              IN THE COURT OF APPEALS OF TENNESSEE

                                AT KNOXVILLE                 FILED
                                                              October 2, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
JEREMY P. CRYE, a Minor, by    )               KNOX CIRCUIT
his next friend and Mother,    )
BEVERLY A. ROGERS, and         )               NO. 03A01-9804-CV-00142
BEVERLY A. ROGERS, Individually )
                               )
      Plaintiffs/Appellants    )
                               )
v.                             )               HON. HAROLD WIMBERLY
                               )               JUDGE
LLOYD C. NORTON and            )
MARY B. NORTON,                )
                               )
      Defendants/Appellees     )               AFFIRMED


Herbert S. Moncier and David S. Wigler, Knoxville, for Appellants.

Paul D. Hogan, Knoxville, for Apellee Mary P. Norton.



                                 OPINION

                                               INMAN, Senior Judge

      The plaintiff, Jeremy P. Crye, seeks to impose liability on Mary B. Morton

for the act of her son, Lloyd C. Norton, in shooting him. The trial judge granted

her motion for summary judgment without enlargement. The plaintiff appeals, and

presents for review the issue of whether the proof relevant to the motion

established a genuine dispute of a material fact, thus requiring a merit trial.

      The question on appeal is one of law, and the scope of review is de novo

with no presumption of correctness accompanying the judge’s conclusions of law.

Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993).
                                                      I

      The complaint alleges that on August 21, 1993, Mary B. Norton owned

certain property located in Straw Plains, Knox County, Tennessee, which was

managed by her son, the co-defendant Lloyd Norton, who was alleged to have been

her agent, servant and employee. The plaintiff was allegedly a guest of the tenants

of the property when he was shot by Lloyd Norton.

      Mary B. Norton filed her answer denying that Lloyd Norton was her agent,

servant or employee, and averring that she had no knowledge of the shooting

incident.

      The plaintiff amended his complaint to allege that Lloyd Norton was the

beneficial owner of the property because he transferred it to his mother in 1984

without consideration. Alternatively, the plaintiff alleged that Lloyd Norton

owned the property as a joint venturer or partner with his mother.1

      The complaint was again amended to allege that the defendants were

landlords within the meaning of T.C.A. § 66-28-105(5) and “were subject to the

duties of a landlord to provide essential services within the meaning of T.C.A. §

66-28-502(3),” which Lloyd Norton allegedly violated by “shutting off utilities,

arming himself with a pistol, and by shooting a pistol at the plaintiff.” These

actions were alleged to have been the result of negligence on the part of Lloyd

Norton, who was acting on behalf of his mother.

      No answer was filed to the amended complaint.

      The plaintiff filed motions for summary judgment “on the question of Lloyd

Norton’s liability for negligence and statutory violations,” and “on the question of




      1
          Which obviates a search for assets held by Lloyd Norton in the event his mother was exonerated.

                                                      2
Mary Norton’s vicarious liability for Lloyd Norton’s negligence and statutory

violations.” These motions were denied.

       In support of her motion for summary judgment, Mary Norton filed her

affidavit, testifying that she was 81 years old, that she owned the property where

Lloyd Norton was residing, that she had no knowledge of the shooting, that Lloyd

was neither her employee nor manager of the property, and that she allowed him

to live “free of charge on that property and to collect and keep the rents.”

       The discovery depositions of Lloyd Norton and Mary Norton were filed,

together with the transcribed testimony of Lloyd Norton given in the criminal

court. The affidavits and depositions reveal that the plaintiff was invited to the

property by Jeanne Parker, 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 declined, and he disconnected the electricity.

One of them restored the power, and Lloyd Norton again disconnected the

electricity, and locked the switch. The plaintiff thereupon removed or broke the

lock and restored the power. Lloyd Norton then armed himself, accosted the

plaintiff, and shot him. He testified variously that “I shot him,” and “I was scared

of him and shot into the ground.”

       The plaintiff alleges that Norton negligently shot him, not having intended

to do so, and that summary 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 matter of law (1) the

relationship of master-servant did not exist, or (2) if it did, that the acts of the agent

were not within the scope of his authority or duties. See, Winford v. Hawissee Apt.

Complex, 812 S.W.2d 293 (Tenn. App. 1991). To hold Lloyd Norton liable, the



                                            3
plaintiff must show that he was an employee of his mother, that he was on the

business of his mother when he shot the plaintiff, and that he was acting within the

scope of his employment. Tenn. Farmers Mutual Ins. Co. v. American Mutual Ins.

Co., 840 S.W.2d 933 (Tenn. App. 1992). We agree with the appellee that the

depositions of the parties do not reveal a scintilla of evidence that the relationship

between Lloyd Norton and Mary Norton was anything other than mother and son.

Lloyd Norton controlled the property, rented it as he chose, paid the expenses, and

kept the remainder.

      The judgment is affirmed at the costs of the appellant.



                                        _______________________________
                                        William H. Inman, Senior Judge

CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Don T. McMurray, Judge




                                          4
