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Unpublished Opinion No.  2011-UP-345 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.