S055981, Opinion — Vaughn v. First Transit, Inc.

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Argued and submitted January 13, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court
for further proceedings April 16, 2009
Cheryl VAUGHN,
Petitioner on Review,

v.
FIRST TRANSIT, INC.,
a Delaware corporation;
First Transit Transportation, LLC,
a Delaware corporation;
and Clara Zavoral,
Respondents on Review,
and
PORT OF PORTLAND,
Intervenor.
(CC 0603-03099; CA A133676; SC S055981)
206 P3d 181

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CJS, Carriers § 518.

En Banc
On review from the Court of Appeals .*

\* Appeal from Multnomah County Circuit Court, Bruce Hamlin, Judge pro
tempore. 218 Or App 375, 180 P3d 185 (2008).

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Helen C. Tompkins, Law Office of Helen Tompkins, P.C.,
Lake Oswego, argued the cause and filed the brief for peti-
tioner on review.

Thomas M. Christ, Cosgrave Vergeer Kester LLP,
Portland, argued the cause and filed the briefs for respon-
dents on review.

William F. Gary, Harrang Long Gary Rudnick, P.C.,
Portland, argued the cause and filed the brief for intervenor
Port of Portland. With him on the brief were Sharon A.
Rudnick and Susan D. Marmaduke.

Kathryn H. Clarke, Portland, filed a brief for amicus
curiae Oregon Trial Lawyers Association.

C. Randall Tosh, Salem, filed a brief for amici curiae
League of Oregon Cities, Association of Oregon Counties,
Special Districts Association of Oregon, Multnomah County,
Marion County, Deschutes County, Clackamas County,
Metro, City of Portland, City of Eugene, City of Salem, City of
Boardman, City County Insurance Services, Housing
Authority of Portland, Oregon School Boards Association,
and City of Hood River.

Karla H. Ferrall, Assistant Attorney General, filed a brief
for amicus curiae State of Oregon. With her on the brief were
Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.

BALMER, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

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# BALMER, J.

This tort case requires us to determine the meaning
of the word "agent" for purposes of the Oregon Tort Claims
Act (OTCA). The OTCA permits tort claims against public
bodies, with certain limitations, and provides that the sole
cause of action for any tort committed by officers, employees,
and agents of a public body who are acting within the scope of
their employment or duties is one against the public body.1
Plaintiff was injured while riding on an airport shuttle bus.
She filed this action against the shuttle bus driver and the
driver's employer, a transportation company that provides
shuttle bus service for the Port of Portland (the Port) under a
contract. Defendants claimed that, as "agents" of the Port, a
public body, plaintiff did not have a cause of action against
them, but only against the Port. The trial court agreed that
plaintiff did not have a cause of action against defendants
and granted their motion for summary judgment.2 Plaintiff

1 ORS 30.265(1), one of several statutes that together comprise the OTCA, pro-
vides, in part:

"[E]very public body is subject to action or suit for its torts and those of its
officers, employees and agents acting within the scope of their employment or
duties * * *. The sole cause of action for any tort of officers, employees or agents
of a public body acting within the scope of their employment or duties and eli-
gible for representation and indemnification under ORS 30.285 or 30.287 shall
be an action against the public body only. The remedy provided by ORS 30.260
to 30.300 is exclusive of any other action or suit against any such officer,
employee or agent of a public body whose act or omission within the scope of
the officer's, employee's or agent's employment or duties gives rise to the action
or suit. No other form of civil action or suit shall be permitted. If an action or
suit is filed against an officer, employee or agent of a public body, on appropri-
ate motion the public body shall be substituted as the only defendant."

(Emphasis added.) Because the accident giving rise to the lawsuit in this case
occurred in 2004, the version of the OTCA then in effect applies. That statute has
since been amended in ways that do not affect our analysis. For ease of reference,
we refer to the present version of the OTCA.

2 The trial court stated that the OTCA "immunizes" agents of public bodies
from liability for torts committed within the scope of their agency, and the parties
generally discuss the issue in this case as whether defendants have "immunity."
However, the OTCA does not, by its terms, "immunize" those persons. The effect of
the OTCA is to protect an officer, employee, or agent from tort liability in certain
circumstances by providing that the sole cause of action of an injured person is one
against the public body and that the public body "shall be substituted as the only
defendant." ORS 30.265(1). The use of the term "immunity" to describe that protec-
tion should be avoided because the OTCA uses that term in a different context-
and subsection-that is not involved in this case. See ORS 30.265(2) (providing that
a public body is "immune" from liability for injuries caused by an officer, employee,
or agent, if the officer, employee, or agent "is immune from liability").

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appealed, and the Court of Appeals affirmed without opinion.
Vaughn v. First Transit, Inc., 218 Or App 375, 180 P3d 185
(2008). We allowed review and now reverse.

When reviewing a grant of summary judgment, we
view the facts and all reasonable inferences that we may
draw from those facts in the light most favorable to the non-
moving party-here, plaintiff. See Oregon Steel Mills, Inc. v.
Coopers & Lybrand, LLP, 336 Or 329, 332, 83 P3d 322 (2004)
(stating standard). Defendant First Transit, Inc., contracted
with the Port, a public body that owns and operates Portland
International Airport, to provide shuttle services between
the airport terminal and three airport parking lots. Under
that contract, the Port supplied office space, utilities, buses,
radios, and fuel to First Transit and assumed responsibility
for bus repair and licensing. First Transit provided the labor,
along with any equipment and materials not provided by the
Port. As a general matter, decisions regarding hiring and
training new employees were left to First Transit. When hir-
ing new employees, First Transit agreed to adhere to all state
and federal laws, "ensure that all drivers are properly quali-
fied and licensed," "research the driving record of each driver
[and] ensure that appropriate safe driving history standards
are met," implement a drug testing program including ran-
dom drug tests, and subject each applicant to a criminal his-
tory check. First Transit also agreed to "establish a written
employee training program," make a "good faith effort" to
modify that program if the Port requested a modification,
ensure appropriate training-including driver training, cus-
tomer service training, and airport security training-and
keep employee training records, making those records avail-
able to the Port upon the Port's request. First Transit also
agreed to provide the Port with all "reasonable reports
requested by the Port," including "a monthly report of hires
and terminations during the previous month." The contract
provided certain "appearance and behavior" standards for all
employees, and the Port retained the right to require First
Transit to "temporarily or permanently bar" any employee
from performing the duties enumerated in the contract.

In the event of an accident, First Transit agreed to
"immediately notify the Port Police," to "take photographs to
document the circumstances and effects of any accident," and

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to provide those photographs to the Port. Additionally, First
Transit agreed to maintain automobile liability insurance
"covering liability for bodily injury and property damage aris-
ing from the use, loading, and unloading of the Port's buses,"
along with commercial general liability insurance "covering
liability for personal injury, bodily injury, death, and damage
to property (including loss of use thereof) arising from, or in
any way related to," the shuttle system. The limits of those
plans were to be not less than $3,000,000 per incident.
Finally, First Transit agreed to indemnify the Port against
any claims arising out of the negligence of First Transit or its
employees.

In 2004, plaintiff was injured while riding on a shut-
tle bus driven by defendant Zavoral, an employee of First
Transit. Plaintiff sued defendants, alleging that Zavoral neg-
ligently had caused plaintiff's injuries when Zavoral "unnec-
essarily, suddenly and unexpectedly slammed on the vehi-
cle's brakes to avoid a small rodent in the roadway," which
caused plaintiff to be "thrown against a metal luggage rack,
striking her shoulders and face."3

Defendants moved for summary judgment, arguing
that they were "agents" of the Port at the time of the accident
and therefore, under the OTCA, any tort action must be
brought against the Port only. ORS 30.265(1) provides that
the "sole cause of action" of a person injured by the tort of an
officer, employee, or agent of a public body acting within the
scope of his or her employment or duties is "an action against
the public body only."4 Thus, under the OTCA, public officers,

3 In addition to Zavoral and First Transit, Inc., plaintiff sued First Transit
Transportation, LLC. Defendants argued before the trial court and the Court of
Appeals that First Transit Transportation, LLC, should not have been named as a
defendant because it is not Zavoral's employer and is not a party to the contract
between First Transit, Inc., and the Port. However, defendants never filed a motion
to dismiss First Transit Transportation, LLC, and neither lower court addressed
the issue. There is, therefore, no issue before this court with respect to the status of
that defendant.

4 The "sole cause of action" aspect of ORS 30.265(1) applies only when the offi-
cer, employee, or agent is "eligible for representation and indemnification under
ORS 30.285 or 30.287." Those statutes provide that the indemnification require-
ment does not apply "in case of malfeasance in office or willful or wanton neglect of
duty" and also set out the procedures that officers, employees, and agents must fol-
low to request that the public body defend a claim against them. The Port argues
that defendants were not "eligible for representation and indemnification" and

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employees, and agents are not subject to actions for torts
committed while acting within the scope of their employment
or duties, and the injured person must bring any claim based
on their actions against the public body only. Defendants
argued that, based on the contract described above, they
were "agents" of a public body under the meaning of the
OTCA and that Zavoral had been acting within the scope of
her employment-which was within the scope of First
Transit's duties as an agent for the Port-when the accident
occurred. Defendants contended that, as a result, "the sole
cause of action" for Zavoral's negligence was one against the
public body, the Port. As noted, the trial court agreed and
granted defendants' motion for summary judgment. Plaintiff
appealed, and the Court of Appeals affirmed without opinion.

This case involves two alleged "agency" relation-
ships: Zavoral as the agent of First Transit, and First Transit
as the agent of the Port. It is undisputed that Zavoral was an
agent of First Transit; more specifically, she was an employee
of First Transit acting within the scope of her employment at
the time of the accident. As Zavoral's employer, First Transit
ordinarily would be liable for claims arising out of Zavoral's
allegedly negligent driving. See Minnis v. Oregon Mutual Ins.
Co., 334 Or 191, 201, 48 P3d 137 (2002) (employer liable in
tort for acts of employees when acting within the scope of
employment). The issue in this case, however, is whether
First Transit and Zavoral are "agents"-as that term is used
in the OTCA-of the Port so as to be protected from tort
claims by ORS 30.265.5

We begin with an overview of the statutory scheme.
In 1967, the legislature enacted the OTCA and abrogated, in

therefore did not fall within the terms of ORS 30.265 because they did not fulfill the
procedural requirements in ORS 30.285 and ORS 30.287. Because we conclude
that defendants were not "agents" for purposes of ORS 30.265(1), we do not reach
the Port's argument.

" If First Transit is an agent of the Port, then Zavoral-an employee who First
Transit hired to aid in performing its duties for the Port-is also an agent of the
Port. See Restatement (Third) of Agency § 3.15(1) (2006) ("A subagent is a person
appointed by an agent to perform functions that the agent has consented to per-
form on behalf of the agent's principal and for whose conduct the appointing agent
is responsible to the principal. The relationships between a subagent and the
appointing agent and between the subagent and the appointing agent's principal
are relationships of agency * * *. ").

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part, the state's sovereign immunity. As originally enacted,
the OTCA permitted claims against public bodies-with
some limitations-for their own torts and for the torts com-
mitted by their "officers, employe[e]s and agents acting
within the scope of their employment or duties, whether aris-
ing out of a governmental or proprietary function." Or Laws
1967, ch 627, § 2. The original statute provided that the pub-
lic body was permitted, but not required, to "defend, save
harmless and indemnify any of its officers, employe[e]s and
agents *** against any tort claim or demand *** arising
out of an alleged act or omission occurring in the performance
of duty." Id. § 7. In 1975, the legislature amended the OTCA
to provide for mandatory indemnification by the public body.
Or Laws 1975, ch 609, § 16. Finally, in 1991, the legislature
eliminated any tort claim against those officers, employees,
and agents who are eligible for indemnification, making the
sole cause of action one against the public body. Or Laws
1991, ch 861, § 1. See generally Clarke v. OHSU, 343 Or 581,
588-90, 175 P3d 418 (2007) (discussing history of OTCA,
including effect of 1975 and 1991 amendments).

As noted, because First Transit does not claim to be
an "officer" or "employee" of the Port, the question is whether
it is an "agent" as that term is used in the OTCA. The OTCA
does not contain a definition of agent, so we begin by looking
to the well-established legal meaning of that term. See
McIntire v. Forbes, 322 Or 426, 431, 909 P2d 846 (1996)
("Analysis of text also includes reference to well-established
legal meanings for terms that the legislature has used.").

At common law, "agency" was defined as a relation-
ship that "results from the manifestation of consent by one
person to another that the other shall act on behalf and sub-
ject to his control, and consent by the other so to act."
Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 617, 892
P2d 683 (1995) (emphasis added; internal quotation marks
omitted). The "agent" is the person in that relationship who
acts on behalf of the other, the "principal." Restatement
(Second) of Agency § 1 (1958).

We first consider how much control is required for an
agency relationship to exist.

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"Control is a concept that embraces a wide spectrum of
meanings, but within any relationship of agency the prin-
cipal initially states what the agent shall and shall not do,
in specific or general terms. Additionally, a principal has
the right to give interim instructions or directions to the
agent once their relationship is established."

Restatement (Third) of Agency § 1.01 comment f (2006). Thus,
the principal's "control" over what the agent shall or shall not
do is necessary for an agency relationship, but it is not, on its
own, sufficient to create such a relationship. Agency does not
result, for example, when an individual (or entity) simply
agrees to provide services for another, even if the other per-
son-through contract-is able to establish general stan-
dards for performance and in that way "control" the individ-
ual. That individual simply may be a contractor performing
services for another, and not an "agent" at all. Instead, "[t]he
power to give interim instructions distinguishes principals in
agency relationships from those who contract to receive serv-
ices provided by persons who are not agents." Id. (emphasis
added).

Even the ability to control in detail another's actions
does not alone create an agency relationship; to qualify as an
agent, one must also agree to act "on [another's] behalf."
Thus, for example, a subordinate employee is not the agent of
a supervisor simply because the supervisor has full control
over the employee's work activities. Instead, both the subor-
dinate and the supervisor are agents of their common
employer, on whose behalf they have agreed to work. See
Restatement (Third) § 1.01 comment g (giving examples). In
sum, to be an "agent"-using the well-defined legal meaning
of that term-two requirements must be met: (1) the individ-
ual must be subject to another's control; and (2) the individ-
ual must "act on behalf of" the other person.

Our analysis does not end there, however. When
interpreting statutes, we also consider the context of the stat-
utory provision, including the preexisting common law and
the statutory framework within which the statute was
enacted. Denton and Denton, 326 Or 236, 241, 951 P2d 693
(1998). As noted, the legislature originally enacted the OTCA
to partially waive sovereign immunity, by permitting claims
against public bodies for their own torts and, vicariously, for

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the torts of their officers, employees, and agents. That is, the
legislature allowed injured persons to assert-albeit with
some limitations-the same tort claims against public bodies
that they could, at common law, assert against other tort-
feasors. Considering that context, we turn to a discussion of
common-law principles of agency and vicarious liability.

Understanding agency law in the context of vicarious
liability requires an understanding of two types of agents:
employees (or "servant" agents) and agents who are not
employees (sometimes referred to as "nonservant" agents).6
"All servants are agents and all masters, principals. How-
ever, all principals and agents are not also masters and ser-
vants." Kowaleski v. Kowaleski, 235 Or 454, 457, 385 P2d 611
(1963). The common law distinguishes between the two types
of agents using a "right-to-control" test. An agent is an
employee if the principal has the right to control the physical
details of the work being performed by the agent; in other
words, the principal directs not only the end result, but also
controls how the employee performs the work. Schaff v. Ray's
Land & Sea Food Co., Inc., 334 Or 94, 100, 45 P3d 936 (2002).
In contrast, when the agent retains control over the details of
the manner in which it performs its duties, that agent is a
nonemployee agent. Restatement (Second) of Agency § 220
comment e.

Distinguishing between employees and agents who
are not employees is important for vicarious liability pur-
poses, because a principal's liability for the torts of its agents
varies based upon the type of agent. In general, a principal is
liable for all torts committed by its employees while acting
within the scope of their employment. Minnis, 334 Or at 201.
But a principal ordinarily is not liable in tort for physical
injuries caused by the actions of its agents who are not
employees. Jensen v. Medley, 336 Or 222, 230, 82 P3d 149
(2003). Rather, a principal is vicariously liable for an act of its
nonemployee agent only if the principal "intended" or
"authorized the result [ ]or the manner of performance" of
that act. Restatement (Second) § 250; see also Jensen,

6 The Restatement (Third) eliminates the terms "master" and "servant," as well
as variations such as "nonservant," see id. § 2.04 comment a, but the prior editions
and many cases continue to use those terms.

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336 Or at 231 (principal liable for acts of nonservant agents
only if those acts "within the actual or apparent authoriza-
tion of the principal").7 In other words, for a principal to be
vicariously liable for the negligence of its nonemployee
agents, there ordinarily must be a connection between the
principal's "right to control" the agent's actions and the spe-
cific conduct giving rise to the tort claim.

This court applied those principles in Jensen, where
the issue was whether an international union could be vicar-
iously liable for the wrongful termination of an employee of
an affiliated local union by the local union's manager. We
explained that

"whether one entity can be liable to a third party for the
wrongful conduct of another entity in a context other than
master-servant depends not only on whether the second
entity is an 'agent' of the first for some purpose, but also on
whether the principal authorized or intended the agent to
act on its behalf with respect to the conduct that gave rise to
the third party's claim."

336 Or at 237 (emphasis added). Applying that rule, we held
that an instruction permitting the jury to find the interna-
tional vicariously liable for the wrongful acts of the local sim-
ply because it had the "right to control" the local in the
abstract was erroneous. That instruction was erroneous
because it failed to ask whether the jury found that the
"[l]ocal had been authorized to act for and had been subject to
the control or right to control of [the international] with
respect to [the local's] hiring and firing of an employee." Id. at
238 (emphasis in original). We observed that, if a principal
were liable for all the torts of an agent performed in further-
ance of the principal's business, whenever the principal had a
"right to control" the agent in some respects (which was nec-
essary to create the agency in the first place), then the prin-
cipal could face liability for conduct of the agent that the prin-
cipal did not in fact control or have a right to control. "The law
of agency," we stated, "does not extend that far." Id.

7 Of course, a principal may be directly liable for the tortious act of an agent if
the principal had "a duty to have the act performed with due care," Restatement
(Second) §§ 214, 250, or if the principal itself was negligent in hiring, instructing,
or supervising the agent. Id. § 213.

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The comments to the Restatement provision regard-
ing liability for nonemployee agents expand on the require-
ment that, to be vicariously liable for the torts of such an
agent, a principal must have a right to control the physical
details of the manner of performance of the conduct that is the
basis for the tort claim:

"It is only when to the relation of principal and [nonservant]
agent there is added that right to control physical details as
to the manner of performance which is characteristic of the
relation of master and servant that the person in whose
service the act is done becomes subject to liability for the
physical conduct of the actor."

Restatement (Second) § 250 comment a (emphasis added).
Similarly, a principal that "authorizes" a nonemployee agent
to act on the principal's behalf is not, for that reason alone,
liable when the agent injures a third party because the agent
was negligent in carrying out its authorized activities. See id.
at comment b ("There is no inference that because a principal
has authorized an act to be done which would be non-tortious
if done carefully, he is liable for the act of a non-servant if the
latter was negligent in his performance."). Put differently,
only when the principal's control over the agent with respect
to the actions of the agent that gave rise to the tort claim is
similar to the control that an employer exercises over an
employee will the principal be vicariously liable for the neg-
ligence of its nonemployee agent.

With that understanding of when, at common law, a
principal may be vicariously liable for the negligence of an
agent who is not an employee, we return to the OTCA. The
OTCA provides that the sole cause of action for a tort com-
mitted by a public body's "employees" or its "agents," when
acting "within the scope of their employment or duties," is an
action against the public body. ORS 30.265(1). Because the
legislature used the word "agent" in addition to the word
"employee," it apparently intended that statute to apply to at
least some category of persons who are not subject to the kind
of detailed control of performance by the public body so as to
be employees, but who nevertheless act on behalf and under
the control of the public body. But did the legislature intend
to bring within the OTCA all torts of persons or entities that
are "agents" under the common law?

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The purpose of the OTCA provides important context
for considering that question. See Restatement (Second) § 1
comment f ("Whether the word 'agent' as used in a statute
corresponds to the [common-law] meaning * * * depends,
with other factors, upon the purpose of the statute."). As dis-
cussed above, the legislature enacted the OTCA to abrogate
sovereign immunity and make public bodies, with some lim-
its, liable for their torts to the same extent as private persons
and corporations. Given that purpose, it would not make
sense to interpret the OTCA to bring all torts of a public
body's common-law "agents" (when acting with the scope of
their agency) within the statute. Such a definition would
impose liability on the public body far beyond that imposed
on private entities. As the discussion above demonstrates,
principals ordinarily are vicariously liable for the torts of
their nonemployee agents only when the principal had the
right to control the physical details of the conduct of the agent
that gave rise to the tort claim. In our view, when the legis-
lature made public bodies vicariously liable for the torts of
their "agents" through the OTCA, it intended to impose that
same vicarious liability on public bodies for the torts of their
nonemployee agents, subject of course to the specific proce-
dural and other limitations of the OTCA. Thus, when the
OTCA makes a public body liable for tort claims based on the
conduct of an "agent" of the public body, it does not mean all
tort claims involving any agent of a public body, but only
those for which the agent's principal would be liable under
common-law standards of vicarious liability.

Returning to the facts of this case, we consider
whether First Transit and Zavoral were agents of the Port for
purposes of asserting that, because of the OTCA, plaintiff's
sole cause of action for her injuries based on Zavoral's alleg-
edly negligent driving is one against the Port. The only evi-
dence before us is the contract between First Transit and the
Port. As discussed above, that contract demonstrates that
First Transit agreed to act on behalf of the Port by providing
shuttle bus service at the airport, and it gives the Port sub-
stantial control over First Transit's operations, including the
ability "to give interim instructions." See Restatement (Third)
§ 1.01 comment f (explaining control in the context of agency).
For example, the contract gives the Port the authority

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to "unilaterally adjust" First Transit's annual operating
budget and to take control of the shuttle buses in the event of
an interruption in service. Therefore, First Transit was an
"agent" of the Port, in the common-law meaning of that term,
because it agreed to act on behalf of and subject to the Port's
control. It follows that, for the Port to be vicariously liable
under the OTCA for First Transit's (or Zavoral's) negli-
gence-and for plaintiffs to be limited to bringing an action
against the Port only-defendants must be able to show that
the Port had the right to control the physical details of the
manner of performance of the conduct giving rise to the
tort-Zavoral's driving.

Defendants argue that the contract "leaves First
Transit with very little discretion over how to [run the shut-
tle bus operation"" and point to several provisions in the con-
tract that give the Port control over various aspects of the
shuttle bus business. Plaintiff responds that the contract
does not demonstrate that the Port maintained the right to
control the physical details of the conduct giving rise to the
claim, namely, the driving of First Transit's employees. See
Jensen, 336 Or at 231, 236-38 (discussing principal's liability
for actions of nonservant agents and focusing on specific
allegedly wrongful conduct).

We agree with plaintiff. Although the Port retained
the right to reject unilaterally any of First Transit's employ-
ees, including its operations manager, that provision is not
equivalent to one expressly retaining the right to control the
day-to-day performance of those employees. The contractual
provision instead appears to be a way for the Port to protect
its interests if First Transit hires (or, more likely, fails to fire)
an employee whom the Port thinks is particularly incompe-
tent. We recognize that the contract does provide other limits
on First Transit's hiring; for example, First Transit was obli-
gated to ensure that all its drivers were properly licensed.
However, those general hiring standards do not serve to
grant control to the Port over the day-to-day performance of
First Transit's employees. The performance standards, as
they relate to the drivers, are general requirements that
First Transit "provide high quality customer service" and
assure "the neat appearance, courtesy, efficiency, and con-
duct" of its employees. For the Port to be vicariously liable for

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the negligent driving of First Transit's employees, the Port
would have to have the same right to control that driving as
it would have over the driving of its own employees.

The contract itself does not provide that the Port has
the right to control the physical manner in which First
Transit employees carried out their driving duties. Thus, the
contract does not support the conclusion that First Transit or
its employees, including Zavoral, were acting as agents of the
Port for purposes of imposing vicarious liability on the Port
for the alleged negligence of First Transit's shuttle bus driv-
ers. Accordingly, defendants have not demonstrated that
they are "agents" of the Port for purposes of ORS 30.265(1)
and that plaintiff's only permissible tort action is one against
the Port. The trial court therefore erred in granting defen-
dants' motion for summary judgment.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.