dissenting.
{38} Plaintiffs appeal entry of summary judgment in an action for wrongful death. Plaintiffs filed suit against both Richard, who fired the gun killing their son, and the owner of the home where the incident occurred. The trial court entered summary judgment upon Homeowner’s motion, finding as a matter of law that an agency relationship between Homeowner and Melvin did not exist. I agree. Also, I would affirm on the grounds that the incident was not foreseeable and therefore, we cannot impose liability on Homeowner as a matter of law. Homeowner had no reason to anticipate that adults would be playing quick draw. Furthermore, he was not aware that the decedent was in his home. Richard shot Jason with his own gun. Additionally, the actions leading to the accident were horseplay which also precludes liability. See Rivera v. New Mexico Highway & Transp., Dept., 115 N.M. 562, 563-64, 855 P.2d 136, 137-38 (1993).
DISCUSSION
{39} Plaintiffs argue that summary judgment was improper. Summary judgment is proper when there are no genuine issues of material fact in question and the moving party is entitled to judgment as a matter of law. Monett v. Dona Ana Sheriff’s Posse, 114 N.M. 452, 454, 840 P.2d 599, 601 (Ct.App.1992). Summary judgment is only proper when the facts before the court are not in dispute or are sufficiently developed to require no further factual resolution for determination of the central legal issues. National Excess Ins. Co. v. Bingham, 106 N.M. 325, 328, 742 P.2d 537, 540 (Ct.App.1987). Once the movant has made a prima facie showing that he is entitled to summary judgment, “the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 (1992).
{40} The trial court found that the agency relationship necessary to impose liability upon Homeowner did not exist. The trial court granted summary judgment because the actions leading to the accident could not be construed to fall within the scope of employment. Therefore, the trial court could not impute liability to Homeowner.
{41} When no reasonable trier of fact could conclude that an employee is acting in the course and scope of employment, summary judgment is proper. Rivera, 115 N.M. at 564, 855 P.2d at 138. Here, there are no material facts in dispute, and in fact Plaintiffs have conceded this point.
A. Foreseeability
{42} In New Mexico foreseeability of an injury or harm is an element of negligence. Martin v. Board. of Ed. of the City of Albuquerque, 79 N.M. 636, 638, 447 P.2d 516, 518 (1968); Kelly v. Montoya, 81 N.M. 591, 593, 470 P.2d 563, 565 (Ct.App.1970). Negligence includes “ ‘the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.’” Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990) (quoting Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983)); see also UJI 13-1601 NMRA 1998. This Court may decide the question of negligence and proximate cause if there are no facts presented to allow a reasonable jury to find proximate cause. Calkins, 110 N.M. at 65 n. 6, 792 P.2d at 42 n. 6 (citing Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963)); see also, Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 101 (1928).
Black’s Law Dictionary defines foreseeability as:
[t]he ability to see or know in advance; e.g. the reasonable anticipation that harm or injury is a likely result from certain acts or omissions. In tort law, the “foreseeability” element of proximate cause is established by proof that actor, as person of ordinary intelligence and prudence, should reasonably have anticipated danger to others created by his negligent act. That which is objectively reasonable to expect, not merely what might conceivably occur.
Black’s Law Dictionary 449 (6th ed.1990). In Saiz v. Belen School Dist., 113 N.M. 387, 402, 827 P.2d 102, 117 (1992), the New Mexico Supreme Court defined foreseeability. Foreseeability is an “act or failure to act [that] will result in an unreasonable risk of injury.” Id. Foreseeability, however, is limited to “ ‘that which is objectively reasonable to expect, not merely what might conceivably occur.’ ” Van De Valde v. Volvo of America Corp., 106 N.M. 457, 459, 744 P.2d 930, 931 (Ct.App.1987) (quoting Mata v. Clark Equip. Co., 58 Ill.App.3d 418, 15 Ill.Dec. 980, 374 N.E.2d 763, 766 (1978)).
{43} Homeowner should not be held liable for an injury caused to a third person, Jason, by his house-sitter’s brother, Richard, and by his house-sitter’s brother’s gun and ammunition. Homeowner did not authorize or encourage Richard to bring his gun into the house; bringing the gun into the house was of no benefit to Homeowner. Homeowner had no knowledge of the propensity Richard and Jason had for playing quick draw.
{44} A reasonably prudent person could not have foreseen that Melvin’s failure to care for Homeowner’s guns would have caused Jason such an injury. A reasonable person would not anticipate that someone would bring guns into his home. Even more so, a reasonable person would not anticipate that Richard’s loaded gun would be used to play a fatal game of quick draw involving Homeowner’s unloaded weapon. The guns, the ammunition, and the game of quick draw were intervening causes that Homeowner could not foresee. To expect Homeowner to have anticipated this would be to require every homeowner to anticipate total disaster each and every time they left their home in the care of a house-sitter.
B. Agency Principles and Respondeat Superior
{45} Even if this accident had been foreseeable, no agency relationship was present in this case. Plaintiffs argue that a principal-agent relationship existed between Melvin, Richard, and Homeowner and that Melvin and Richard were subject to Homeowner’s control at the time of the accident. In the alternative, Plaintiffs argue that there are genuine material facts in dispute that would preclude summary judgment. I first address the agency relationship in general. An agency relationship is a mutual agreement between two parties by which one party, the agent, undertakes to act on behalf of another person or entity, the principal, subject to the principal’s control. Daniel S. Kleinberger, Agency and Partnership §§ 1.1, 3.2 (1995). A subset of an agency relationship is respondeat superior to the employer-employee relationship. Restatement (Second) of Agency § 2 cmt. a (1993). An employer-employee relationship exists where an individual, the employer, employs the services of another, the employee, to perform services for him or her. The employee may or may not be paid a salary or wages. See Lai v. St. Peter, 10 Haw.App. 298, 869 P.2d 1352, 1357 (1994) (defining employee as “one who works for a salary or wages under directions.”) (citation omitted); but see California First Bank v. State, 111 N.M. 64, 70, 801 P.2d 646, 652 (1990) (stating that an employer-employee relationship may be gratuitous). The employer retains control or the right to control the physical conduct of the other in performance of the service. See Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 729, 779 P.2d 99, 106 (1989); Restatement (Second) of Agency § 220; Black’s Law Dictionary 363 (6th ed.1990) (defining employee). Both the principles of agency and respondeat superior may impose liability on a principal or employer for the acts of an agent or employee.
{46} The general rule is that an employer is liable for the torts of an employee committed while the employee is acting within the scope of employment. W. Edward Sell, Sell on Agency, 84 (1975) [hereinafter Sell], To have an employer-employee relationship, the employer must have the right of control and the actions of the employee must have been within the scope of employment. McCauley v. Ray, 80 N.M. 171, 180-81, 453 P.2d 192, 201-02 (1968); Romero v. Shelton, 70 N.M. 425, 428-29, 374 P.2d 301, 303-04 (1962) (overruled on other grounds by Archuleta v. Pina, 86 N.M. 94, 519 P.2d 1175 (1974); Sell, supra at 86, 88.
1. Right of Control
{47} To determine whether the employer has the right to control the details of the employee’s work, we are to consider direct evidence of the employer’s power to control the manner and means of the employee’s performance, the method of payment of compensation, whether the employer furnishes equipment for the employee, and whether the employer has the power to terminate the employee at will. Houghland v. Grant, 119 N.M. 422, 425, 891 P.2d 563, 566 (Ct.App.1995). The right of control is not just dictating the results to be obtained but it is also directing “the manner in which the details of the work are to be accomplished.” Triple B. Corp. v. Brown & Root, Inc., 106 N.M. 99, 101, 739 P.2d 968, 971 (1987). Additionally, if rules are made to govern the general conduct of a person while on the property of another, conformity to those rules does not establish that the people involved are employees of the person making those rules. Lai, 869 P.2d at 1358 (citing Manchester Avenue Co. v. Stewart, 50 Cal.2d 307, 313-14, 325 P.2d 457, 461 (1958) (citing Restatement (Second) of Agency § 220 cmt. h (1933)).
{48} In Lai, the court determined whether a homeowner’s directions to a house-sitter exerted enough control over the house-sitter to establish an employment relationship. The house-sitter’s list of duties included directions regarding the
daily operation of [homeowners] home, such as yard service, bug extermination service, sprinkler system, home appliances, swimming pool care, trash pickup, location of keys, and watering the plants.... Furthermore, the list requested that [house-sitter] not wear shoes in the house, sit on the furniture with wet or damp clothes or sweaty bodies, or leave valuables in the car when visiting the beach or other tourist shops.
Lai, 869 P.2d at 1358. The court determined that this list of duties was not sufficient for the homeowner to retain control over the house-sitter and therefore, an employer-employee relationship did not exist between the homeowner and house-sitter. Id.
2. Scope of Employment
{49} To be within the scope of employment means that employee’s actions must be done wdth the intent to “perform a service for the employer.” Benham v. All Seasons Child Care, Inc., 101 N.M. 636, 638, 686 P.2d 978, 980 (Ct.App.1984). An act of employment is within the scope of employment if:
1. It was something fairly and naturally incidental to the employer’s business assigned to the employee, and
2. It was done while the employee was engaged in the employer’s business with the view of furthering the employer’s interest and did not arise entirely from some external, independent and personal motive on the part of the employee.
UJI 13-407 NMRA 1998; see also Miera v. George, 55 N.M. 535, 540, 237 P.2d 102, 105 (1951); Gonzales v. Southwest Security and Protection Agency, Inc., 100 N.M. 54, 55, 665 P.2d 810, 811 (Ct.App.1983); Narney v. Daniels, 115 N.M. 41, 49, 846 P.2d 347, 355 (Ct.App.1992). Injuries that result from an employee engaging in horseplay are usually not considered within the scope of employment. Rivera, 115 N.M. at 563-64, 855 P.2d at 137-38. In Rivera, this Court held a spontaneous water fight between two road crew laborers was not within the scope of employment and affirmed the trial court’s grant of summary judgment. Id. at 566, 855 P.2d at 140. In Rivera, it was noted that:
“The general rule is that an employer is not liable to a customer, patron or other person for an assault arising out of acts of mischief or horseplay indulged in by the employee unless it is shown that the employer was or should have been so aware of the propensities of the employee in that direction as to make him negligent for having retained him in the employ since such acts are not to be considered incidental to the work which he is hired to perform but are of a personal nature, indulged in for the personal amusement of the employee and not in furtherance of the master’s interest.”
Id. at 564, 855 P.2d at 138 (quoting Lane v. Modern Music, Inc., 244 S.C. 299, 136 S.E.2d 713, 717 (1964)). The Court also noted that there are no common law tort cases where an employer was liable when the horseplay was not in some way connected to the employment. Id. at 565, 855 P.2d at 139. Finding that the actions of the employee in Rivera were horseplay and not within the scope of employment, the Court affirmed the trial court’s award of summary judgment for the employer.
{50} This case does not involve an employer-employee relationship. Homeowner did not have the right of control over the manner in which Melvin performed his duties nor was the game of quick draw within the scope of employment. To show control, there must be direct evidence of the power to control the employee’s performance, how the employee was compensated, whether the employee’s equipment is furnished and if the employer can terminate the employee at will. Houghland, 119 N.M. at 425, 891 P.2d at 566. There is no such direct evidence here. Homeowner left only very general instructions for Melvin. There were no guidelines or steps for Melvin to follow. Additionally, there is no evidence that Homeowner paid Melvin or that Homeowner furnished any kind of equipment for him. Homeowner did not direct the manner in which Melvin would accomplish the detail of his work. See Triple B Corp., 106 N.M. at 102, 739 P.2d at 972.
{51} We can analogize this situation to the Lai case. The homeowner’s instructions for house sitting in Lai were much more detailed than those given by Homeowner. The homeowner, in Lai, requested that the house sitter refrain from doing many things, such as not wearing shoes in the house or leaving valuables in the ear. Homeowner, likewise asked Melvin to refrain from doing certain things but the instructions were not as exhaustive as those in Lai. Even with the detailed instructions in Lai the court did not find that the homeowner retained control sufficient to establish an employer-employee relationship. Likewise, here, Homeowner did not retain sufficient control over Melvin to establish an employer-employee relationship.
{52} Plaintiffs rely on the proposition that a homeowner who turns over the safekeeping of his home to another creates an employer-employee relationship and that the homeowner ,is liable for the acts of that person. State Farm Fire & Cas. Co. v. Miller Metal Co., 83 N.M. 516, 494 P.2d 178 (Ct.App.1971). In State Farm, the homeowners asked their daughter and son-in-law to watch their house while they were out-of-town. The homeowners called and asked their daughter and son-in-law to prepare their house for the winter, including turning off the air-conditioning and turning on the furnace. The homeowner gave very specific instructions regarding opening the dampers on the furnace, as homeowner knew that if they were not open it would be dangerous. State Farm, 83 N.M. at 518, 494 P.2d at 180. The homeowner’s home was subsequently damaged by a fire because the dampers were not open. The Court determined that in this instance the daughter and son-in-law were agents of the homeowner. Id. at 519, 494 P.2d at 181. The Court based this determination on the very specific and detailed instructions the homeowner gave to his daughter. Id.
{53} Here, Homeowner did not give detailed or specific instructions to the Franklins regarding his home. Homeowner merely told them not to have any wild parties and not to mess with his guns. There were no step-by step instructions left for Melvin and Richard regarding any aspect of caring for Homeowner’s home. The instructions given by Homeowner did not create an employer-employee relationship.
{54} Plaintiffs also assert that this is a failure to act case. However, as discussed above, this is not a ease involving an employer-employee relationship. The failure to act discussed in § 232 of the Restatement (Second) Agency applies to an employer-employee relationship. Plaintiffs assert that illustration 5 of the Restatement (Second) Agency § 232 is dispositive of this case. That illustration provides:
5. P employs A to drive his team. A leaves the team, properly hitched, by the roadside while he enters a tavern for the forbidden purpose of obtaining a drink. While in the tavern, he sees that the horses have become unhitched and are about to run away. He refrains from acting in order to finish his drink. A’s conduct is negligent and within the scope of employment.
First, the Plaintiffs’ argument presupposes that Melvin knew that this game of quick draw was occurring, that Richard’s gun was loaded, and that, despite this knowledge, he continued to watch the Super Bowl. There is no evidence to support this supposition. Melvin stated that he had never seen the boys playing quick draw. In fact, Melvin never saw the game of quick draw nor the shooting occur. The Majority is inferring from where they believe Melvin was in the room, which is unclear, that he knew they were playing quick draw. The Majority misperceives the facts and from this draws an impermissible inference. Spectron Dev. v. American Hollow, 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d 852 (stating that ‘“[we] review the case litigated below, not the case that is fleshed out for the first time on appeal.’” (quoting In re T.B., 121 N.M. 465, 469, 913 P.2d 272, 276 (Ct.App.1996)); Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct.App.1994) (stating “[a]n inference based on speculation or conjecture does not generate a material factual dispute^]”).
{55} Second, in the Restatement illustration the instrumentalities that would cause any harm, the horses, are the exact thing for which the agent was responsible. There is a nexus between the negligence, allowing the horses to become unhitched, and the agent’s employment, driving the horses. Here, such a nexus does not exist. Homeowner instructed Melvin not to let anyone touch his guns because they are his prized possessions, not out of fear of someone being shot in his home. Additionally, Homeowner did not absolutely forbid anyone from touching his guns. He gave Melvin permission to use them. The Majority argues that Homeowner was concerned about some kind of negligence occurring in his home and that this is evidenced by Homeowner calling to inquire about his guns. However, Melvin stated that he may have inquired about his guns and continually qualified his statements in this manner. Further, the instrumentality of the accident here was Richard’s gun, not one of Homeowner’s guns. Therefore, there is not a nexus between safeguarding Homeowner’s guns and Jason being shot with Richard’s gun.
{56} Even if I was to determine that there was an employer-employee relationship, the activities engaged in at the time of the accident were clearly outside the scope of employment. The specific activity of quick draw can only be characterized as horseplay. Horseplay is not within the scope of employment and is not in furtherance of the interest of an employer. Rivera, 115 N.M. at 563, 855 P.2d at 137.
S. Agency
{57} Generally, a principal will not be liable for the unauthorized negligent or willful conduct of a non-employee agent even if such conduct causes harm to third parties. A non-employee agent is one who is not subject to the right of control of the principal as to the manner of performing the object of the agency. The principal will only be liable if he authorized the conduct of the agent. Restatement (Second) Agency § 250 (1993); Sell, supra at 95 (citing Southern Nat’l Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955)).
{58} The New Mexico Supreme Court has recognized a distinction between an employer-employee relationship and a principal-agent relationship. Romero, 70 N.M. at 428-29, 374 P.2d at 303-04; Jaramillo v. Thomas, 75 N.M. 612, 614-15, 409 P.2d 131, 132-33 (1965). All principals are not employers, nor are all agents employees. Romero, 70 N.M. at 428-29, 374 P.2d at 303. A non-employee agent’s physical actions are not subject to the direct control of the principal. Id. at 429, 374 P.2d at 304. Only when the principal controls the details and manner of performance of the agent does the principal become liable for the physical conduct of the agent. Jaramillo, 75 N.M. at 614, 409 P.2d at 132-33.
{59} As discussed above, Homeowner did not retain control over Melvin. As such, Melvin’s relationship to Homeowner can only be characterized as that of a non-employee agent. Therefore, I would not hold Homeowner liable for the unauthorized conduct of Melvin, a non-employee agent.
C. Policy
{60} Determining that an agency relationship exists and that liability can be imposed upon a homeowner under the circumstances of this case expands agency liability to include a ridiculous number of situations. For example, liability could be imposed on a homeowner who gave instructions to a house-sitter not to allow any one to play with the homeowner’s dog and subsequently someone visits house-sitter and is bitten by the neighbor’s dog. Or, liability could be imposed on a homeowner who gave instructions not to touch his fifty-year-old bottle of scotch and subsequently someone brings their own alcohol over, drinks it, gets alcohol poisoning and dies. There is simply no connection between the instructions in these scenarios and the instrumentality causing the harm. The same is true in this ease. There is no connection between Homeowner instructing Melvin not to let anyone touch his guns and Jason being shot by Richard’s gun.
{61} Additionally, imposing liability in a case as tenuous as this creates a standard of strict liability. Any time a homeowner leaves their home in the care of another, they are automatically liable for any accident on their property, foreseeable or not. This standard of strict liability sends a clear message to the insurance companies that they must revise homeowners’ policies to encompass this new development. We should not send this message.
{62} This is not to say that individuals with meritorious claims do not deserve their day in court. Indeed, we have a solemn duty to uphold this premise. However, we also have an equally solemn duty to protect the rest of the public from unjustifiably being involved in litigation which is based on an erroneous interpretation of the law.
CONCLUSION
{63} The actions of Richard and Jason were not foreseeable, there are no facts to show that Melvin was an employee of Homeowner, and there are no material facts in dispute. Homeowner is, therefore, entitled to judgment as a matter of law. Accordingly, I would affirm the trial court’s grant of summary judgment. The majority having decided otherwise, I must respectfully dissent.