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2011-UP-345 - Zimmerman v. Sweigert

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Sandra Zimmerman, Appellant,

v.

Danny K. Sweigert, Steven Brandon Wood, and MyrBeach Mortgage, LLC d/b/a Days Inn at Waccamaw, Defendants,

Of Whom MyrBeach Mortgage, LLC d/b/a Days Inn at Waccamaw is, Respondent.


Appeal From Horry County
Steven H. John, Circuit Court Judge


Unpublished Opinion No.  2011-UP-345 
Submitted April 1, 2011 – Filed June 29, 2011


AFFIRMED


Mark D. Chappell and W. Hugh McAgnus, Jr., both of Columbia, for Appellant.

Jackson H. Daniel, III, and R. Michael Ethridge, both of Charleston, for Respondent.

PER CURIAM:  Sandra Zimmerman appeals the trial court's order granting summary judgment in favor of MyrBeach Mortgage, LLC, D/B/A Days Inn at Waccamaw, (MyrBeach) on Zimmerman's negligence claim in which the court found MyrBeach was not vicariously liable for the acts of Danny Sweigert.  We affirm.[1] 

FACTS/PROCEDURAL HISTORY

On June 11, 2006, Zimmerman was injured in an automobile accident.  The car in which Zimmerman was the passenger was driven by Sweigert.  At the time of the accident, Sweigert was serving as the manager of the Days Inn while trying to find a purchaser for the hotel.  Myrbeach's predecessor had hired Sweigert in 2003 to oversee the renovation and reconstruction of the Days Inn, reopen the hotel, and ultimately sell the facility.  Sweigert lived in the hotel and was on-call every day.  However, he did take time off.  Zimmerman was also living at the hotel at the time of the accident. 

The accident occurred on a Sunday afternoon.  Sweigert stated he was taking the day off and was sitting by the pool doing a crossword puzzle when Zimmerman and another extended stay guest asked him to drive them to K-Mart.  The accident happened on the way to the store. 

Zimmerman brought this action against Sweigert, the other driver involved in the accident, and MyrBeach.  She asserted MyrBeach was liable under the doctrines of respondeat superior, principal/agent, and master/servant.  MyrBeach moved for summary judgment, asserting Sweigert was not acting within the scope of his employment at the time of the accident, and he was an independent contractor rather than employee of MyrBeach.  The trial court granted the motion, finding "there is absolutely no evidence that Sweigert was acting within the scope of employment or doing any activity related to the business of MyrBeach at the time of the accident."  This appeal followed. 

STANDARD OF REVIEW

In reviewing the grant of summary judgment, the appellate court applies the same standard that governs the trial court under Rule 56(c), SCRCP.  Nexsen v. Haddock, 353 S.C. 74, 77, 576 S.E.2d 183, 185 (Ct. App. 2002).  Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  Rule 56(c), SCRCP.  "In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party."  Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000).  "[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment."  Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). 

LAW/ANALYSIS

Zimmerman argues the trial court erred in granting summary judgment because there was a genuine issue of material fact whether Sweigert was acting within the course and scope of his employment when the accident occurred. 

The doctrine of respondeat superior rests upon the relation of master and servant.  A plaintiff seeking recovery from the master for injuries must establish that the relationship existed at the time of the injuries, and also that the servant was then about his master's business and acting within the scope of his employment.  An act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and in furtherance of the master's business.  These general principles govern in determining whether an employer is liable for the acts of his servant.  

The act of a servant done to effect some independent purpose of his own and not with reference to the service in which he is employed, or while he is acting as his own master for the time being, is not within the scope of his employment so as to render the master liable therefor.  Under these circumstances the servant alone is liable for the injuries inflicted.  If a servant steps aside from the master's business for some purpose wholly disconnected with his employment, the relation of master and servant is temporarily suspended; this is so no matter how short the time, and the master is not liable for his acts during such time.

Armstrong v. Food Lion, Inc., 371 S.C. 271, 276, 639 S.E.2d 50, 52-53 (2006) (citations omitted).

Zimmerman relies on Grant v. Grant Textiles, 372 S.C. 196, 641 S.E.2d 869 (2007), a workers' compensation case in which the supreme court held under certain circumstances, injuries arising from acts outside the scope of an employee's regular duties may be compensable.  These circumstances are:

(1) acts benefiting co-employees; (2) acts benefiting customers or strangers; (3) acts benefiting the claimant; and (4) acts benefiting the employer privately.  An act outside an employee's regular duties which is undertaken in good faith to advance the employer's interest, whether or not the employee's own assigned work is thereby furthered, is within the course of employment.

Id. at 201, 641 S.E.2d at 871-72 (citations omitted).

Zimmerman contends a genuine issue of fact exists because Sweigert did extra services for extended stay guests.  Sweigert testified that about once a week he would put together a barbeque in the courtyard for the extended stay guests.  He also held a Super Bowl party for the extended stay guests.  However, there is no testimony he provided transportation for those guests other than Zimmerman and the other passenger.  Nor is there any evidence he was going to the store in preparation for one of those events. 

Sweigert maintained that at the time of the accident, he was not working and was on personal time.  He stated he was driving his personal car and doing a favor for a friend. 

Zimmerman testified she and Sweigert were "boyfriend and girlfriend" and were dating off and on.  She stated they went places together, including dinner dates.  She claimed Sweigert let her stay at the hotel without paying for at least part of the time she was there due to their relationship.  She could not remember any other payment arrangements.  When asked if he had a romantic relationship with Zimmerman, Sweigert, who was married, admitted they were friends and that he was "very fond" of her. 

Even if the workers' compensation case Grant is applicable, we find no evidence Sweigert's driving Zimmerman to the store was undertaken in good faith to advance his employer's interest.  The evidence only demonstrates Sweigert was doing a personal favor for a friend.  Accordingly, we hold the trial court correctly ruled there was no evidence Sweigert was acting within the scope of his employment at the time of the accident.  Therefore, the order of the trial court granting summary judgment in favor of MyrBeach is

AFFIRMED. 

HUFF, SHORT, and PIEPER, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.