DocketNumber: No. ED 105714
Citation Numbers: 548 S.W.3d 323
Filed Date: 3/6/2018
Status: Precedential
Modified Date: 10/19/2024
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.
James M. Dowd, Chief Judge *327This 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.
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 *328manslaughter. 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 ,
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. ,
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 ,
An employer generally is not liable for injuries caused by an employee's *329operation of a motor vehicle while traveling to or from work.
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.
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 *330to 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.
Pit Stop argues this evidence does not raise a genuine issue of material fact because, according to Pit Stop, the material statements from Officer Prosser's and Sandy Gilbert's affidavits would not have been admissible at trial. We disagree. Pit Stop asserts Sandy Gilbert's statements were not based on personal knowledge and therefore lacked foundation, but that is not true-in her affidavit, Gilbert noted her five years of experience working at Pit Stop and her familiarity with its and Huenefeld's pattern of work and practices. Pit Stop notes she did not say she was present at the bar on the night of October 23, 2013, but she did not testify about what happened that night, just about Pit Stop's and Huenefeld's standard operating procedure and ordinary conduct.
Turning to Officer Prosser's affidavit, Pit Stop contends the statement Officer Prosser averred Huenefeld made-that Huenefeld was taking the $2,004 from Pit Stop to the bank-was inadmissible hearsay, but we find it likely to be a prior inconsistent statement admissible to impeach Huenefeld on cross-examination, or even to serve as substantive evidence in the case. A party can impeach his or her own witness in a civil case with a prior inconsistent statement. Lindsay v. Mazzio's Corp. ,
If instead Huenefeld denied or could not recall making the statement, extrinsic evidence in the form of his prior inconsistent statement would be admissible to impeach him, since such a statement of a witness who is available for cross-examination may be used as substantive evidence in a civil trial. Rowe ,
We also reject Pit Stop's argument that Higgenbotham insufficiently pleaded her claim of respondeat superior liability because she did not specifically cite the dual purpose doctrine or allege Huenefeld undertook a dual purpose mission. The dual purpose doctrine is not a theory of recovery distinct from a respondeat superior theory, but is simply a method of proving such a theory by showing that the injury-causing employee was acting within the course and scope of his employment. See Tuttle ,
Point I is granted.
Point II: Negligent Employment Retention
To decide Point II, we must determine whether on this record there is a genuine issue of material fact that Pit Stop knew or should have known of Huenefeld's history and dangerous proclivity of driving while intoxicated and that, by retaining Huenefeld and providing him with free alcohol as a benefit of his employment, Pit Stop negligently contributed to the death of Decedent. We believe there is.
Negligence is "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Gibson v. Brewer ,
In bringing a claim for negligent retention, a plaintiff must show that an employee's misconduct not only caused injury but was consistent with a dangerous proclivity of the employee that has been exhibited by prior misconduct. Reed v. Kelly ,
Further, specifically regarding proximate cause, a plaintiff must show the negligence charged was the efficient cause that set in motion the chain of events leading up to the injury.
On this record, we find there is a genuine issue of material fact as to whether Pit Stop knew or should have known of Huenefeld's history and dangerous proclivity of driving while intoxicated and whether, by retaining Huenefeld and providing him with free alcohol as a benefit of his employment, Pit Stop negligently contributed to the death of Decedent. Higgenbotham produced certified copies of court docket sheets and an order of probation showing that in a 2006 case, Huenefeld pleaded guilty as a prior offender to the class A misdemeanor of driving while intoxicated *332in violation of § 577.010. Huenefeld's ex-wife, Lisa Huenefeld, the owner of Pit Stop, testified in a deposition that she had tried to police Huenefeld's drinking in the past, but that she had stopped being able to do so once she gave birth to their daughter and quit working at the bar at night. Lisa Huenefeld further testified that although Pit Stop had a company policy that an employee may not consume alcohol while working, Curtis Huenefeld, as manager, was placed in charge of enforcing the policy even though that required him to monitor himself. Huenefeld himself testified in a deposition that helping himself to alcoholic drinks from Pit Stop was a fringe benefit of his work there, that he frequently took advantage of this benefit, and that he did so on the night of October 23, 2013.
From this evidence, although reasonable jurors may have reached differing conclusions, one might have found that Pit Stop knew or should have known that Huenefeld had a dangerous proclivity to drive while intoxicated. And a reasonable juror might have found that Pit Stop's acts and omissions related to Huenefeld's drunk driving placed others at unreasonable risk of foreseeable harm and were the proximate cause of Decedent's death.
Regardless of whether Pit Stop actually knew of Huenefeld's history of driving while intoxicated, the aforementioned evidence would support a finding that Pit Stop should have known of his dangerous proclivity. A reasonable juror might have concluded that a simple background check would have made clear that Huenefeld had a history of driving while intoxicated. Such a juror might further have reasoned that Huenefeld's history made him a danger to others if allowed to manage a bar, to supervise his own drinking, and to help himself to drinks. Although one might justifiably note that it would have been awkward for Lisa Huenefeld to, as the owner of Pit Stop, run a background check on her husband at the time, a juror might reasonably have found that Pit Stop-as an employer putting Curtis Huenefeld in charge of a bar holding a Missouri liquor license-had a duty to investigate his background to determine whether he might pose special risks to the public if placed in a position of such responsibility. Lisa Huenefeld described her ex-husband as one whose drinking she had tried to "police." Accordingly, a reasonable juror might have found that Pit Stop should have known Curtis Huenefeld had a dangerous proclivity to drive while intoxicated.
Indeed, such a finding would be supported by this Court's holding in Gaines , where although the employer had no established business practice to determine dangerous proclivities of prospective or current employees,
Because the record also contains at least some evidence tending to show that though Huenefeld had a history of driving while *333intoxicated, Pit Stop hired him, made him manager, put him in charge of enforcing its alcohol consumption policy, and allowed him to help himself to alcoholic drinks as a fringe benefit, a reasonable juror might further have concluded that Pit Stop acted negligently in retaining Huenefeld and proximately caused Decedent's death. In other words, a juror might reasonably have found it to be foreseeable from Pit Stop's acts and omissions that Huenefeld would drive away from work intoxicated and strike a pedestrian. This would meet the definition of negligence under Missouri law articulated in Gibson , cited above, and would satisfy the elements of a claim of negligent retention as set forth in Gaines .
Pit Stop contends proximate cause cannot be demonstrated because there is no evidence in the record tending to show that Pit Stop was responsible for putting Huenefeld in contact with Decedent, or that Huenefeld in the course of his employment drove while intoxicated. But these contentions miss the point. It simply does not matter for purposes of this claim whether Pit Stop put Huenefeld in contact with Decedent, and-as stated above, citing Dibrill -a claim of negligent retention distinctly addresses whether the employer's negligence contributes to creating a risk of harm outside the scope of the subject employee's work.
Nor is this, as Pit Stop contends, a "social host" case. While mere social hosts, as furnishers of alcohol, are not held liable for injuries inflicted by intoxicated persons, see, e.g., McClure v. McIntosh ,
Pit Stop also raises concerns about the admissibility of evidence essential to support Higgenbotham's claim of negligent retention. Pit Stop argues that there is no support in the record for concluding that on November 28, 2006, Huenefeld pleaded guilty to driving while intoxicated. Pit Stop claims that the documents cited to support that assertion were insufficient for purposes of Rule 74.04 to establish that factual assertion. But Pit Stop does not dispute that these documents were properly authenticated by certification, meeting the requirements of § 490.130 (providing that "[c]opies from the record of proceedings of any court of this state, attested by the clerk thereof, with the seal of the court annexed ... shall be received as evidence of the acts or proceedings of such court in any court of this state"). Moreover, the docket sheets clearly indicate that on November 28, 2006, Huenefeld pleaded guilty to driving while intoxicated. Pit Stop observes that Higgenbotham did not provide the court's judgment in the 2006 case, but Pit Stop fails to cite any authority holding that only a judgment of conviction may support a finding that, prior to the October 23, 2013 incident, Huenefeld already had at least one conviction for driving while intoxicated, about which Pit Stop knew or should have known.
Point II is granted.
Conclusion
For the reasons stated above, we reverse the judgment of the trial court and *334remand for trial on Higgenbotham's claims of respondeat superior liability and negligent retention.
Lawrence E. Mooney, J., and Stanley J. Wallach, Sp. J., concur.
Lisa Huenefeld and Curtis Huenefeld separated in November 2013 and divorced on August 27, 2015.
For doctrinal reasons, the employee's purposes in making an everyday commute are deemed to be exclusively personal, even if that is not literally accurate. As the Western District's opinion in Tran v. Dave's Elec. Co. Inc. ,
Cases addressing the dual purpose doctrine in the context of the Workers' Compensation Act are "instructive in understanding the concept of dual purpose." Tuttle ,