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Costa v. Able Distributors Inc.11/4/1982
Plaintiff/appellant Costa (Costa) appeals from a summary judgment in favor of defendant/appellee Able Distributors, Inc. (Able).
Costa's appeal is based on the following grounds: 1) the trial court erred in granting summary judgment because a genuine issue of material fact existed; and 2) the trial court erred as a matter of law in granting summary judgment. We find no error and affirm.
On December 11, 1978, Richard Arata (Arata) was driving his car and collided with one in which Costa was a passenger at Nimitz Highway and Lagoon Drive. There is evidence indicating he was driving under the influence of intoxicating liquor. Costa was injured and filed this action against Arata's employer on July 10, 1980.
On October 9, 1980, Able filed a motion for summary judgment, supported by Arata's deposition and affidavit in which his testimony was as follows:
Able is a Hawaii corporation whose shareholders are Richard Arata, James Koike, and Leonardo Ganal. Koike and Ganal are officers of Able but do not participate in the management of the business. Arata serves as the president and manager of Able as well as one of its two employees.
On December 11, 1978, Arata finished work at about 4:30 and was reviewing some messages in Able's office when some friends arrived. Five of those friends were employed by Overseas Freight Forwarders (Overseas), a company that Arata had previously worked for, while a sixth was employed by Honolulu Freight Service (Freight). Arata's friends had brought over some beer and, as the evening wore on, Arata purchased more with his personal funds. These gatherings were regular occurrences for Arata and his friends, and their discussions often revolved around their experiences
and problems at Overseas. Although Overseas and Freight did some business with Able, Arata testified that they never discussed any of Able's business. After a few hours of drinking beer, the others left and Arata turned off the lights and locked the premises. He went to his car and proceeded to drive home. At the intersection of Lagoon Drive and Nimitz Highway, the collision occurred.
Costa did not file any counter-affidavits or documents but did file a memorandum in opposition to the motion for summary judgment. After hearing, the motion was granted and judgment was entered on November 19, 1980. Costa filed a motion for reconsideration on November 25, 1980, which was denied by an order filed January 12, 1981. This appeal followed.
1.
Costa argues that a genuine issue of material fact exists. He contends that he is entitled to have a trial jury pass on Arata's credibility and therefore there still remains the issue whether Arata was acting within the scope of his employment, notwithstanding his denial of such. Therefore, the court erred in granting summary judgment. We disagree.
On appeal from an order granting summary judgment, we will review the entire record to see whether any issues of material fact are present. Ottensmeyer v. Baskin, 2 Haw. App. 86, 625 P.2d 1069 (1981). The facts properly shown and any inferences to be drawn therefrom will be considered in the light most favorable to the non-moving party. Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979). We have carefully reviewed the record in this case and find that no genuine issues of material fact exist.
Under Rule 56(e), Hawaii Rules of Civil Procedure (HRCP), the non-moving party in a motion for summary judgment supported by affidavit must resp
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