Hare v. Anthony

• Decision Date: 22 August 2000
• Citation: 25 S.W.3d 617
• Parties: (Mo.App. W.D. 2000) Denis H. Hare, et al., Appellant, v. David Anthony Cole, Respondent. WD57764 0
• Court: Missouri Court of Appeals

25 S.W.3d 617 (Mo.App. W.D. 2000)

Denis H. Hare, et al., Appellant, v. David Anthony Cole, Respondent.

WD57764

Missouri Court of Appeals Western District

08/22/2000

Appeal From: Appeal from the Circuit Court of Jackson County The Honorable Vernon E. Scoville, III, Judge¹

Counsel for Appellant: Albert W.L. Moore

Counsel for Respondent: Shawn Foster and John Schultz

Opinion Summary: Plaintiffs Denis and Michael Hare appeal the grant of a motion for summary judgment filed by defendants Domino's Pizza, Inc. and Cheeze & More, Inc., basing their appeal on the argument that the court erred in ruling that the defendants were entitled to judgment as a matter of law because the Hares could not show that there was any evidence that their employee David Cole was in the course and scope of his employment at the time of the collision; that the Hares are unable to make a claim of negligent hiring or retention; that there is no genuine dispute of material fact; and that the affidavits make clear that they are entitled to prevail as a matter of law.

Court holds: Because there is a genuine dispute about whether Cole was actually in the course and scope of his employment at the time of the incident, the trial court grant of summary judgment on the issue of respondeat superior liability is reversed. Whether the Hares have a claim against the defendants for negligent hiring and retention will depend in part on whether the Hares can show that Cole was in fact in the course and scope of his employment at the time of the collision. Accordingly, this Court reverses the judgment of the trial court and remands the case to the trial court for further proceedings.

James M. Smart, Jr., Judge

Paintiffs Denis and Michael Hare appeal the grant of a motion for summary judgment filed by defendants Domino's Pizza, Inc. and Cheeze & More, Inc. Appellants contend that the court erred in ruling that the defendants were entitled to judgment as a matter of law. We reverse and remand.

Factual Background

On June 15, 1998, a three-vehicle collision occurred on Highway 24 in Independence, Jackson County, when a vehicle driven by Michael Hare, waiting to make a left turn, was struck from behind by a vehicle driven by Paul Archambault, which in turn was struck from the rear by David Cole. Michael Hare was injured in the collision, and the car he was driving, owned by Denis Hare, was damaged. Thereafter, an action was filed by Michael and Denis Hare against Archambault and Cole, and against Cheeze & More, Inc., the employer of David Cole, and Domino's Pizza, Inc., the franchisor of Cheeze & More, Inc. A default judgment was taken against Cole. The trial court granted summary judgment as to both Cheeze & More, Inc. ("Cheeze") and Domino's Pizza, Inc. ("Domino's"). The claim against Archambault was dismissed without prejudice, and plaintiffs appeal the grant of summary judgment as to defendants Cheeze and Domino's (the "corporation defendants").

Standard of Review

Rule 74.04 provides for disposition of cases by summary judgment ruling when there is no genuine issue of material fact and the moving party has demonstrated that it is entitled to judgment in its favor as a matter of law. The review of a trial court grant of summary judgment presents purely issues of law; and because the trial court's judgment is based on the record submitted and on the law, the reviewing court does not defer to the trial court's order granting summary judgment. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is viewed in the light most favorable to the non-movant. Id. at 382.

[T]he non-movant need only show that there is a genuine dispute as to the facts underlying the movant's right to judgment. For purposes of Rule 74.04, a "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Where the "genuine issues" raised by the non-movant are merely argumentative, imaginary or frivolous, summary judgment is proper.

Id.

Discussion

In the joint motion for summary judgment of Cheeze and Domino's, the defendants asserted the following facts:

1. The automobile driven by David Cole was not owned by Cheeze or Domino's.

2. The collision occurred at 5:55 p.m.

3. David Cole was scheduled to start work at 6:00 p.m.

4. David Cole was not working for either Cheeze or Domino's at the time of the collision.

5. David Cole's pay did not begin until he arrived at the store at 10503 E. 24 Highway.

6. That defendants Cheeze and Domino's had no control over how defendant Cole traveled to and from work.

7. That Cole was not reimbursed for expenses incurred while traveling to and from work.

8. That Cole was not delivering pizzas at the time of the collision.

9. That Cole did not arrive for work until after 7:00 p.m. on June 15.

Attached to the motion and suggestions and referred to in the "Statement of Undisputed Facts" was the affidavit of Tony Kiley, the affidavit of David Cole, the Domino's Pizza, Inc. Standard Franchise Agreement, and the response of David Cole to Domino's request for admissions.

The affidavit of Tony Kiley states that: 1) he is the owner of the pizza store on 24 Highway owned by Cheeze and doing business under the trade name Domino's; 2) he is in charge of the day-to-day operations of the store; 3) David Cole did not "clock in" to work on the day of the accident until about 7:00 p.m.; 4) at the time of the accident there was no "delivery timeline" in effect.

The affidavit of David Cole stated, in pertinent part: 1) neither Cheeze nor Domino's owned the vehicle he was driving at the time of the collision; 2) he was not delivering pizza for Domino's or Cheeze at the time of the collision; 3) he was traveling from his residence to his work at the time of the collision; 4) he was required to "clock in" to work on his arrival; 5) on the day of the accident, he did not "clock in" until around 7:00 p.m.

In plaintiffs' response to the motion of the defendants for summary judgment, plaintiffs presented the affidavit of Mr. Hare. His affidavit stated that he was operating the car owned by his brother, which was struck from behind at about 5:55 in the evening on Monday, June 15, 1998. He describes getting out of his vehicle, speaking briefly with the driver of the truck behind him, and then approaching the third vehicle.

I saw the van driver leaning against it. He was wearing a Domino's shirt and cap. On top of the van was a large lighted Domino's sign. I walked to the van and its driver; I asked him, "WHAT are you doin'?" He said, "I'm delivering pizzas. I just snapped out." I glanced in the van and saw some Domino's pizza boxes on the front passenger seat. The Domino's shop at 10503 E. 24 Highway is about 90 feet west of [the nearby intersecting street] on the south side of the highway.

Also attached was an affidavit of Kevin Hare, the brother of Michael and Denis Hare. In his affidavit he stated that he is an automobile salesman. In his work he contacts people who "might need automobiles, including those who have lost cars in accidents, or incurred severe damage." He said that after learning of his brother's automobile collision, he included David Cole in his list of prospects. He contacted Mr. Cole, and Mr. Cole applied for the purchase of a used car, consented to a credit and employment check, and informed Hare that he was employed as a construction worker and also by Domino's. Mr. Hare said he learned Cole's driver's license was suspended, and his driving and credit records were poor. Mr. Hare's affidavit further states that in verifying Cole's employment, he called Domino's. He spoke with "Ron," who was identified as the night manager. Mr. Hare said he asked the usual questions, including the number of hours per week worked by Mr. Cole. He said the night manager, apparently reading from something, informed him of Cole's schedule as follows:

June 15, 1998 5:30 -- 9:30 p.m.

June 17, 1998 5:30 -- 9:30 p.m.

June 19, 1998 5:30 -- 9:30 p.m.

June 21, 1998 5:30 -- 9:30 p.m.

The reply of Cheeze to Hare's response included an affidavit executed by Ron Bivins, who represented that he is the night manager for Cheeze on 24 Highway. Mr. Bivins stated in the affidavit that David Cole was not working for Cheeze at the time of the collision on June 15, 1998. He also stated that Mr. Cole did not arrive for work until after 7:00 p.m. that evening. Also attached to the response was what purported to be itemized time records of various employees of Cheeze from Monday, June 15 through Sunday, June 21. The exhibit showed that Cole clocked in at about 7:10 p.m. and clocked out at about 8:20 p.m. on the 15th. The exhibit also showed Cole starting work just before 6:00 p.m. on the 17th, and starting after 6:30 p.m. on the 19th. This exhibit indicated Cole was paid for just a little more than an hour for his work on the 15th.²

Cheeze and Domino's moved for summary judgment on the basis that the plaintiffs could not show that there was any evidence that Cole was in the course and scope of his employment at the time of the time of the collision. They also contend that plaintiffs are unable to make a claim of negligent hiring or retention. They say there is no genuine dispute of material fact, and that the affidavits make clear that they are entitled to prevail as a matter of law.

We turn first to the issue of whether defendants' affidavits defeated the possibility of a respondeat superior relationship between Cole and the moving defendants. The general rule is that an employee, traveling to and from a place of employment, is on his or her own time and is not in the course of employment. Logan v. Phillips, 891 S.W.2d 542, 544 (Mo. App. 1995). In the...