Burrell ex rel. Schatz v. O'Reilly Auto.
| Citation | 175 S.W.3d 642 |
| Decision Date | 31 October 2005 |
| Docket Number | No. 26598.,26598. |
| Parties | Robert C. BURRELL, by and through his Conservator, Teresa B. SCHATZ, Plaintiff-Respondent, v. O'REILLY AUTOMOTIVE, INC., Defendant/Third-Party Plaintiff-Appellant, v. Easy Living, Inc., Third-Party Defendant-Respondent. |
| Court | United States State Supreme Court of Missouri |
Kevin Case, Case Law Firm, Kansas City, John C. Holstein, James E. Meadows, Shughart Thomson & Kilroy, Springfield, for appellant.
Michelle Boehm O'Neal, Alison R. Hershewe, Larry Nichols, Hershewe Law Firm, Joplin, for respondent Robert C. Burrell.
John M. Waldeck, Waldeck, Matteuzzi & Sloan, P.C., Kansas City, for respondent, Easy Living, Inc.
This is a negligence case in which a jury awarded Robert C. Burrell ("Plaintiff") damages for injuries he received during a collision between a vehicle owned by O'Reilly Automotive, Inc. ("O'Reilly") and a motorized scooter ridden by Plaintiff. O'Reilly tried to get contribution by joining Easy Living, Inc. ("ELI") as a third-party defendant. This failed, however, because the trial court entered a summary judgment favorable to ELI.
On appeal, O'Reilly urges reversal because (a) the court allegedly gave an erroneous definitional instruction on "scope and course of employment;" (b) the court rejected proffered evidence that had Plaintiff worn a helmet, his injuries would have been less severe; and (c) there were disputed issues of fact on whether ELI was negligent and thus, the court committed reversible error when it sustained ELI's summary judgment motion. We affirm.
Plaintiff was forty-four years old at the time of the subject accident. The accident happened Sunday, August 5, 2001. At the time, Plaintiff was on a motorized scooter, a three-wheeled device designed to increase the mobility of persons with disabilities.1 The accident occurred when a pickup truck owned by O'Reilly and driven by Nicholas Toliver ("Toliver") struck Plaintiff's scooter as Plaintiff was crossing a street in Joplin, Missouri. Due to the impact, Plaintiff fell from the scooter, his head struck the pavement, and he was injured.
Before the accident, Plaintiff had many physical and mental limitations. These were caused by his myotonic dystrophy affliction.2 His problems included a low I.Q. (mid-sixties), impaired ability to speak, vision problems, difficulty walking, and decreased reflexes. Because of his limitations, a guardian was appointed for Plaintiff in 1989. In 1996, a conservator was appointed for him. Moreover, Plaintiff began receiving assisted living services from ELI several years before the accident.
Via a contract with Missouri's Department of Health ("the Department"), ELI is a company engaged in the business of helping persons with disabilities. One type of service provided by ELI is denominated "supported living."3
As of August 5, 2001, ELI provided Plaintiff with "supported living services" to help him deal with issues related to his myotonic dystrophy. Under the plan developed for Plaintiff, ELI was "to provide supported living services to [Plaintiff] consisting of training, teaching, modeling and verbal prompts to help [Plaintiff] keep `his home clean and tidy,' help him complete a daily `personal hygiene routine,' help him with `budgeting,' and help him deal with problems with `phone service, interactions with apartment management, [and] using public resources such as the library.'" This, however, was not a plan for full-time services. To the contrary, ELI was to provide only twenty to thirty hours of staff service hours each week, with no staff service hours on Sundays.4
In 1998, Plaintiff told ELI employees he wanted to buy a motorized scooter, specifically, one advertised as "designed to increase the mobility of persons with disabilities." At the time, ELI staff members saw that Plaintiff's myotonic dystrophy prevented him from walking long distances; accordingly, ELI staff members helped Plaintiff obtain a scooter like the one he had seen advertised. They did this by going with Plaintiff when he talked to his physician about using a scooter and by helping Plaintiff with the Medicaid paperwork.
On March 5, 1998, Dr. Andrew, Plaintiff's neurologist, wrote a prescription so Plaintiff could get the scooter. He did so because he "felt strongly" it was something Plaintiff needed due to the "profound weakness" of his muscles.5 Medicaid ultimately approved Plaintiff's request for a scooter. Thereon, Plaintiff got the scooter he was using on the accident date.
Just before the accident, Plaintiff's destination was the local library. He was on a sidewalk on the west side of Main Street, headed north. Plaintiff was not wearing a helmet, but was accompanied by a friend who was walking beside him.6 As Plaintiff approached the intersection of Eighth and Main Streets, Toliver was driving the O'Reilly pick-up east on Eighth Street. He was going to a pizza store to get lunch for himself and two fellow employees, following which he would go back to the O'Reilly store with the food. Because this was a Sunday — a day when O'Reilly employees worked straight through without a lunch break — there was testimony that Toliver's trip for pizza benefited O'Reilly since it allowed for broader store coverage and more customer service, i.e., the three store employees could be in house and serve customers while eating lunch.
When Toliver got to the intersection of Main and Eighth, he stopped because he was facing a red light. After stopping, Toliver looked left for traffic and, seeing none, started a right turn "on red." Simultaneously, Plaintiff entered the crosswalk across Eighth Street. As Toliver turned right, the O'Reilly truck struck the scooter and wedged it under the truck. This caused the scooter to lean over and Plaintiff either fell from, or was knocked from, the scooter. As a result, Plaintiff suffered multiple injuries, including severe head and brain injuries caused by his head striking the pavement.
Following the accident, Plaintiff sued O'Reilly for damages. The trial court rejected O'Reilly's third-party claim against ELI via summary judgment. The jury ruled for Plaintiff and judgment was entered on the jury's verdict. This appeal by O'Reilly followed.
Plaintiff relied on respondeat superior principles and the "dual purpose doctrine" to seek damages from O'Reilly for the accident caused by Toliver. Under the respondeat superior doctrine, liability for Toliver's negligence could be imposed on O'Reilly, provided Toliver was O'Reilly's employee and was engaged in an activity within the course and scope of his employment at the time of the accident. See McHaffie v. Bunch, 891 S.W.2d 822, 825[1] (Mo.banc 1995).
Plaintiff, however, was faced with the general rule that if at the time of an accident an employee has left work to fulfill a personal purpose not connected with his employment — such as going to lunch — the relation of employer and employee is thereby suspended and the employer is not liable for his employee's acts during the suspension. See Miceli v. Williams, 293 S.W.2d 136, 138[3] (Mo.App.1956). This rule attends "even though in carrying out his private mission the employee makes use of the employer's motor vehicle." Id. (citing Stone v. Reed, 247 S.W.2d 325, 330 (Mo.App.1952)).
Plaintiff does not appear to seriously question or dispute the "going to lunch" rule. He asserts, however, that an exception to that rule applies here, namely, the "dual purpose doctrine." This exception says that if the employee's work requires the travel, the employee is deemed to be in the course and scope of his employment although he may have been attending to a simultaneous purpose. Tuttle v. Muenks, 964 S.W.2d 514, 518[6] (Mo.App.1998). For the doctrine to apply, the travel must have been necessary even where a personal purpose is lacking. Id.
With this in mind, we turn to O'Reilly's second point. In relevant part, it reads:
Each point relied on for appellate review of alleged error should definitely formulate and isolate the exact issue to be reviewed. Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 477[17] (Mo.App.2001). This point does not meet that test as it charges the trial court with three separate and distinct errors. More than that, the point fails to the extent that it attempts to raise a claim it has waived, specifically, a claim that there was insufficient evidence to go to the jury on Plaintiff's "dual purpose" exception theory.
To explain, O'Reilly never denied Toliver was its employee; instead, it argued he was not acting within the scope and course of his employment when he used O'Reilly's truck to get lunch for himself and fellow employees. O'Reilly's defense was that Toliver was on a personal purpose trip (going for lunch) and the trip served no purpose for O'Reilly; consequently, the dual purpose theory was not an option for Plaintiff and he should lose.
O'Reilly's problem, however, is that it waived its claim that Plaintiff's evidence failed to create a jury question on the "course and scope" issue. It did so by not presenting that claim in its directed verdict motions. Inexplicably, O'Reilly's directed verdict...
To continue reading
Request your trial
-
Emmons v. Bridgestone Ams. Tire Operations, LLC, Case No. 1:10CV41 JAR
...that presents the danger of injury. See Haney v. Fire Ins. Exchange, 277 S.W.3d 789, 792 (Mo.App. 2009); Burrell ex rel. Schatz v. O'Reilly Auto., 175 S.W.3d 642, 656 (Mo.App. 2005); Stitt v. Raytown Sports Ass'n, Inc., 961 S.W.2d 927, 930-31 (Mo.App. 1998); Burns v. Black & Veatch Architec......
-
Miles v. Rich
...that presents the danger of injury. See Haney v. Fire Ins. Exchange, 277 S.W.3d 789, 792 (Mo.App.2009); Burrell ex rel. Schatz v. O'Reilly Auto., 175 S.W.3d 642, 656 (Mo.App.2005); Stitt v. Raytown Sports Ass'n, Inc., 961 S.W.2d 927, 930–31 (Mo.App.1998); Burns v. Black & Veatch Architects,......
-
ACE Am. Ins. Co. v. AERCO Int'l
... ... its assignee). See Miles ex rel. Miles v. Rich, 347 ... S.W.3d 477, 482 (Mo.Ct.App ... B&G. See also Burrell v. O'Reilly Auto., ... Inc., 175 S.W.3d 642 ... ...
-
Cluck v. Union Pac. R.R. Co.
...whether Clark's negligent conduct was committed while furthering the business of Union Pacific. See Burrell ex rel. Schatz v. O'Reilly Auto., Inc., 175 S.W.3d 642, 649-50 (Mo.App. 2005). Thus, to properly instruct the jury on Cluck's claim of co-employee negligence under MAI 24.01(A), the f......