellants.



                                      _____________________________
                                      Don T. McMurray, Judge

CONCUR:

___________________________________
Houston M. Goddard, Presiding Judge


______________________________
Charles D. Susano, Jr., Judge




                                 7
                     IN THE COURT OF APPEALS
                           AT KNOXVILLE




LAWRENCE DIXSON and wife,     )     KNOX CIRCUIT
     MARY DIXSON,             )     C.A. NO. 03A01-9709-CV-00417
                              )
        Plaintiffs-Appellants )
                              )
                              )
                              )
                              )
                              )
vs.                           )     HON. WHEELER A. ROSENBALM
                              )     JUDGE
                              )
                              )
                              )
                              )
                              )
ATLANTIC SOFT DRINK COMPANY, )      AFFIRMED AND REMANDED
also d/b/a Pepsi Cola Company,)
                              )
          Defendant-Appellee )


                              JUDGMENT


     This appeal came on to be heard upon the record from the

Circuit Court of Knox County, briefs and argument of counsel. Upon

consideration thereof, this Court is of the opinion that there was

no reversible error in the trial court.

     The judgment of the trial court is affirmed in all respects

and the case is remanded to the trial court.   Costs on appeal are

assessed to the appellants.



                                  PER CURIAM
