Higgenbotham v. Pit Stop Bar & Grill, LLC, ED 105714

• Citation: 548 S.W.3d 323
• Decision Date: 06 March 2018
• Docket Number: No. ED 105714,ED 105714
• Parties: Christy E. HIGGENBOTHAM, Appellant, v. PIT STOP BAR AND GRILL, LLC, Respondent.
• Court: Court of Appeal of Missouri (US)

548 S.W.3d 323

Christy E. HIGGENBOTHAM, Appellant,

v.PIT STOP BAR AND GRILL, LLC, Respondent.

No. ED 105714

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

Filed: March 6, 2018

Rehearing and/or Transfer to Supreme Court Denied April 17, 2018

Application for Transfer Denied July 3, 2018

FOR APPELLANT: Kirk R. Presley, 4801 Main Street, Suite 375, Kansas City, Missouri 64116, Bret A. Sumner, 7777 Bonhomme, Suite 2100, Clayton, Missouri 63105.

FOR RESPONDENT: Martin J. Buckley, Daniel J. Sullivan, Graham J. Spence, 800 Market Street, Suite 2900, St. Louis, Missouri 63101.

OPINION

James M. Dowd, Chief JudgeThis wrongful death lawsuit arises out of a drunken-driving incident in which Curtis Huenefeld, 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 Huenefeld 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) Huenefeld 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 Huenefeld 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 Huenefeld, the owner of Pit Stop, on June 12, 2007.¹ From 2009 to 2014, Curtis Huenefeld worked for Pit Stop as a manager and cook. The evening of October 23, 2013, Huenefeld 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. Huenefeld remained at Pit Stop that night until after the bar closed and left around 1:30 a.m. on October 24, 2013. When Huenefeld 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. Huenefeld 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, Huenefeld was interviewed by an investigating police officer, Brandon Prosser. Later that day, Huenefeld 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, Huenefeld pleaded guilty to this offense. He is currently an inmate of the Missouri Department of Collections.

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. Allee’s Sports Bar & Grill , 260 S.W.3d 869, 872–73 (Mo. App. W.D. 2008) ; see also Cluck 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. Cluck , 367 S.W.3d at 29, So long as the act is fairly and naturally incident to the employer’s business, although mistakenly or ill-advisedly 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 simultaneous personal purpose. Id. For the dual purpose doctrine to apply, the travel must have been necessary even in the absence of a personal purpose. Id.

The dual purpose doctrine does not require that the particular employee had to take the business trip, just that someone had to make the trip to carry out the business mission. Id. at 519. If the trip ultimately had to be made, and if the employer got the necessary item of travel accomplished by combining it with the employee’s personal trip, it was a concurrent cause of the trip. Id. The business and personal motives are not weighed and it does not matter which was the dominant motive. Id. Nor does it preclude application of the dual purpose doctrine that the employee’s trip included going home before completing the employer’s business. Downs v. Durbin Corp. , 416 S.W.2d 242 (Mo. App. 1967) (finding dual purpose where employee loaded lumber from work site into personal vehicle to take home and then deliver to employer’s premises the next morning, but got in an automobile accident on the way home), Corp v. Joplin Cement Co. , 337 S.W.2d 252 (Mo. banc 1960) (finding dual purpose where employee traveled to company plant to pick up his paycheck and building materials to take to the employer’s work site the next day, but died in an automobile accident on the way home from the plant after cashing his paycheck and stopping to drink at a bar).³

Here, we find the record raises a genuine issue of material fact regarding whether Huenefeld had a work purpose—i.e., was acting within the course and scope of his employment—when he drove away from Pit Stop on the evening of October 23, 2013 and struck Decedent with his truck. Officer Brandon Prosser’s affidavit and Huenefeld’s booking report for the night in question indicate he was carrying $2,004 in cash at the time of the accident. Officer Prosser stated in his affidavit that when he spoke with Huenefeld at the scene of the accident, Huenefeld said the money was from Pit Stop and he was taking it to the bank. Sandy Gilbert, a fellow Pit Stop employee at the time of the accident, stated in her affidavit that she was familiar with the pattern and practices of Huenefeld and Pit Stop, and that at the end of the day, Huenefeld would take the money from the cash register to deposit at a bank. This evidence is enough on its own to inject a genuine issue of material fact into this case as to Higgenbotham’s claim of respondeat superior liability—a reasonable juror presented with this evidence could find Huenefeld was carrying out a necessary mission for Pit Stop, delivering proceeds to the bank, and thus was acting within the scope and course of his employment when he struck Decedent.

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