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Higgenbotham v. Pit Stop Bar and Grill, LLC

Court of Appeals of Missouri, Eastern District, Fifth Division

March 6, 2018

CHRISTY E. HIGGENBOTHAM, Appellant,
v.
PIT STOP BAR AND GRILL, LLC, Respondent.

         Appeal from the Circuit Court of Warren County 13AA-CC00053-01 Honorable Wesley C. Dal ton

          OPINION

          James M. Dowd, Chief Judge

         This wrongful death lawsuit arises out of a drunken-driving incident in which Curtis Huenefeid, the intoxicated driver of a Ford F-150, struck and killed a pedestrian, Lisa Higgenbotham ("Decedent"), in the early morning hours of October 24, 2013 at North Walker Street near State Highway B in Montgomery City, Missouri. Christy Higgenbotham, Decedent's daughter, sued Huenefeld's employer, Pit Stop Bar and Grill, LLC ("Pit Stop"), asserting claims of respondeat superior liability and the negligent retention of Huenefeid in Pit Stop's employ. On Pit Stop's motion, the trial court entered summary judgment against Higgenbotham on both claims. Higgenbotham claims the trial court erred because there are genuine issues of material fact in the record that (1) Huenefeid was acting within the course and scope of his employment when he struck and killed Decedent because he was transporting Pit Stop's money for deposit at a bank, and (2) that Pit Stop negligently retained Huenefeid in its employ because it knew or should have known of Huenefeld's history and dangerous proclivity of driving while intoxicated but nevertheless put him in charge of enforcing Pit Stop's alcohol consumption policy, including supervising his own drinking, and provided him with free alcohol at work as a benefit of his employment. We agree and reverse and remand for trial on both claims.

         Factual and Procedural Background

         The following facts are not disputed: Curtis Huenefeld married Lisa Huenefeid, the owner of Pit Stop, on June 12, 2007.[1] From 2009 to 2014, Curtis Huenefeid worked for Pit Stop as a manager and cook. The evening of October 23, 2013, Huenefeid consumed several alcoholic beverages while on duty at Pit Stop, some before and some after closing the kitchen for the night, around 9:00 p.m. Huenefeid remained at Pit Stop that night until after the bar closed and left around 1:30 a.m. on October 24, 2013. When Huenefeid drove away from Pit Stop in his Ford F-150 pickup truck, he was intoxicated. Only blocks away from Pit Stop, he struck Decedent with his vehicle, killing her. Huenefeid was carrying $2, 004 in cash at the time of the collision. His weekly salary from Pit Stop was only around $280, and in the past Pit Stop had-at the end of some nights of business--required that someone take the proceeds to deposit in Pit Stop's local bank account.

         Immediately following the collision, Huenefeid was interviewed by an investigating police officer, Brandon Prosser. Later that day, Huenefeid was charged as a persistent offender with the class D felony of driving while intoxicated. On February 4, 2014, this charge was amended upward to the class C felony of first-degree involuntary manslaughter. And on March 5, 2014, Huenefeid pleaded guilty to this offense. He is currently an inmate of the Missouri Department of Corrections.

         Turning to this case, on November 27, 2013, Christy Higgenbotham filed against Pit Stop a civil action for the wrongful death of her mother. On May 26, 2017, the trial court granted summary judgment in favor of Pit Stop. The summary judgment record before the trial court included deposition testimony from both Curtis and Lisa Huenefeld, an affidavit from Officer Prosser, and an affidavit from one of Huenefeld's coworkers at Pit Stop, Sandy Gilbert. This appeal follows.

         Standard of Review

         We review de novo whether the trial court properly granted summary judgment. Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo.banc 1996). We view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences drawn from the record. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Evidence in the record presenting a genuine issue of material fact defeats a movant's right to summary judgment. Id. at 382. A genuine issue is a real and substantial one-not merely conjecture, theory, or possibility. Id. at 378. The dispute must not be merely argumentative, frivolous, or imaginary. Id. at 382. Finally, where the trial court does not set forth its reasoning in its order granting summary judgment, we presume the court based its decision on the grounds specified in the movant's motion for summary judgment. Rapp v. Eagle Plumbing, Inc., 440 S.W.3d 519, 522 (Mo.App.E.D. 2014).

         Point I: Respondeat Superior

         To decide Point I, we must determine whether on this record there is a genuine issue of material fact that Curtis Huenefeld, when he struck and killed Decedent, was transporting Pit Stop's money for deposit at a bank and was therefore acting within the course and scope of his employment. We believe there is.

         Under the doctrine of respondeat superior, an employer is liable for the misconduct of an employee where that employee committed such misconduct within the course and scope of his employment. Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77, 89 (Mo.App.E.D. 2012) (citing State ex rel Green v. Neill, 127 S.W.3d 677, 678-79 (Mo.banc 2004)). An act is within the course and scope of employment if (1) even though not specifically authorized, it is done to further the business or the interests of the employer under her general authority and direction and (2) it naturally arises from the performance of the employer's work. Id. at 90 (citing Daugherty v. AUee's Sports Bar & Grill, 260 S.W.3d 869, 872-73 (Mo.App.W.D. 2008); see also Chick v. Union Pac. R.R. Co., 367 S.W.3d 25, 29 (Mo.banc 2012)).

         Whether an act was committed within the scope and course of employment is measured not by the time or motive of the conduct, but by whether it was done by virtue of the employment and in furtherance of the business or interest of the employer. Chick, 367 S.W.3d at 29. So long as the act is fairly and naturally incident to the employer's business, although mistakenly or inadvisedly done, and did not arise wholly from some external, independent or personal motive, it is done while engaged in the employer's business. Dibrill, 383 S.W.3d at 90 (citing P.S. v. Psychiatric Coverage Ltd., 887 S.W.2d 622, 624 (Mo. App.E.D.1994)).

         An employer generally is not liable for injuries caused by an employee's operation of a motor vehicle while traveling to or from work.[2]Tran v. Dave's Elec. Co. Inc.,361 S.W.3d 417, 419 (Mo.App.W.D. 2011). But Missouri courts have recognized several exceptions to this rule. Tuttle v. Muenks,964 S.W.2d 514, 518 (Mo.App.W.D. 1998). One such exception is the dual purpose doctrine, which provides that if the employee's work requires travel, the employee is deemed to be in the course of his employment although he may have been attending to a ...


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