Boudwin v. Hastings Bay Marina Inc.

• Decision Date: 03 August 2010
• Docket Number: No. 09-2393.,09-2393.
• Citation: 614 F.3d 780
• Parties: Gelpi BOUDWIN, Plaintiff-Appellant, v. HASTINGS BAY MARINA, INC., doing business as Little Rock Yacht Club, in personam; Lovie Dovie, in rem, also known as Lucy Dovie, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

614 F.3d 780

Gelpi BOUDWIN, Plaintiff-Appellant,

v.HASTINGS BAY MARINA, INC., doing business as Little Rock Yacht Club, in personam; Lovie Dovie, in rem, also known as Lucy Dovie, Defendants-Appellees.

No. 09-2393.

United States Court of Appeals,Eighth Circuit.

Submitted: April 12, 2010.

Filed: Aug. 3, 2010.

Frank S. Thackston, Jr., Greenville, MS, for appellant.

Stephen B. Niswanger, Alexander Cale Block, Little Rock, AR, for appellee.

Before BYE, BEAM, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Gelpi Boudwin appeals the district court's ¹ grant of summary judgment in favor of Hastings Bay Marina in Boudwin's negligence action for injuries he sustained when he fell into a hatch in a boat on the marina's premises. Boudwin argues he raised a genuine issue of material fact as to whether Hastings Bay was liable for injuries caused by its employee. We affirm.

I

In an effort to purchase a houseboat, Gelpi Boudwin enlisted the aid of his son- in-law, Tim Shelton, to contact local marinas and inquire whether they had any boats for sale. One of these marinas, Hastings Bay Marina, informed Shelton there were a couple of boats for sale at the marina and Shelton and Boudwin could view the boats if they desired. The person on the telephone also told Shelton to contact Sean Gossage, Harbor Master at the Yacht Club, when he arrived to view the boats. Gossage's duties at the club included renting slips, pumping fuel, keeping the grass and grounds cleaned, and hauling boats in and out of the water.

Upon arriving at the marina, Shelton asked to be directed to Gossage. Thereafter, Gossage, Boudwin, Shelton, and Shelton's wife inspected the first boat that was for sale without incident. The group then proceeded to the second boat for sale moored at Hastings Bay, the Lovie Dovie. ² When they reached the Lovie Dovie, the group discovered the interior cabin of the boat was locked. Gossage told the group he would break into the boat to allow them to inspect the internal cabin, to which Boudwin and Shelton protested. Gossage, who lived in a vessel moored in the slip next to the Lovie Dovie, assured Boudwin it was okay to break into the boat because “they don't have a problem with us doing this.”

After entering and inspecting the inside cabin, Boudwin wished to inspect the bottom of the boat. Upon locating the hatch cover, Shelton initially tried to pry the cover loose but was unsuccessful. Gossage was able to remove the hatch cover shortly thereafter. After inspecting the boat's instrument control panel, Boudwin accidentally stepped into the hole where the hatch cover was located and sustained physical injury after falling through the opening.

Boudwin apparently purchased the Lovie Dovie at some point after the accident. On June 1, 2004, Hastings Bay entered into a slip rental agreement with Melodye Boudwin (Gelpi Boudwin's wife) for the Lovie Dovie. Boudwin failed to make payments for the slip rental and Hastings Bay eventually obtained a marina operator's lien on the boat and on August 24, 2006, sold the Lovie Dovie to satisfy Boudwin's outstanding debt to the Marina.

On March 28, 2007, Boudwin filed this negligence action against Hastings Bay, joining the Lovie Dovie in rem. Hastings Bay answered and counterclaimed for abuse of process and tortious interference with contract, claiming the lawsuit was intended to interfere with the transfer of the boat and was an attempt to regain possession of the Lovie Dovie. Hastings Bay subsequently brought a motion for summary judgment, contending it could not be liable because it did not have ownership, possession, or control of the Lovie Dovie. The district court granted summary judgment in favor of Hastings Bay. Boudwin appealed, but the appeal was dismissed as premature because the district court had not entered judgment and the counterclaims were still pending. The district court subsequently entered judgment on Boudwin's claims and the parties agreed to stay the trial on the counterclaims until the resolution of this appeal. Despite the stay, we maintain jurisdiction over this appeal because the district court certified the case for appeal under Federal Rule of Civil Procedure 54(b).

II

We review a district court's decision to grant summary judgment de novo.

Anda v. Wickes Furniture Co., Inc., 517 F.3d 526, 531 (8th Cir.2008). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We view the evidence, and make all reasonable inferences from the evidence, in favor of the nonmoving party. Sitzes v. City of West Memphis Ark., 606 F.3d 461, 465 (8th Cir.2010). “Disputes that are not ‘genuine,’ or that are about facts that are not ‘material,’ will not preclude summary judgment.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In a diversity action such as this, we apply the substantive law of the forum State, which is Arkansas in this matter. ³ Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir.2010). “Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff's injuries.” Fordyce Bank & Trust Co. v. Bean Timberland, Inc., 369 Ark. 90, 251 S.W.3d 267, 270-71 (2007). “Proof of an accident, with nothing more, is not sufficient to make out a claim for negligence.” Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715, 724 (2003). In this case, Boudwin's opposition to summary judgment is based on a number of different legal theories, including respondeat superior, actual authority, and apparent authority. We address each theory in turn.

Generally, plaintiffs seek to hold employers responsible for the negligent acts of their employees through the doctrine of respondeat superior. Med. Assurance Co., Inc. v. Castro, 2009 Ark. 93, 302 S.W.3d 592, 597 (2009). Under the doctrine, an employee's tortious conduct may cause the employer to be held liable if the conduct of the employee or agent occurred within the scope of his employment. Id. (citing Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87, 92 (2006)). In determining whether an employee acted within the scope of his employment, Arkansas courts look to whether the employee is acting in the interests of his employer, as opposed to acting solely in his personal interest. Barnes, 237 S.W.3d at 92-93.

Hastings Bay argues that Gossage was not acting within the scope of his employment when he showed the Lovie Dovie to Boudwin in order to gauge his interest in purchasing the boat. We agree. It is undisputed that Hastings Bay did not own, possess, manage, or control the Lovie Dovie; nor is Hastings Bay in the business of selling boats. Rather, Gossage was unequivocal in his testimony that he was showing the Lovie Dovie for sale as a favor to the then-owners. Gossage's actions therefore were not taken for the benefit of Hastings Bay, and his conduct fell outside his scope of employment because his position as harbor master did not involve selling, or brokering sales of, the independently owned vessels at the marina. As a result, no reasonable jury could find in favor of Boudwin under typical respondeat superior grounds.

Boudwin also contends Gossage was Hastings Bay's agent under theories of actual and apparent authority. As a result, Boudwin argues, Hastings Bay is vicariously liable for Gossage's negligence. We disagree. ⁴ First, for the reasons set forth above, Gossage did not maintain actual authority because Hastings Bay did not direct him to engage in the sale of the Lovie Dovie, much less to break into and enter the vessel in order to accomplish such a purpose. See Sterne, Agee & Leach, Inc. v. Way, 101 Ark. App. 23, 270 S.W.3d 369, 376 (2007) (noting it was not clear whether actual authority was conferred on the agent because he was not acting on behalf of the principal); Trs. of the Graphic Commc'ns Int'l Union Upper Midwest Local 1M Health & Welfare Plan v. Bjorkedal, 516 F.3d 719, 727 (8th Cir.2008) (“Actual authority is...