A Tennessee state appeals court has affirmed a lower court’s finding that the Tennessee Secondary School Athletic Association was not responsible for a baseball player’s injury, which may have occurred because of the negligence of the umpires. Specifically, it agreed with the trial court that the umpires were not agents of the TSSAA.
The court wrote that “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.”
On Nov. 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. 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. On Feb. 13, 2009, the trial court granted the TSSAA’s motion. McInturff appealed.
His appeal centered on the argument that the umpires “were either the actual agents of the TSSAA or the apparent agents of the TSSAA,” making the TSSAA “vicariously liable for the umpires’ negligence.”
TSSAA countered 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),” the court wrote. “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)).”
It added that “the extent of the right of control is the most significant difference between an agent and an independent contractor.
“ … TSSAA provides registered umpires with some instruction via rule 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 National Federation of State High School Associations 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.”
Agreeing with the trial court that the officials “are not agents of the TSSAA,” it turned to the plaintiff’s other argument.
“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 McInturff.”
Cason D. Mcinturff v. Battle Ground Academy of Franklin, Tennessee, et al.; Ct. App. Tenn.; No. M2009-00504-COA-R3-CV, 2009 Tenn. App. LEXIS 862; 12/16/09
Attorneys of Record: (for appellant) Joseph P. Bednarz, Sr., Joseph P. Bednarz, Jr., and Joseph Napiltonia, Nashville, Tennessee. (for appellee) Thomas I. Carlton, Jr. and Benjamin M. Rose, Nashville, Tennessee; and Richard Lee Colbert and Courtney Lynch Wilbert, Franklin, Tennessee.
