Devin Woods v. Carl Ware

In the

Missouri Court of Appeals

Western District



DEVIN WOODS, 

 WD78040

Appellant,  OPINION FILED:

v. 

 September 29, 2015

CARL WARE, 



Respondent. 





Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Justine Elisa Del Muro, Judge

Before Division One:

Cynthia L. Martin, P.J., Joseph M. Ellis, and James Edward Welsh, JJ.

Devin Woods appeals the circuit court's grant of summary judgment in favor of Carl Ware

on Woods's claim of negligence. Woods contends that the circuit court erred in finding that the

doctrine of official immunity shielded Ware from liability. We affirm.

When considering appeals from summary judgments, we review the record in the light

most favorable to the party against whom judgment was entered, and we afford that party the

benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply

Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that Woods was a former

student at Grandview Middle School and a former member of the Grandview Middle School

wrestling team. Ware was the head wrestling coach of Grandview Middle School and was an

employee acting within the scope and course of his employment with Grandview C-4 School

District. On December 5, 2008, Ware conducted a wrestling practice at Grandview High School.

The practice included both high school wrestlers and middle school wrestlers, and Woods was

present at the practice. Woods, an eighth grader at the time, claims that he was injured during the

practice and seeks damages from Ware on the basis of negligence. Specifically, Woods avers he

was injured participating in a drill performed with another wrestler who was a member of the

Grandview High School wrestling team. Ware was the only faculty member present at the

practice and was the sole coach in-charge of the practice.

In his first amended petition for damages, Woods alleged that Ware "owed Plaintiff a

ministerial duty to provide for Plaintiff Devin Woods' safety and welfare by ensuring that

Plaintiff be properly supervised and instructed while engaged in school activities, specifically

wrestling practice." Specifically, Woods alleged that Ware "breached the duty owed to Plaintiff

Devin Woods by instructing him to wrestle a much more experienced and larger High School

wrestler[.]"

Grandview C-4 School District policies provide:

Grandview CSD #4—Safety Program—EB-C.GNV: Including but not

limited to, the following: Proper supervision of students and other citizens using

the school facilities will be required.

Grandview CSD #4—Staff Conduct and Ethics—GBCB-C.GNV:

Including, but not limited to, the following: . . . (8) Supervise all students at all

times during the school day; and during any school activity. . . . (21) Recognize

the difference among students and seek to meet individual needs.

Grandview CSD #4—District-Sponsored Extracurricular Activities and

Groups—IGD-C.GNV: Including, but not limited to, the following: All

extracurricular activities must have an appointed sponsor, advisor, or coach. It

shall be the duty of each individual to attend all meetings, functions, or practices

2

of the relevant group, advise and supervise students and keep the appropriate

principal informed regarding activities.

Further, MSHSAA Bylaw 301 provides:

a. Practice – Any attempt of a coach or teacher to teach any phase of a

game or activity to any squad or part of a squad or to have any squad or part of a

squad engage in drills under the supervision of a coach, or from directions

provided by the coach, involving what has already been taught. Try-outs, so-

called "skull drills," "orientation meetings," etc., are considered practices. Except

as provided for in Bylaws 232.0-c and 238.2-a, a junior or senior high school

student shall be permitted to participate in school practices only with teams of the

school where he/she is properly enrolled.1

Ware filed a motion for summary judgment asserting that he was entitled to the protection

afforded by the doctrine of official immunity because his actions were in the course and scope of

his responsibilities as the wrestling coach at Grandview Middle School and were fully

discretionary. In particular, he asserted that he was entitled to judgment as a matter of law

because the undisputed facts established that there were no statutory or departmentally-mandated

duties regarding how he was to conduct the wrestling practice. The circuit court agreed and

granted Ware's motion for summary judgment. Woods appeals.

Our review of a summary judgment is de novo. ITT Commercial, 854 S.W.2d at 376.

"The propriety of summary judgment is purely an issue of law." Id. We will affirm the circuit

court's grant of summary judgment if no genuine issues of material fact exist and the moving

party is entitled to judgment as a matter of law. Id. at 380; Rule 74.04. A "defending party" may

establish a right to judgment by showing:

(1) facts that negate any one of the claimant's elements facts [sic], (2) that the

non-movant, after an adequate period of discovery, has not been able to produce,

and will not be able to produce, evidence sufficient to allow the trier of fact to

find the existence of any one of the claimant's elements, or (3) that there is no

1

We added the emphasis.

3

genuine dispute as to the existence of each of the facts necessary to support the

movant's properly-pleaded affirmative defense.

ITT Commercial, 854 S.W.2d at 381 (emphasis omitted). "Where summary judgment has been

granted based upon an affirmative defense of official immunity, 'we must consider whether there

is a genuine dispute as to the existence of facts necessary to support this properly pleaded

affirmative defense.'" Nguyen v. Grain Valley R-5 School Dist., 353 S.W.3d 725, 729 (Mo. App.

2011) (quoting Conway v. St. Louis Cnty., 254 S.W.3d 159, 164 (Mo. App. 2008)).

In his first point on appeal, Woods contends that the circuit court erred in granting

summary judgment because Ware failed to meet his burden to prove the absence of genuine

issues of material fact regarding the applicability of his defense of official immunity. Woods

asserts that he demonstrated a genuine dispute as to four of the alleged material facts that Ware

claimed were uncontroverted and that were necessary to obtain judgment as a matter of law.

In support of his motion for summary judgment, Ware attached a Statement of

Uncontroverted Facts, which included these four statements:

The Missouri State High School Activities Associations' ("MSHSAA')

regulations titled "MSHSSA Wrestling Junior High School Weight Classes" and

"Responsibility for Supervision" do not apply or concern wrestling practices

conducted by member schools, including Grandview Middle School and

Grandview High School because wrestling practices conducted by schools are not

considered interscholastic events by MSHSAA even in the case of joint practices

with other schools. See Affidavit of Kerwin Urhahn, . . . Exhibit A ¶¶ 2 and 3.

In 2008 there were no District mandated policies or procedures regarding

how wrestling coaches should conduct their practices, including how wrestlers

should be paired and what exercises or drills they performed. See Affidavit of

Stephen Robertson, . . . Exhibit B ¶3.

The decisions on how to conduct wrestling practice were left to the

judgment and discretion of the wrestling coach. See Affidavit of Stephen

Robertson, . . . Exhibit B ¶3.

4

It was up to the discretion of the wrestling coach how to supervise

students using school facilities, and how to recognize the difference among

student and seek to meet individual needs. See Affidavit of Stephen

Robertson, . . . Exhibit B ¶3.

In response to these statements of uncontroverted fact, Woods objected to the affidavits relied on

to support the statements of fact and asserted that the affiants' comments were "not factual

statements, but improper legal conclusions, and should not be considered in ruling" upon the

motion for summary judgment. Further, as to the last three statement of facts, Ware objected on

the grounds that the affiant was incompetent and lacked sufficient knowledge to testify regarding

whether there were any policies that pertained to wrestling practice and how to conduct a

wrestling practice.

In ruling upon the motion for summary judgment, the circuit court specifically said that it

"did not take into consideration the affidavits . . . when rendering [its] decision." In its decision,

the circuit court merely set forth the school district's policies and the MSHSAA bylaw at issue

and determined that as a matter of law2 that they did not create a ministerial duty. The court

determined that Ware's duties to properly supervise and attend practices as stated in the school

district's policies and the MSHSAA Wrestling Manual were discretionary and that Ware did not

breach any ministerial duty. Hence, to the extent that Woods contends that he controverted the

aforementioned statement of facts by objecting to the affidavits that Ware relied on as support for

the statements, his contention is without merit because the circuit court did not even rely on the

affidavits in granting Ware's motion for summary judgment.

2

In his objections to the statement of uncontroverted facts, Woods even argued that the affiants were

making legal conclusions that should not be considered in ruling upon the motion for summary judgment.

5

In his second point on appeal, Woods asserts that he demonstrated 11 additional material

facts, which created genuine issues of fact as to the applicability of Ware's defense of official

immunity. The 11 additional facts identified by Woods were:

1. This was Defendant's Ware's first time working as a wrestling coach for

a school district.

2. Defendant Ware conducted a wrestling practice which included both

High School wrestlers and Middle School wrestlers at Grandview High School.

3. Defendant Ware was the only faculty member at said practice.

4. Defendant Ware was the sole coach in-charge of said practice.

5. Plaintiff Devin Woods was in eighth grade at Grandview Middle

School, was a member of the Grandview Middle School Wrestling team, and

attended said practice.

6. As head coach of the Grandview Middle School Wrestling Program,

Defendant Ware was responsible for being accustomed with and follow the rules

and regulations of MSHSAA for 2008-2009 Wrestling Season.

7. MSHSAA bylaw 301 applies to wrestling practice.

8. MSHSAA bylaw 301 prohibits practice between a member of junior

high school and member high school.

9. Defendant Ware conducted a wrestling practice which included both

High School wrestlers and Middle School wrestlers at Grandview High School in

violation of MSHSAA bylaw 301.

10. Mr. Robertson, the athletic director of Grandview C-4 School District,

expected Defendant Ware to follow the [school district's] Policies[.]3

11. The Grandview MSHSAA school members are expected to report to

MSHSAA a violation such as the "practice" that was conducted by Defendant

Ware.

3

Woods' statement of facts quoted the school district's policies that we listed earlier in our statement of

facts: Grandview CSD #4—Safety Program—EB-C.GNV; Grandview CSD #4—Staff Conduct and Ethics—

GBCB-C.GNV; and Grandview CSD #4—District-Sponsored Extracurricular Activities and Groups—IGD-C.GNV.

6

Ware concedes that, although he objected to all the above mentioned facts on the basis that they

were not material and were not genuine facts in dispute, he admitted all these facts except Fact

No. 6. None of these facts, however, precluded the entry of summary judgment in this case as

will be more fully explained infra in discussing Woods's third point on appeal. Indeed, Woods

offers no explanation as to why any of these facts are material to the motion for summary

judgment. Woods merely asserts that these additional facts negated the material facts raised by

Ware.

In his third point on appeal, Woods asserts that the circuit court erred in granting

summary judgment in favor of Ware based on official immunity because (1) Ware failed to

properly plead the affirmative defense of official immunity; (2) Ware was not a "public official,"

and (3) a genuine dispute existed as to whether Ware breached ministerial duties as opposed to

discretionary duties. We disagree.

"Official immunity protects public officials from liability for alleged acts of ordinary

negligence committed during the course of their official duties for the performance of

discretionary acts." Davis v. Lambert-St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc

2006). "Official immunity is intended to provide protection for individual government actors

who, despite limited resources and imperfect information, must exercise judgment in the

performance of their duties." Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. banc

2008). "Its goal is also to permit public employees to make judgments affecting public safety

and welfare without concerns about possible personal liability." Id.

Woods argues that Ware failed to properly plead the affirmative defense of official

immunity. In particular, Woods asserts that Ware failed to plead specific facts showing that he

was entitled to claim official immunity as a defense. We disagree. Rule 55.08 requires:

7

In pleading to a preceding pleading, a party shall set forth all applicable

affirmative defenses and avoidances[.] A pleading that sets forth an affirmative

defense or avoidance shall contain a short and plain statement of the facts

showing that the pleader is entitled to the defense or avoidance.

"When determining the sufficiency of the allegations setting forth a defendant's affirmative

defense, we may look to the responsive pleadings as a whole." Roth v. Roth, 176 S.W.3d 735,

738 (Mo. App. 2005). Here, Ware plainly asserted the affirmative defense of official immunity.

In addition, Ware admitted Woods's allegations in the amended petition that he was an employee

of a school district acting in the scope and course of his duties for his employer. Ware denied

Woods's allegation in the amended petition that Ware owed Woods a ministerial duty to "properly

supervise and instruct" Woods while engaged in wrestling practice. Ware's allegations in the

responsive pleading as a whole constitute a short and plain statement of the facts supporting the

defense of official immunity.

Woods further argues that, even if Ware properly pled his affirmative defense of official

immunity, Ware is not entitled to the protection afforded by the doctrine of official immunity

because he is not a public official. In Southers v. City of Farmington, the Missouri Supreme

Court declared that official immunity protects all public employees "from liability for alleged

acts of negligence committed during the course of their official duties for the performance of

discretionary acts." 263 S.W.3d at 610. To the extent that Woods claims that official immunity

applies only to public employees whose actions are purely governmental in nature, his contention

is without merit. "Missouri courts have routinely extended official immunity to discretionary

acts even when the public official's actions were not governmental in nature." Richardson v. City

of St. Louis, 293 S.W.3d 133, 141 (Mo. App. 2009). As the Richardson court recognized, the

Missouri Supreme Court has "thoroughly discussed the scope of official immunity and did not

8

restrict immunity only to those actions which 'go to the essence of governing.'" Id. (citing

Southers, 263 S.W.3d at 610-11).4 Thus, as a coach hired by a public school district, Ware is a

public employee entitled to official immunity for his discretionary acts. Nguyen, 353 S.W.3d at

731; Boever v. Special School Dist. Of St. Louis Cnty., 296 S.W.3d 487, 491-92 (Mo. App. 2009).

As a public employee, the true issue in this case is whether Ware established through

undisputed facts that the alleged negligence occurred while he was performing a discretionary

act. Woods contends that a genuine dispute existed as to whether Ware breached ministerial

duties as opposed to discretionary duties.

Official immunity is designed to protect individual public employees who must exercise

discretion in performance of their duties. Davis, 193 S.W.3d at 765. "The official immunity

doctrine, however, does not provide public employees immunity for torts committed when acting

in a ministerial capacity." Southers, 263 S.W.3d at 610. "Whether an act can be characterized as

discretionary depends on the degree of reason and judgment required." Id. A discretionary act

requires the exercise of reason and discretion in determining how an act should be done or what

course of action should be pursued. Davis, 193 S.W.3d at 763. A ministerial function is one

which is "'of a clerical nature which a public officer is required to perform upon a given state of

facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to

4

Woods relies on several cases in support of his argument that Ware is not a public officer entitled to assert

the defense of official immunity. Those cases include State ex rel. Eli Lilly and Co. v. Gaertner, 619 S.W.2d 761

(Mo. App. 1981); Jackson v. Roberts, 774 S.W.2d 860 (Mo. App. 1989); Lehmen v. Wansing, 624 S.W.2d 1 (Mo.

banc 1981); Spearman v. Univ. City Public School Dist., 617 S.W.2d 68 (Mo. banc 1981), Kersey v. Harbin, 591

S.W.2d 745 (Mo. App. 1979). These cases, however, were decided before the Missouri Supreme Court issued its

decision in Southers, holding that the official immunity doctrine protects all public employees "from liability for

alleged acts of negligence committed during the course of their official duties for the performance of discretionary

acts." 263 S.W.3d at 610. This court and this court's Eastern District, relying on the Missouri Supreme Court's

clarification of the doctrine of official immunity in Southers, both found that teachers are public employees who are

protected from liability for negligent acts committed during the course of their official duties for the performance of

discretionary acts. Nguyen, 353 S.W.3d at 731; Boever, 296 S.W.3d at 492; see also Nine v. Wentzville R-IV School

Dist., No. 4:11-CV-353 CEJ, 2011 WL 2564767 (E.D. Mo. June 28, 2011) (teachers are public officials entitled to

official immunity).

9

his own judgment or opinion concerning the propriety of the act to be performed.'" Id. (citation

omitted). To be liable for official acts, a public employee must violate either a departmentally-

mandated duty or a duty imposed by statute or regulation. Nguyen, 353 S.W.3d at 730. "[A]

'departmentally-mandated duty' may clearly arise from sources other than statutes or regulations.

Such a duty can arise from departmental rules, the orders of a superior, or the nature of the

position for which the defendant was employed." Id. "The determination of whether an act is

discretionary or ministerial is made on a case-by-case basis, considering: (1) the nature of the

public employee's duties; (2) the extent to which the act involves policymaking or exercise of

professional judgment; and (3) the consequences of not applying official immunity." Southers,

263 S.W.3d at 610.

Woods asserts that the allegations of negligence in this case involve the failure of Ware to

carry out his ministerial duties of following the school district's and MSHSAA's policies, bylaws,

rules and regulation concerning the supervision of students. Woods claims that Ware violated

ministerial duties involved in four different Grandview C-4 School District policies in failing to

supervise the wrestling practice. Those policies are:

Grandview CSD #4—Safety Program—EB-C.GNV: Including but not

limited to, the following: Proper supervision of students and other citizens using

the school facilities will be required.

Grandview CSD #4—Staff Conduct and Ethics—GBCB-C.GNV:

Including, but not limited to, the following: . . . (8) Supervise all students at all

times during the school day; and during any school activity. . . . (21) Recognize

the difference among students and seek to meet individual needs.

Grandview CSD #4—District-Sponsored Extracurricular Activities and

Groups—IGD-C.GNV: Including, but not limited to, the following: All

extracurricular activities must have an appointed sponsor, advisor, or coach. It

shall be the duty of each individual to attend all meetings, functions, or practices

of the relevant group, advise and supervise students and keep the appropriate

principal informed regarding activities.

10

None of these policies specifically define what it means to properly supervise or conduct a

wrestling practice. Determining how to supervise and conduct the wrestling practice is left to the

discretion of the coach. The policies do not mention terms such as "safety" and "welfare" as

alleged in Woods's first amended petition and do not speak to weight restrictions of wrestlers or

how to pair wrestlers during practices. The policies merely dictate that students should be

"properly supervised" and that a coach should "seek to meet individual needs." These dictates do

not create a ministerial duty owed by Ware. Instead, the policies leave it to the discretion of the

wrestling coaches to determine how to supervise students and how to recognize the difference

among students and seek to meet their individual needs.

This court's decision in Warren v. State, 939 S.W.2d 950 (Mo. App. 1997), is analogous.

In Warren, a prison inmate, who was injured while working with a table saw in a prison furniture

factory, sued prison officials, alleging that his injuries were caused by the table saw's not having

a safety guard. Id. at 952. The inmate alleged that the prison officials violated a ministerial duty

because a Missouri statute mandated the use of "suitable" equipment for the correctional industry

and services program and a Department of Corrections regulation required "appropriate safety

guards." Id. at 953. This court determined that the prison officials were protected by the official

immunity doctrine. Id. at 954. Although the statute and regulation required "suitable"

equipment and "appropriate" safety guards, the court concluded that neither the statute nor the

regulation described what constituted "suitable" or "appropriate" safety equipment. Id. The

court found that "[w]hat was suitable and appropriate was a matter left up to the judgment and

discretion of the officials involved." Id. Thus, because a discretionary duty was involved, the

circuit court declared that the prison officials' exercise of that discretion was protected by the

11

official immunity doctrine. Id. The same is true in this case. Just as it was left up to the prison

officials to determine what constituted "appropriate" and "suitable" safety equipment, it was left

up to Coach Ware to determine what constituted "proper supervision" and how to "recognize the

difference among students and seek to meet individual needs."

In response to Ware's motion for summary judgment, Woods also argued that MSHSAA

Bylaw 301(a) created a ministerial duty that Ware breached when he allowed Woods to practice

with a high school wrestler.5 To understand MSHSAA Bylaw 301(a), however, we must look at

the entire bylaw and look at the context in which it appears. MSHSAA Bylaw 301, entitled

"Definitions," provides:

a. Practice -- Any attempt of a coach or teacher to teach any phase of a

game or activity to any squad or part of a squad or to have any squad or part of a

squad engage in drills under the supervision of a coach, or from directions

provided by the coach, involving what has already been taught. Try-outs, so-

called "skull drills," "orientation meetings," etc., are considered practices. Except

as provided for in Bylaws 232.0-c and 238.2-a, a junior or senior high school

student shall be permitted to participate in school practices only with teams of the

school where he/she is properly enrolled.6

b. Conditioning -- Any attempt by the coach to engage the student in

specific physical activity, drills, and/or instruction involving physical activity

designed to elevate the student's level of physical condition for a specific sport.

c. Scrimmage -- Practice of two teams of the same squad under partial

game conditions.

d. Game -- A game is any organized play between teams not of the same

school. Whether or not officials are hired, admissions charged, etc., are not

factors in determining whether the play constitutes a game. So-called "scrimmage

games" cannot be played before the date of the first allowable game, must be

5

On appeal, the only MSHSAA rule Woods relies on as creating a ministerial duty is MSHSAA Bylaw 301.

In his first amended petition, Woods argued that other MSHSAA rules and regulations created ministerial duties that

applied to wrestling practices. In this appeal, however, Woods has abandoned his reliance on other MSHSAA rules

and regulations and relies solely on MSHSAA Bylaw 301.

6

We added the emphasis.

12

counted as a game on the school's schedule, and only if the school has not

scheduled the maximum number of games allowed.

e. Preseason Interschool Football Scrimmage -- A football practice

event conducted on the Friday or Saturday of Week 8 of the Standardized

Calendar involving three or four teams. Play occurs only under partial game

conditions as defined in By-Law 350.

f. Athletic Jamboree -- An event in which each school competes 4

quarters or less. This shall be counted as a game of the school's schedule.

RELATED QUESTION(S) AND ANSWER(S) BELOW

Q1: Our basketball coach wishes to "scrimmage"a neighboring school

team. Is this permissible and will this count against our game limit?

A1: Yes. However, anytime a so-called scrimmage involves students

from more than one high school, it is viewed to be an interscholastic contest. An

interschool scrimmage cannot be played before the date of the first allowable

game for the season, must be counted as a game on the school's schedule, and

may be played only if the school has not scheduled the maximum number of

games allowed.

Q2: Our school will have an open gym on Saturday afternoon following

our boys basketball team practice. Our coach has advised our players they can

stay and scrimmage against people in our community. Is this acceptable?

A2: No. During the school sport season a team may only practice with

the school's teams.

First, it should be noted that MSHSAA Bylaw 301 sets forth definitions. In subsection

(a), it provides the meaning of the term "practice" as that term is used in MSHSAA Bylaws. The

definition of "practice" does not dictate how a coach should "properly supervise" or ensure the

"safety and welfare" or the students engaged in the activity. It does not provide a ministerial

duty for coaches to follow. Second, when read in context of the entire bylaw, MSHSAA Bylaw

301 merely provides a definition of "practice" to determine whether interscholastic competitions

are occurring during practices and whether such practices would be counted as games for the

purpose of determining the maximum numbers of games that a team may play during a season.

13

The bylaw is attempting to level the playing field between schools, making sure that teams are

not gaining competitive advantages by practicing with other teams or having interscholastic

scrimmages with other teams. The bylaw does not concern or provide any specificity about the

manner in which a coach should conduct a practice. Indeed, the sole fact which determines

whether a combined practice of middle school students and high school students is allowed by

MSHSAA Bylaw 301 is whether the two schools have separate MSHSAA memberships;7 it has

nothing to do with safety. Indeed, it was perfectly compliant with MSHSAA Bylaw 301 for

Grandview Middle School and Grandview High School to have a combined practice so long as

the schools counted the practice as a game or a meet and did not exceed the permitted number of

games or meets.

Thus, when read in context, the circuit court determined as a matter of law that MSHSAA

Bylaw 301(a) did not create a ministerial duty. We agree. Ware was performing a discretionary

act when he supervised and conducted the wrestling practice when Woods was injured. Because

a discretionary duty was involved, Ware's exercise of that discretion is protected by the doctrine

of official immunity.

Moreover, even if we assume the school district had adopted the school policies and

MSHSAA bylaws as "departmentally mandated duties," the Missouri Supreme Court has held

that "[p]ublic employees' conduct that is contrary to applicable statutes or policies can constitute

evidence that their conduct was negligent, but that conduct does not remove their negligence

from the protections of the official immunity or public duty doctrines where the provisions at

issue indicate no intent to modify or supersede these common law immunity protections."

7

Grandview Middle School and Grandview High School maintain separate memberships in MSHSAA.

Thus, MSHSAA considers them to be two separate teams. The schools had the option of sharing a single

membership but chose not to do so.

14

Southers, 263 S.W.3d at 617. In this case, nothing in the school district policies or MSHSAA

bylaws supplant the common law immunity protections. Thus, the official immunity doctrine is

unaffected by allegations of policy violations. Rhea v. Sapp, 463 S.W.3d 370, 379 (Mo. App.

March 3, 2015) (court rejected appellant's argument that a departmental policy removed a

fireman's discretion or otherwise rendered the fireman's activity ministerial).

We, therefore, conclude that the circuit court did not err in granting summary judgment in

favor of Ware. No genuine issues of material fact remained, and Ware was entitled to judgment

as a matter of law. We affirm the circuit court's grant of summary judgment.

/s/ JAMES EDWARD WELSH

James Edward Welsh, Judge

All concur.

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