That presumption does not operate in plaintiff's favor with respect to Kumm since he was not driving a United States automobile. The district court correctly decided that the Illinois courts would apply the rule which the Illinois Appellate Court expressed negatively in dictum in Hogan v. City of Chicago, 319 Ill. App. 531, 49 N.E.2d 861 (1943). There the injury for which the city was held vicariously liable occurred while the city employee, driving his own car, with approval of his superior, was on his way from the city's central assignment place to the truck on which he was to work.

Under Illinois law, for an employer to be vicariously liable for an employee's torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment. See Pyne v. Witmer, 129 Ill.2d 351, 360, 543 N.E.2d 1304 (1989); Hogun v. City of Chicago, 319 Ill. App. 531, 536, 49 N.E.2d 861 (1943). Whether such a relationship exists is a factual question, and summary judgment is inappropriate when scope of employment is at issue.

See Hogan v. City of Chicago, 319 III.App. 531, 537-538, 49 N.E.2d 861 (1943); see generally, Annotation, 52 A.L.R.2d 287, 303 (1954). Similarly, the nature of the employment relationship may vary with respect to the acts involved, partaking, with respect to certain elements, of a master-servant relationship and, with respect to other elements of a relationship akin to that of an independent contractor.

Cook v. Sanger, 110 Cal.App. 90, 101-102. Hogan v. Chicago, 319 Ill. App. 531. Heintz v. Iowa Packing Co. 222 Iowa, 517. Webster v. Mountain States Tel. Tel. Co. 108 Mont. 188. Peterson v. Brinn Jensen Co. 134 Neb. 909, 911. Kohl v. Albert Lifson Sons, Inc. 128 N.J.L. 374. Gutov v. Krasne, 266 App. Div. (N.Y.) 302, 305 (applying New Jersey law but indicating that New York law is the same).

Negligent entrustment should not be mistaken for liability of a principal for the negligence of an agent acting within the scope of employment, which is commonly referred to as the doctrine of respondeat superior. ( Hogan v. City of Chicago (1943), 319 Ill. App. 531, 540, 49 N.E.2d 861, 865; 4 Ill. L. Prac. Automobiles and Motor Vehicles § 213 (1971); 3 Am.Jur.2d Agency § 280 (1986).) The Teter opinion also discussed Illinois' insistence on fact pleading, and indicates the insufficiency of the allegations in count III, paragraph 7, and count XXVII, paragraph 6. Teter, 112 Ill.2d at 256, 492 N.E.2d at 1342.

• 18 It is well settled that the doctrine of respondeat superior is applicable only when the employee is acting within the scope of his employment ( Palmer v. Miller (1942), 380 Ill. 256, 43 N.E.2d 973; Insurance Co. of North America v. Hewitt-Robbins, Inc. (1973), 13 Ill. App.3d 534, 301 N.E.2d 78; Smith v. 601 Liquors, Inc. (1968), 101 Ill. App.2d 306, 243 N.E.2d 367; Brill v. Davajon (1964), 51 Ill. App.2d 445, 201 N.E.2d 253), and the employee must be acting within the scope of his employment with respect to the transaction or occurrence which gave rise to the injury. Metzler v. Layton (1939), 373 Ill. 88, 25 N.E.2d 60; Hogan v. City of Chicago (1943), 319 Ill. App. 531, 49 N.E.2d 861; Creek v. Naylor (1941), 309 Ill. App. 601, 33 N.E.2d 740. It is clear that an employee may be regarded as acting within the scope of his employment even though his conduct at the time of the accident was not authorized by his employer.

In order to determine the existence of a respondeat superior relationship we must look to the true relationship of the parties in this case. ( Hogan v. City of Chicago (1943), 319 Ill. App. 531, 535-36, 49 N.E.2d 861, 863.) Liability does not arise merely from the relation of parent and child. ( Arkin v. Page (1919), 287 Ill. 420, 422, 123 N.E. 30, 31. See also White v. Seitz (1930), 342 Ill. 266, 271, 174 N.E. 371, 373.) It arises from the "fact that the driver of the automobile was at the time [of the accident] engaged in doing the owner's business."

Thus, Carpenter's use of his own vehicle for his employer's business was not only with the latter's knowledge and consent, but also with his encouragement. When so driven, it was within the course of Carpenter's employment. Hogan v. City of Chicago, 319 Ill. App. 531, 539, 543-546, 49 N.E.2d 861 (1943). [7] Wood insists, however, that there is no evidence that he authorized Carpenter to invite anyone to ride as a "guest" with him.

In Linneen v. City of Chicago, 310 Ill. App. 274, the court stated: "It seems to us, however, that the liability of the city does not depend upon who owned the property bordering on the highway, nor who constructed the bridge, since the approaches and the bridge were part of the public highway which the city for years before this accident had invited the public to use. It is the duty of a municipality to exercise ordinary care to keep the public highway reasonably safe, including that part of the highway, if any, which has been constructed by a third party, provided that by invitation and consent of the city it is used for public travel. (O'Connell v. Chicago N.W.R. Co., 305 Ill. App. 430; Hogan v. City of Chicago, 168 Ill. 551, 558, 559, and cases cited therein; Town of Normal v. Bright, 223 Ill. 99.)" If the rule contended for by appellant was the law, defendant might have accepted this bridge with large holes in its floor through which persons and vehicles might fall and then seek to avoid liability on the ground that a third party constructed the bridge. Since the defendant had previously accepted the bridge where plaintiff's injuries occurred, the law fixed upon it the responsibility of exercising ordinary care for keeping and maintaining it in a reasonably safe and proper condition for public use. (City of Rock Island v. Starkey, 189 Ill. 515; Brown v. City of Streator, 324 Ill. App. 659.)

ccupied by the bridge, the city contending that Lincoln avenue and the bridge within the boundary lines of the sanitary district property was owned and controlled by the sanitary district until September 14, 1934, the date when the Board of Commissioners of Cook county accepted the transfer of the bridge and the right of way through the sanitary district property. It seems to us, however, that the liability of the city does not depend upon who owned the property bordering on the highway, nor who constructed the bridge, since the approaches and the bridge were part of the public highway which the city for years before this accident had invited the public to use. It is the duty of a municipality to exercise ordinary care to keep the public highway reasonably safe, including that part of the highway, if any, which has been constructed by a third party, provided that by invitation and consent of the city it is used for public travel. ( O'Connell v. Chicago N.W. R. Co., 305 Ill. App. 430; Hogan v. City of Chicago, 168 Ill. 551, 558, 559, and cases cited therein; Town of Normal v. Bright, 223 Ill. 99.) The city is in the position of having by ordinance compelled the widening of the public highway, without making any provision for the construction of the bridge of equal width, thereby creating an obstruction in the highway due to the use of a narrow bridge. This obstruction could probably have been made safe by narrowing the roadway so gradually that motorists would not be taken by surprise.