Phelps v. Bross

• Decision Date: 05 February 2002
• Docket Number: No. ED 79200.,ED 79200.
• Citation: Phelps v. Bross, 73 S.W.3d 651 (Mo. App. 2002)
• Parties: Catherine PHELPS f/k/a Catherine J. Gordon, Appellant, v. Jeff BROSS, Richard A. Riesenbeck, and Golden Eagle Distributing Co., a Missouri Corporation, Respondents, and Greg Church, Defendant.
• Court: Missouri Court of Appeals

73 S.W.3d 651

Catherine PHELPS f/k/a Catherine J. Gordon, Appellant, v. Jeff BROSS, Richard A. Riesenbeck, and Golden Eagle Distributing Co., a Missouri Corporation, Respondents, and Greg Church, Defendant.

No. ED 79200.

Missouri Court of Appeals, Eastern District, Northern Division.

February 5, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 17, 2002.

Application for Transfer Denied May 28, 2002.

John C. Garavaglia, Robert A. Strauss, St. Louis, MO, David H. Ash, Bowling Green, MO, for appellant.

Brian E. McGovern, Katherine S. Walsh (Bross), Chesterfield, MO, Mark S. Wasinger (Golden/Riesenbeck), Hannibal, MO, David C. Mobley (Church), New London, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Catherine Phelps ("Phelps") appeals from the trial court's grant of summary judgment in favor of Jeff Bross ("Bross"), Richard Riesenbeck ("Riesenbeck"), and Golden Eagle Distributing Co. ("Golden Eagle"). Phelps brought a four-count Petition against Bross and Greg Church ("Church") for assault, battery, and false imprisonment and against Riesenbeck and Golden Eagle for negligently failing to provide transportation and security. Phelps claims the trial court erred in granting summary judgment for Bross because the evidence shows genuine issues of material fact as to whether an assault occurred and whether Bross and Church were jointly and severally liable for battery. Phelps further claims the trial court erred in granting summary judgment for Riesenbeck and Golden Eagle because the evidence presents genuine issues of material fact as to whether Riensenbeck and Golden Eagle assumed a duty to provide security and transportation for Phelps and failure to do so resulted in a breach of that duty. We affirm in part and reverse and remand in part.

Phelps's claims arose out of a golf tournament in Canton, Missouri where she was working for Golden Eagle as a "Budweiser Girl." We review the record in light most favorable to Phelps. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record shows that Riesenbeck, president of Golden Eagle, encouraged Phelps and her sister, Sharon Sherman, to become Budweiser Girls for Golden Eagle. Riesenbeck informed Phelps of the rules, practices, and procedures for the Budweiser Girls. He explained that no husbands or boyfriends were to attend the events with the women, and he emphasized the women were required to go to and from the events on transportation provided by Golden Eagle. Riesenbeck also explained that someone from Golden Eagle would be at the events to insure that the rules and procedures were being followed. Riesenbeck told Phelps that these employees would be present to make sure guests did not harass the women and to make sure things did not get out of hand. Phelps signed an independent contract agreement.

Prior to the golf tournament, Phelps attended two events as a Budweiser Girl. At both events she was required to ride in transportation provided by Golden Eagle, and at least two Golden Eagle employees were present at all times to watch over the event and the women.

In early May 1996, Phelps was contacted by Riesenbeck and told that the next event was a golf tournament at the River Valley Golf Course in Canton, Missouri. Riesenbeck directed Phelps to meet him at the Holiday Inn in Hannibal where there would be a bus to take the women to and from the tournament.

On the morning of the tournament, Phelps arrived at the Holiday Inn and met Riesenbeck, who was in charge of the group of Budweiser Girls from Hannibal. Once the tournament began, Phelps was assigned to accompany a group of men, including Church and Bross, as a scorekeeper. On the ride to and during the tournament, complimentary alcoholic beverages were served by Golden Eagle, without restriction and free of charge. Phelps testified that she had several drinks during the event.

When the tournament was complete, Phelps claims she returned to the bus for the purpose of going back to the Hannibal. However, Riesenbeck told her to return to the golf complex because there was an award ceremony. During the ceremony, Bross and Church asked Phelps to attend a party with them after the event. Phelps claims that she declined and told them that she was required to ride the bus back to the hotel. Bross and Church then spoke with Riesenbeck to get his permission for Phelps to go with them. Phelps alleges that Riesenbeck then approached her and told her it would be fine for her to ride with Bross and Church back to Hannibal. Phelps claims that she told Riesenbeck that she was not comfortable going with the men, and when she tried to enter Golden Eagle's bus, Riesenbeck threw her duffel bag from the bus and instructed her to ride with Bross and Church. Shortly thereafter, the bus left.

While Phelps was riding with Bross and Church back to Hannibal, she noticed that their truck was entering a residential area in Palmyra, Missouri, so Phelps asked the men where they were going. Bross told her that he had to check on his swimming pool and that the stop would be short. When they arrived at Bross's home, he asked Phelps to come to the backyard and see his swimming pool. Upon entering the residence, Church handed Phelps an open beer. Phelps alleges that immediately after drinking a small portion of the beer she became unconscious. Upon regaining consciousness several hours later, Phelps noticed she was in a different room than she had been immediately before becoming unconscious. Her clothing had been removed and she was lying naked in bed with Bross lying next to her fully dressed and awake. Phelps testified in her deposition that upon awaking she became terrified and ran into the living room where she pleaded with Church to take her home. When Church refused, Phelps ran out the front door naked and across the street to Mary Griffin's home. Griffin provided her a blanket and contacted the Palmyra Police. Phelps told Sergeant Hester that she thought she had been raped. Phelps was transported to the emergency room where she was examined, treated, and released. The treating physician diagnosed her with "sexual assault."

Church admitted to having sexual intercourse with Phelps while at Bross's residence but contended that Phelps had consented. Phelps claims that at no time did she consent to any sexual activity with Church or anyone else. Phelps filed suit against Church, Bross, Riesenbeck, and Golden Eagle. Each Defendant filed motions for summary judgment. The court granted summary judgment in favor of Bross, Reisenbeck, and Golden Eagle. Church's motion for summary judgment was denied. Phelps now appeals¹.

Summary judgment is granted only in situations in which the movant can establish that no genuine issue of material fact exists and that movant is entitled to judgment as a matter of law. Rule 74.04. This procedure has long been regarded as "an extreme and drastic remedy and great care should be exercised in utilizing the procedure." Cooper v. Finke, 376 S.W.2d 225, 229 (Mo.1964). At the foundation of such skepticism toward summary judgment is the feeling that the procedure "borders on denial of due process in that it denies the opposing party his day in court." Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App. E.D.1985).

When considering whether movant can establish that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, our review is essentially de novo as the propriety of summary judgment is purely a question of law. ITT Commercial Fin. Corp., 854 S.W.2d at 376. We review the record in the light most favorable to the party against whom the judgment was entered, and facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the nonmoving party's response to the summary judgment motion. Id.

Phelps claims in her first point that the trial court erred in granting summary judgment in favor of Bross on her claim of assault because the evidence showed genuine issues of material fact as to whether an assault had occurred. We agree.

Assault is defined as "any unlawful offer or attempt to injure another with the apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril." Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo.App. E.D.1998). Bross argues that because Phelps cannot show that he made any sexual contact with her she cannot prove an assault took place. While in Missouri cases of assault unaccompanied by the physical contact of battery are rare, it is not impossible to prove assault without physical contact. An example of one such case is Hickey v. Welch, 91 Mo.App. 4, 14, 1901 WL 1547 (1901) where defendant was found to have committed an assault by pointing a pistol at the plaintiff and threatening to shoot her, but did not fire the weapon. Putting the plaintiff in fear of present violence "an inchoate battery" was found to be actionable. Id. at 5.

Missouri Approved Instruction for assault also follows the concept that assault is an attempted or inchoate battery. M.A.I. 23.01 (1981). Under M.A.I. 23.01, assault requires the following elements to be proven: (1) defendant's intent to cause bodily harm or offensive contact, or apprehension of either; (2) conduct of the defendant indicating such intent, and (3) apprehension of bodily harm or offensive contact on the part of the plaintiff caused by defendant's conduct.

Reviewing the record in the light most favorable to Phelps, we find the circumstances demonstrate a genuine issue of material fact as to whether Bross intended to cause Phelps offensive contact or bodily harm or apprehension of either, the first element needed to prove assault. The record demonstrates that Bross did in fact crawl into bed with Phelps, as she lay unconscious and undressed. The fact that Bross denies having such intent is not conclusive, as intent...