Court of Appeals of Missouri, Eastern District, Fifth Division
CHRISTY E. HIGGENBOTHAM, Appellant,
PIT STOP BAR AND GRILL, LLC, Respondent.
from the Circuit Court of Warren County 13AA-CC00053-01
Honorable Wesley C. Dal ton
M. Dowd, Chief Judge
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.
and Procedural Background
following facts are not disputed: Curtis Huenefeld married
Lisa Huenefeid, the owner of Pit Stop, on June 12,
2007. 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.
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
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.
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).
I: Respondeat Superior
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.
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)).
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)).
employer generally is not liable for injuries caused by an
employee's operation of a motor vehicle while traveling
to or from work.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