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Jones v. Lake Hickory R.V. Resort2/17/2004
ontrol." See Wyatt v. Walt Disney World, Co., 151 N.C. App. 158, 166, 565 S.E.2d 705, 710 (2002) ("` he critical element of an agency relationship is the right of control, and the principal must have the right to control both the means and the details of the process by which the agent is to accomplish his task in order for an agency relationship to exist'") (citation omitted); Hylton v. Koontz, 138 N.C. App. 629, 636, 532 S.E.2d 252, 257 (2000) (" he `vital test' in determining whether an agency relationship exists `is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details'") (citation omitted); Hoffman v. Moore Reg'l Hosp., 114 N.C. App. 248, 250, 441 S.E.2d 567, 569 (1994) (" he key factor is whether the alleged employer has the right to supervise and control the details of the work performed by the alleged employee"); see also Hodge v. McGuire, 235 N.C. 132, 136, 69 S.E.2d 227, 230 (1952) (noting that "possession of the right to exercise control over the servant may be quite as determinative of the relation of master and servant as is the actual exercise of such control" and deeming evidence of right to control sufficient to establish such a relationship).
In this case, there is evidence that the Resort delegated the duty to hold social functions on the Resort property to the Lessee Association and retained the right to review all those functions. In addition, there was testimony from employees that the Resort retained the power to deny activities, that employees would sit in on committee meetings held by the Lessee Association, that the committee would supply the Resort with a list of activities on a monthly basis, and that the Resort enforced its rules to keep the grounds safe. Thus, the majority opinion errs in concluding that there was no evidence on the element of control over the details of the activities by the Lessee Association, and the Resort is not entitled to judgment notwithstanding the verdict on the issue of agency.
Based on the foregoing, I would affirm the trial court's denial of the motion for judgment notwithstanding the verdict as to the issue of agency.
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