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Mueller v. Brannigan Brothers Restaurants and Taverns LLC

Court of Appeals of Michigan

April 3, 2018

HELEN KAYE MUELLER, Personal Representative of the ESTATE OF TRAVIS LEE PETERSON, Plaintiff-Appellant,

          Ingham Circuit Court LC No. 13-001379-NO

          Before: Ronayne Krause, P.J., and Fort Hood and O'Brien, JJ.

          PER CURIAM.

         Plaintiff Helen Kaye Mueller, the personal representative for the Estate of Travis Peterson, appeals by right after a jury trial and entry of a verdict partially in her favor. This matter arises out of the wrongful death of Peterson, who was killed after patronizing defendant Brannigan Brothers bar. After being ejected from the bar, Peterson was chased and physically beaten by bouncers who were then presently or previously employed by the bar. Notwithstanding the judgment partially in her favor, plaintiff appeals by right two evidentiary decisions and two partial grants of summary disposition. We affirm.

         In broad strokes, with the exception of a few critical details, the facts are simple, undisputed, and tragic. Peterson was a business invitee, or more colloquially a patron, of the restaurant or bar owned and operated by Brannigan Brothers Restaurants and Taverns LLC (Brannigan) in downtown Lansing, on January 1, 2012, in the early hours of the morning at approximately 2:00 a.m. Some manner of dispute occurred, and Peterson was asked to leave the premises. Peterson did so, and thereafter the individual defendants pursued Peterson and attacked him, inflicting injuries that caused his death. None of the above facts are seriously contested at this time, nor is it contested that the individual defendants had some kind of employment history with the bar. Rather, the only factual issues are whether any of the individual defendants were actually working for the bar at the time, were acting within the scope of their employment, or were the actual cause of Peterson's death. Brannigan was granted summary disposition on the grounds that all individual defendants were "off the clock" in one way or another.

         Suttle was defaulted, Kanaveh settled partway through trial, the jury found McClain and Kanaveh both to have not been negligent, and the jury found Smith to have been negligent but not a proximate cause of Peterson's death. The jury found Peterson's own negligence to have been 20% responsible for his death and Suttle's negligence to have been 80% responsible for Peterson's death. Accordingly, the trial court entered judgment in favor of plaintiff and against Suttle, and a judgment of no cause of action against Smith and McClain.[2]

         A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Id. at 119. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120.

         "The decision whether to admit evidence falls within a trial court's discretion and will be reversed only when there is an abuse of that discretion." People v Duncan, 494 Mich. 713, 722; 835 N.W.2d 399 (2013). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Id. at 722-723. However, preliminary questions of law, including the interpretation and application of statutes and legal doctrines, are reviewed de novo, and the trial court necessarily commits an abuse of discretion if it makes an incorrect legal determination. Id. at 723; Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008). This Court also "reviews a trial court's rulings concerning the qualifications of proposed expert witnesses to testify for an abuse of discretion." Woodard v Custer, 476 Mich. 545, 557; 719 N.W.2d 842 (2006).

         Plaintiff first argues that the trial court erred in granting summary disposition in favor of Brannigan. We note that plaintiff alleged several counts against Brannigan, and the parties fail to clearly distinguish the counts alleging vicarious liability from the counts alleging that Brannigan committed torts in its own right. In particular, plaintiff alleged that Brannigan was negligent in its hiring, retention, supervision, and training of its employees. This assertion does superficially resemble vicarious liability, insofar as the conduct of the employees is relevant. However, plaintiff correctly points out that the negligent hiring, retaining, training, or supervising of an employee can be a direct tort committed by the employer itself, not matter of vicarious liability. Hersh v Kentfield Builders, Inc, 385 Mich. 410, 412-413; 189 N.W.2d 286 (1971). We will address the distinct issues separately.

         Regarding vicarious liability, plaintiff fairly summarizes the legal principles: broadly, and in relevant part, an employer may be held liable for the tortious conduct of an employee so long as that conduct was "committed in the course and within the scope of the employee's employment, " but not if the act was outside the employee's authority or committed for the employee's own personal purposes. Bryant v Brannen, 180 Mich.App. 87, 98; 446 N.W.2d 847 (1989). "While the issue of whether the employee was acting within the scope of his employment is generally for the trier of fact, the issue may be decided as a matter of law where it is clear that the employee was acting to accomplish some purpose of his own." Id.

         Plaintiff accurately states that Suttle testified that he was working on the night of Peterson's beating. Critically, however, that is the only evidence plaintiff submits in support of Suttle having been an employee; on the very same page of his deposition, Suttle also testified that as of one minute after midnight, he was no longer an employee. Notably, he had not merely quit for the night, but in fact had been fired. He testified that by the time of the incident, he had left, and he returned to the bar only to retrieve his payment for the hours he had worked earlier. Plaintiff's argument that the trial court erred in finding no genuine question of fact that Suttle was not employed on the night of the incident is technically correct but essentially pettifoggery and substantively immaterial: even though he had been employed at some point on that evening, Suttle was no longer employed at the time he participated in chasing and beating Peterson. Consequently, the trial court correctly held that at the relevant time, Suttle was not in fact employed by Brannigan, so Brannigan could not be vicariously liable for Suttle's tortious misconduct. Brannigan argued in the trial court that there was no dispute that Kanaveh was not working on the night of the incident at all, and all of the testimony we have found supports that assertion. Plaintiff has not cited any evidence or advanced any argument to the contrary. Consequently, Brannigan could not be vicariously liable for any tortious misconduct engaged in by Kanaveh.

         Brannigan concedes that Smith and McClain were employed and working at the time of the incident. Instead, Brannigan argues that they acted completely outside the scope of their employment by chasing an ejected patron down the street and beating him savagely. Plaintiff points out that Smith testified at his deposition that he had been a participant in the pursuit down the street strictly because he was attempting to protect McClain and break up the fight, and that he was therefore acting on behalf of Brannigan and within the scope of his employment, which he believed specifically entailed protecting employees. However, it is critical that Smith's testimony was based his version of events, which was that Peterson had assaulted McClain and Smith was attempting to protect McClain or break up a fight, and he only punched Peterson because Peterson attacked him and he was unable to retreat. Consequently, this testimony does not support plaintiff's argument to the effect that Smith believed pursuing and assaulting Peterson would be conduct within the scope of his employment. Rather, Smith's testimony that he was acting within the scope of his employment is clearly dependent upon his interpretation of what occurred, which differs critically from plaintiff's interpretation of what occurred. Essentially, it is incompatibly conditional.

         Otherwise, plaintiff makes no argument that we can find to the effect that chasing an ejected patron down the street, well off Brannigan's premises, for the purpose of committing a battery was authorized, was remotely similar to any authorized act, or was for any purpose whatsoever that could reasonably be believed to benefit Brannigan. The trial court's holding that Brannigan could not be held vicariously liable for the misconduct of the individual defendants was the only reasonable conclusion to draw on the evidence in this matter. Additionally, even if the trial court had erred in finding that Brannigan had no vicarious liability for the conduct of Smith and McClain, the jury's findings of no negligence as to McClain and no proximate cause as to Smith would render that finding irrelevant and harmless in any event.

         However, neither the employees' present employment status nor their departure from the scope of their employment disposes of plaintiff's claims of negligent hiring, retention, training, or supervision. Furthermore, the fact that two of the individual defendants were not technically working for Brannigan at the time of the incident is also not dispositive: the gravamen of negligent hiring or retention is that the employer bears some responsibility for bringing an employee into contact with a member of the public despite knowledge that doing so was likely to end poorly. Hersh, 385 Mich. at 412-413. In other words, it is not a tort dependent upon vicarious liability at all, but rather direct liability. Consequently, the fact that Brannigan allegedly should have known that the bouncers ...

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