Kuhn v. Budget Rent-A-Car of Missouri, Inc., RENT-A-CAR

• Decision Date: 29 March 1994
• Docket Number: No. WD,RENT-A-CAR,WD
• Citation: 876 S.W.2d 668
• Parties: Mary Lou KUHN, Jeffrey Daniel Kuhn, and Daniel Patrick Kuhn, Appellants, v. BUDGETOF MISSOURI, INC., Respondent. 47721.
• Court: Missouri Court of Appeals

Page 668

876 S.W.2d 668

Mary Lou KUHN, Jeffrey Daniel Kuhn, and Daniel Patrick Kuhn, Appellants, v. BUDGET RENT-A-CAR OF MISSOURI, INC., Respondent.

No. WD 47721.

Missouri Court of Appeals,

Western District.

March 29, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 3, 1994.

Application to Transfer Denied June 21, 1994.

Douglas M. Greenwald, Frank D. Manghini, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for appellants.

J.C. Hambrick Jr., David B. Sexton, Schulz, Bender, Maher & Blair, Kansas City, KS, for respondent.

Before KENNEDY, P.J., and ULRICH and SPINDEN, JJ.

ULRICH, Judge.

Mary Lou Kuhn, Jeffrey Daniel Kuhn, and Daniel Patrick Kuhn appeal the summary judgment entered for Budget Rent-A-Car of Missouri, Inc., (Budget) in a wrongful death action in which appellants alleged that Budget negligently allowed or failed to prevent an "off duty" intoxicated Budget employee from driving a vehicle owned and/or operated by Budget off premises resulting in the death of Danny L. Kuhn, Mary Lou Kuhn's husband and Jeffrey and Daniel Kuhn's father. The appellants contend that the court erred in granting summary judgment because genuine issues of material fact exist as to whether Budget acted negligently in allowing or not preventing an intoxicated off-duty employee to operate a Budget shuttle bus on public highways, thereby causing the death of Danny L. Kuhn, or whether Budget expressly or impliedly permitted or entrusted control of the vehicle to the intoxicated off-duty employee. The judgment is reversed, the case is remanded for further proceedings consistent with this opinion.

Facts

Testimonial evidence in depositions and documents obtained during discovery disclose that Kent Wright, an employee of Budget but not assigned to the Budget KCI Airport facility, was permitted onto the KCI facility by Michael Jones, an on duty Budget employee, the morning of January 1, 1991. Budget company rules require that the Budget airport rental facility be locked and the facility be closed to the public between 1:00 a.m. and 5:00 a.m. Mr. Jones unlocked the gate of the facility to permit Mr. Wright's entrance onto the premises.

Mr. Jones was employed by Budget as a service agent. His duties included providing night security at the Budget airport facility. His instructions included not permitting anyone onto the premises after the facility was locked at 1:00 a.m. until it opened again at 5:00 a.m. each morning. Mr. Jones was in charge of the Budget airport facility after counter representatives departed the location at the conclusion of their work shift. When Mr. Jones permitted Mr. Wright to enter the facility the morning of January 1, 1991, he was the only Budget employee on duty.

Mr. Wright arrived at the Budget Airport facility between 2:30 a.m. and 3:00 a.m. the morning of January 1, 1991. Mr. Jones knew Mr. Wright because Mr. Wright was also employed by Budget but at a different Budget facility. Mr. Wright was Mr. Jones' predecessor as the night agent/security person at the KCI Budget facility and while employed at the facility, he had been a shuttle bus driver for a time. An eight- to ten-foot fence surrounded the facility, and access was effectively limited to persons entering the facility through the gate unlocked by Mr Jones. Mr. Wright was not authorized to be on the premises.

After the gate was unlocked, Mr. Wright drove his vehicle onto the Budget facility and parked it in the employees' parking area. Mr. Wright informed Mr. Jones that he had been drinking intoxicants much of the night. Mr. Jones smelled the odor of alcohol on Mr. Wright's breath. Both men began drinking alcoholic beverages on the Budget premises, and Mr. Jones observed Mr. Wright stumbling and weaving while walking. Mr. Jones became so intoxicated that he was unable to conclude his duties and passed into alcoholic induced unconsciousness while seated in one of the Budget vehicles located on the Budget facility.

At approximately 4:50 a.m. the morning of January 1, 1991, Lyanna Osborne, manager of the Budget facility, arrived to commence her responsibilities for the day. She discovered Mr. Jones asleep in a Budget vehicle that had been parked near the entrance gate with its lights on. She also observed Mr. Wright stumbling, barely able to walk. She concluded that both men were intoxicated. She claims to have told both men that they were fired and to leave the facility. However, Mr. Jones testified during his deposition that Ms. Osborne told him he was fired after she was informed of the vehicular accident, either before she went to the accident scene, or after she returned from the accident scene where Danny L. Kuhn had been killed by the collision of the Budget shuttle operated by Mr. Wright and his vehicle. ¹

After Ms. Osborne observed Mr. Jones and Mr. Wright on the Budget facility, neither of the men departed the facility. They continued walking in and out of the Budget office. Ms. Osborne did not summon law enforcement officers or other persons employed by Budget ² to remove Mr. Jones and Mr. Wright. Law Enforcement protection and services for the airport are provided by the Kansas City, Missouri, aviation safety department, and the Budget facility is located on airport property. Airport security personnel were capable of responding to a phone call seeking their presence at the Budget facility within approximately two minutes. The Aviation Safety Department had previously received and responded to requests for assistance from rental car agencies located on airport property regarding intoxicated individuals. The airport safety department then had four officers (and a dispatcher) on duty who could have responded to a request for assistance from the Budget facility the morning of January 1, 1991.

Ms. Osborne, aware that Mr. Jones had consumed intoxicants and was intoxicated, directed him to remain at the facility and to assist her. At approximately 5:10 a.m., she asked Mr. Jones to stay at the facility to assist her until the scheduled Budget shuttle bus driver appeared for work. She directed Mr. Jones to drive a customer from the Budget facility to the airport. A customer later telephoned the Budget facility and complained that Mr. Jones was "too drunk to be driving." Mr. Jones testified during his deposition that he was directed to drive to the airport from the Budget facility at least twice the morning of January 1, 1991, to transport customers. Additionally, he checked in vehicles returned to Budget by customers and parked them while he was in an intoxicated state.

After Ms. Osborne received the telephone complaint about Mr. Jones driving while intoxicated, she drove another customer to the airport and left Mr. Jones in charge of the Budget facility. When she departed the facility to drive the customer to the airport, she observed both Mr. Jones and Mr. Wright in intoxicated states and present on the Budget property. Before departing the premises, Ms. Osborne did not lock the gate, remove the keys from the ignitions of other Budget vehicles and shuttle busses on the lot, or otherwise secure the vehicles. Neither did Ms. Osborne telephone a supervisor, airport security, police, or anyone else to seek assistance or to remove Mr. Jones and Mr. Wright from the facility.

Ms. Osborne returned to the Budget facility after transporting the customer to the airport. She observed Mr. Jones at the counter. She observed Mr. Wright's vehicle still within the Budget compound, but she did not observe him.

Ms. Osborne then observed the Budget shuttle bus departing the Budget facility, and she claims that she assumed the scheduled shuttle driver had arrived and was driving the bus. Approximately one minute after the bus departed the premises, Ms. Osborne received a telephone call from the scheduled bus driver who advised her that he would not be reporting for work that morning.

William D. Wilson, Jr., an airport security officer, testified during his deposition that he spoke with Ms. Osborne the morning of January 1, 1991, and she told him that she knew Mr. Wright was driving the Budget bus when she observed the Budget shuttle bus leaving the facility. Mr. Wilson also testified that Ms. Osborne told him she knew Mr. Wright was intoxicated when she observed the bus departing the facility. Mr. Wilson stated that when he asked Ms. Osborne why she had not telephoned airport security for assistance when she observed Mr. Wright driving the bus from the facility, Ms. Osborne stated that she had not wanted to cause trouble for Mr. Wright, knowing that he was intoxicated and believing that he would return the bus.

Cecilia Roe is also an airport security officer. Ms. Roe testified in her deposition that Ms. Osborne spoke to her by telephone the morning of January 1, 1991, and informed her of the accident. Ms. Roe stated that Ms. Osborne related "that she was aware that there was a Budget bus out; that she had an intoxicated driver, Kent Wright, take off in the bus." Ms. Roe testified that Ms. Osborne told her she saw Mr. Wright depart the parking lot and that she hoped he would return and not get into trouble. Ms. Roe stated Ms. Osborne acknowledged to her that she had not called airport security to inform that Mr. Wright was intoxicated and driving a Budget vehicle off the Budget facility.

Shortly before 6:00 a.m., January 1, 1991, Mr. Wright drove the Budget bus from the Budget airport facility onto the Mexico City Avenue exit ramp of Interstate I-29 and collided with the vehicle driven by Danny L. Kuhn in a head-on collision. The impact was so severe that it knocked the vehicle driven by Mr. Kuhn off the ramp and down a grass embankment. Mr. Kuhn died as a result of the injuries sustained in the collision with the Budget bus. The Aviation Safety Department was notified of the accident at approximately 5:56 a.m. Ms. Osborne was informed of the fatal accident approximately thirty minutes following the collision.

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