                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 5, 2009 Session

        CASON D. MCINTURFF v. BATTLE GROUND ACADEMY OF
                   FRANKLIN, TENNESSEE, ET AL.

                     Appeal from the Circuit Court for Davidson County
                          No. 06C-3128    Randy Kennedy, Judge



                  No. M2009-00504-COA-R3-CV - Filed December 16, 2009


The plaintiff ballplayer was hit by a baseball while sitting outside the dugout during a school
baseball game. He sued the schools and the Tennessee Secondary School Athletic Association
(“TSSAA”) for failing to enforce the rules against his conduct. The trial court granted summary
judgment to the TSSAA because the umpires were not agents of the TSSAA. The plaintiff appealed
and we affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ANDY D. BENNETT , J., delivered the opinion of the court, in which RICHARD H. DINKINS, J., joined.
PATRICIA J. COTTRELL, P.J., M.S., filed a concurring opinion.

Joseph P. Bednarz, Sr., Joseph P. Bednarz, Jr., and Joseph Napiltonia, Nashville, Tennessee, for the
appellant, Cason D. McInturff.

Thomas I. Carlton, Jr. and Benjamin M. Rose, Nashville, Tennessee, for the appellee, Battle Ground
Academy of Franklin, Tennessee; and Richard Lee Colbert and Courtney Lynch Wilbert, Franklin,
Tennessee, for the appellee, Tennessee Secondary Schools Athletic Association.

                                             OPINION

                                      FACTUAL BACKGROUND

        This is one of the rare tort cases where the facts are essentially undisputed. Cason McInturff
played baseball for Battle Ground Academy (“BGA”). On April 18, 2005, the BGA baseball team
traveled to Father Ryan High School to play a regular-season game. During a portion of the game,
McInturff sat on a bucket outside the team’s dugout with one of the coaches because it was a good
vantage point from which to watch the game. Unfortunately, while he was sitting outside the dugout,
McInturff was struck in the head by a foul ball and severely injured.
         The Tennessee Secondary School Athletic Association (“TSSAA”) is a voluntary association
of member schools. According to Executive Director Ronnie Carter, the TSSAA was organized to
stimulate and regulate the athletic relations of Tennessee secondary schools. The TSSAA maintains
eligibility rules for athletes and establishes the rules for each sport. The TSSAA has adopted a by-
law which provides that the rule book published by the National Federation of State High School
Associations (“NFSHSA”) will be used as the game rules for baseball games between TSSAA
member schools.1 A statewide uniformity is thereby established for baseball games conducted
between TSSAA member schools.

        People who wish to umpire baseball games between TSSAA schools must register with the
TSSAA. They must attend a “rules meeting” every two years. In exchange for their registration, the
registrants receive a rule book, insurance benefits while officiating games between TSSAA schools,
and the opportunity to officiate baseball games between TSSAA schools. Registration provides only
an opportunity to officiate because TSSAA does not assign officials to regular season games. To
officiate games, an official must register with a local officials’ association. Schools contract with
the local officials’ associations, which assign officials to the games. The local associations also
assign officials to non-TSSAA games as well. The officials are paid by the schools, not the TSSAA,
for working regular season games. The TSSAA Board of Control sets the fee amount each umpire
is paid and can revoke an official’s registration “for just cause.” The umpires provide their own
uniforms, which must conform to NFSHSA standards, and transportation.

        The umpires enforce the rules the TSSAA has adopted. By necessity, the NFSHSA rules are
quite comprehensive. One such rule provides that a player shall not be outside the dugout if he is
not a batter, runner, on-deck batter, in the coach’s box, or playing defense. 2005 NATIONAL
FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS BASEBALL RULES, 3-3(j), 30. Umpires are not
allowed to pick and choose which rules they will enforce. An umpire who blatantly refuses to
enforce the rules could be denied registration by the TSSAA and thus lose the opportunity to be
chosen by the local officials’ association to officiate games between TSSAA member schools. The
official would still be eligible to officiate games involving non-member schools.

       On November 29, 2006, Cason McInturff sued the TSSAA and others for the injuries he
sustained. He alleged that the TSSAA was vicariously liable for the negligence of the umpires. On
December 12, 2008, the TSSAA filed a motion for summary judgment claiming that it owed no duty
to McInturff and that the officials were not agents or employees of the TSSAA. McInturff opposed
the motion. On February 13, 2009, the trial court granted the TSSAA’s motion. In accordance with
Tenn. R. Civ. P. 54.02, the trial court determined that there was no just reason for delay and
expressly directed the entry of a final judgment as to the TSSAA. Cason McInturff appealed.




         1
          The by-laws also provide for the game rules for football, basketball, girls’ softball, wrestling, girls’ soccer,
track and field, cross country, and girls’ volleyball.

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                                        STANDARD OF REVIEW

        Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. Summary
judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ’g Co. v.
Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). We consider the evidence in the light most favorable
to the non-moving party and resolve all inferences in that party's favor. Godfrey v. Ruiz, 90 S.W.3d
692, 695 (Tenn. 2002). When reviewing the evidence, we must determine whether factual disputes
exist. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If a factual dispute exists, we must
determine whether the fact is material to the claim or defense upon which the summary judgment
is predicated and whether the disputed fact creates a genuine issue for trial. Id.; Rutherford v. Polar
Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). To shift the burden of production
to the nonmoving party who bears the burden of proof at trial, the moving party must negate an
element of the opposing party’s claim or “show that the nonmoving party cannot prove an essential
element of the claim at trial.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).

                                               ANALYSIS

       Cason argues that the umpires were either the actual agents of the TSSAA or the apparent
agents of the TSSAA. Therefore, he maintains, the TSSAA is vicariously liable for the umpires’
negligence. Vicarious liability is defined as:

        the imposition of liability on one person for the actionable conduct of another, based
        solely on a relationship between the two persons. Indirect or imputed legal
        responsibility for acts of another; for example, the liability of an employer for the acts
        of an employee, or a principal for torts and contracts of an agent.

Browder v. Morris, 975 S.W.2d 308, 311 n.4 (Tenn.1998) (quoting BLACK’S LAW DICTIONARY 1566
(6th ed. 1990)).

        It has long been the view of Tennessee courts that, in its broadest sense, the term agency
“includes every relation in which one person acts for or represents another.” Boren ex rel. Boren v.
Weeks, 251 S.W.3d 426, 432 (Tenn. 2008) (quoting White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d
713, 723 (Tenn. 2000)); see also Howard v. Haven, 281 S.W.2d 480, 485 (Tenn. 1955). An agency
relationship is created by the acts of the principal rather than the acts of the agent. Harben v. Hutton,
739 S.W.2d 602, 606 (Tenn. Ct. App. 1987). The existence of an agency relationship is not
dependent upon a contract, an explicit agreement, or an understanding between the parties.” White,
33 S.W.3d at 723. When determining whether an agency relationship exists, the court examines the
conduct and relationship of the parties. Id.; V.L. Nicholson Co. v. Transcon Inv. and Fin. Ltd., Inc.
595 S.W.2d 474, 483 (Tenn. 1980). “Whether an agency relationship exists ‘is a question of fact
under the circumstances of the particular case . . . .’” White, 33 S.W.3d at 723 (quoting McCay v.
Mitchell, 463 S.W.2d 710, 715 (Tenn. Ct. App. 1970)). The right to control the conduct of the agent



                                                   -3-
is the essential test in determining whether an agency relationship exists. Jack Daniel Distillery v.
Jackson, 740 S.W.2d 413, 416 (Tenn. 1987).

        TSSAA maintains that the umpires are independent contractors. Usually, an employer or
general contractor is not liable for the actions of an independent contractor. Wilson v. Thompson
Constr. Co., 86 S.W.3d 536, 541 (Tenn. Ct. App. 2001). Several factors should be considered when
assessing whether a person is an agent or an independent contractor: “(1) the right to control the
conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to
select and hire helpers, (5) the furnishing of tools and equipment, (6) the self-scheduling of work
hours, and (7) the freedom to render services to other entities.” Tucker v. Sierra Builders, 180
S.W.3d 109, 120 (Tenn. Ct. App. 2005) (citing Beare Co. v. State, 814 S.W.2d 715, 718
(Tenn.1991)).

        The extent of the right of control is the most significant difference between an agent and an
independent contractor although it is not always determinative. Sodexho Mgmt. Inc. v. Johnson, 174
S.W.3d 174, 181 (Tenn. Ct. App. 2004). “Where the agent represents the will of the principal as to
the result of the work but not as to the means or manner of accomplishing the work, it is an
independent contractor.” Id. As the Tennessee Supreme Court observed long ago, “[a]n independent
contractor is one who, exercising an independent employment, contracts to do a piece of work
according to his own methods, and without being subject to control of his employer, except as to the
result of his work.” Powell v. Va. Constr. Co., 13 S.W. 691, 692 (Tenn. 1890).

        TSSAA provides registered umpires with some instruction via rules meetings, a rule book,
insurance benefits while officiating a game between TSSAA schools, and the opportunity to officiate
baseball games between TSSAA schools. In return, the umpires agree to officiate according to the
rule book when they are assigned to a TSSAA game by a local officials’ association. In other words,
the umpires agree to abide by, and ensure the participants abide by, the regulatory framework (rules)
established by the NFSHSA for baseball games played between TSSAA member schools.

        The TSSAA deals with umpires to achieve a result – uniform rules for all baseball games
played between TSSAA member schools. The TSSAA does not supervise regular season games.
It does not tell an official how to conduct the game beyond the framework established by the rules.
The TSSAA does not, in the vernacular of the case law, control the means and method by which the
umpires work.

        In addition, other factors point to the umpires being independent contractors. The officials
are paid by the schools for officiating regular season games. The fact that the TSSAA Board of
Control sets the per game fee amount each umpire is paid is merely part of the officiating framework
which keeps umpires independent – no TSSAA school pays an umpire more than any other TSSAA
school. The umpires provide their own uniforms. They are free to work for schools and
organizations not affiliated with the TSSAA.

        In view of the totality of the undisputed facts, we agree with the trial court that these officials
are not agents of the TSSAA.

                                                   -4-
         The officials are not apparent agents of the TSSAA either. The plaintiff contends that merely
showing up to officiate a game between TSSAA schools wearing a shirt and a ball bag with a
TSSAA logo gives the umpire the apparent authority of the TSSAA. However, apparent authority
must be established by the acts of the principal, not the acts of the purported agent or the perception
of a third party. Boren, 251 S.W.3d at 433. The plaintiff’s logic would mean that someone sitting
in the crowd watching the game wearing a New York Yankees cap would have the apparent authority
to act as a scout for the World Champions. An organization’s patch or logo by itself cannot confer
authority. That can only be done by the principal. There is no evidence that the TSSAA intended
to confer its authority to the officials by giving them a patch.

        Finally, McInturff maintains that “TSSAA owed a duty to take reasonable steps to protect
students from the inherent risks associated with high school athletics” by “assuming control over
every aspect of the conduct of the athletic events of its member schools.” The existence of a duty
is a question of law. Hurd v. Flores, 221 S.W.3d 14, 22 (Tenn. Ct. App. 2006). The Tennessee
Supreme Court has said that a “‘risk is unreasonable and gives rise to a duty to act with due care if
the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden
upon defendant to engage in alternative conduct that would have prevented the harm.’” Staples v.
CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000) (quoting McCall v.Wilder,913 S.W.2d 150, 153
(Tenn.1995)) (emphasis added). As has already been demonstrated, TSSAA did not assume control
over every aspect of the conduct of the athletic events of its member schools. The officials ran the
game. The TSSAA engaged in no activity regarding the baseball game except provide a framework
for the conduct of athletic contests conducted by member schools. This is the “general control over
all athletic contests” to which the TSSAA by-laws refer. The TSSAA owed no duty to Cason
McInturff in this regard.

                                            CONCLUSION

      The trial court is affirmed. Costs of appeal are assessed against the appellant, Cason
McInturff, for which execution may issue if necessary.


                                                       ___________________________________
                                                       ANDY D. BENNETT, JUDGE




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