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Calisterio v. Kerns3/14/2002
The Calisterio family was injured when Lyle Kerns's vehicle crossed the center line and collided with their vehicle. Prior to the accident, Mr. Kerns had been drinking on the premises of his business, Artistic Towing, Inc. When the accident occurred, Mr. Kerns was running a personal errand before returning home from the business premises. The court granted Artistic Towing's motion for summary judgment dismissing it from the case. The Calisterios appeal contending a general issue of material fact exists as to whether Artistic Towing is liable under the master-servant doctrine. We conclude Mr. Kerns was not acting in the course of his employment as a matter of law and, for that reason, we affirm the judgment of the superior court.
FACTS
Edward F. Calisterio, Jr., and Karen M. Calisterio, husband and wife, and their daughters, Amber M. Calisterio and Sheena M. Calisterio, all residents of the State of Idaho, were injured in a motor vehicle collision occurring on February 24, 1996. Their vehicle was hit head-on by a vehicle owned and operated by Lyle W. Kerns, who is the sole owner of a business known as Artistic Towing, Inc. It was Mr. Kerns's practice to go to the premises of Artistic Towing on weekends and holidays to check for break-ins and make sure the shop was secure. On February 24, 1996, which was a Saturday, Mr. Kerns went to Artistic Towing and did a security check.
After checking the premises, Mr. Kerns drilled some holes in a board for his wife who was making a candle holder. While on the premises of Artistic Towing, Mr. Kerns drank whiskey. Prior to leaving Artistic Towing, Mr. Kerns phoned his wife who asked him to pick up some dry cleaning on the way home. Mr. Kerns was on his way to the dry cleaners when his truck crossed the center line and collided with the Calisterio family's vehicle. Mr. Kerns's blood alcohol, taken at the hospital following the collision, was 0.37 grams per milliliter.
The Calisterios filed a personal injury action against Mr. Kerns, his wife, and Artistic Towing, Inc. The court granted Artistic Towing's motion for summary dismissal and denied the Calisterios' motion for reconsideration. The Calisterios appeal.
ANALYSIS
'When reviewing summary judgment, the appellate court engages in the same inquiry as the trial court and reviews the evidence de novo.' Lilly v. Lynch, 88 Wn. App. 306, 311, 945 P.2d 727 (1997). Summary judgment is appropriate 'if 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.' CR 56(c). The party seeking summary judgment bears 'the initial burden of showing the absence of an issue of material fact.' Green v. A.P.C., 136 Wn.2d 87, 100, 960 P.2d 912 (1998). Once that burden has been met, the 'adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.' CR 56(e). A 'material fact' is a fact upon which the outcome of the litigation depends, in whole or in part. Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963).
The Calisterios contend that a genuine issue of material fact exits as to whether Mr. Kerns's consumption of alcohol could reasonably be considered to be within the scope of his employment. They argue that when an individual is provided liquor while serving the interest of the employer and, subsequently, while affected by the alcohol, injures an innocent party after leaving the busines
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