Christopher A. Daugherty was an employee of the defendant, Allee’s Sports Bar and Grill (Allee’s). He was drinking off-duty at Allee’s one night, while sitting with the General Manager of Allee’s, Eric Walker, who was also off-duty. Off-duty employees are treated as customers at Al-lee’s and receive no discounts for food and drink. Jamie Yoder was the bartender at Allee’s that evening. Mr. Daugherty and Mr. Walker both ordered beer. Before serving beer to Mr. Daugherty, Ms. Yoder placed a toothpick in the beer. Ms. Yoder intended this action to be a practical joke. Mr. Daugherty, unaware of the toothpick, drank the beer. He swallowed the toothpick and was injured as a result. Mr. Walker testified that he was aware that “some joking around or horsing around took place” at Allee’s.
Mr. Daugherty filed a petition for damages against Allee’s. His petition alleged that Allee’s was vicariously liable under the doctrine of respondeat superior for Ms. Yoder’s acts and that Allee’s breached its *872 implied warranty of fitness for consumption because the beer was not fit for human consumption. Allee’s filed a motion for summary judgment on both claims. Mr. Daugherty filed a motion for partial summary judgment on the warranty claim. The trial court granted Allee’s motion for summary judgment without explanation. Mr. Daugherty appeals.
Standard of Review
We review the grant of summary judgment
de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Legal Analysis
In his first point, Mr. Daugherty argues that the trial court erred in granting summary judgment because a genuine dispute existed as to whether Ms. Yoder was operating within the scope of her employment when she placed the toothpick in his beer. Allee’s argued in its motion for summary judgment that it was entitled to judgment as a matter of law because the undisputed facts of the case demonstrate that Ms. Yoder’s conduct was not authorized, was not foreseeable, was not in the furtherance of its business or interests, and arose wholly from an external, independent motive.
“A genuine issue [of material fact] exists where the record contains competent material that evidences two plausible, but contradictory, accounts of the essential facts. A genuine issue is a dispute that is real, not merely argumentative, imaginary, or frivolous.”
Rustco Prods. Co. v. Food Corn, Inc.,
Allee’s claims that it was entitled to summary judgment as a matter of law because the undisputed facts show that Allee’s did not authorize Ms. Yoder to place the toothpick in the drink. However, an employer is liable for an employee’s torts even if the employer did not authorize the employee’s conduct as long as “the employee committed such act while engaged in an activity falling within the scope of the employee’s authority or employment.”
P.S. v. Psychiatric Coverage, Ltd.,
The course and scope of employment is defined “as acts (1) which, even though not specifically authorized, are done to further the business or interests of the employer under his ‘general authority
*873
and direction’ and (2) which naturally arise from the performance of the employer’s work.”
Maryland Cas. Co. v. Huger,
Allee’s argued in its summary judgment motion that Ms. Yoder’s action of placing a toothpick in a beer was not foreseeable and not in furtherance of its business or interests and, thus, was outside the scope of her employment. Specifically, Allee’s argues that the battery must naturally arise from the performance of Ms. Yoder’s work and placing a toothpick in beer does not naturally arise from proper bartender-ing. Allee’s has confused what must be foreseen here. It is clear from
P.S.
that respondeat superior applies to torts committed “while [the employee is] engaged in an activity” that is within the scope of employment.
Moreover, a bartender serving a beer to a customer could be considered conduct in furtherance of Allee’s interest and, thus, within the scope of employment. Contrary to Allee’s argument, Ms. Yoder’s subjective belief that she did not act in furtherance of Allee’s interests or business is not a statement of fact but a conclusion of law that a trial court “should disregard in ruling on a motion for summary judgment.”
Zerebco v. Lolli Bros. Livestock Mkt.,
Nor is the undisputed fact that Ms. Yoder intended for her actions to be a practical joke dispositive of whether she acted within the scope of her employment. “Whether an act was committed within the scope and course of employment is not measured by the time or
motive
of the conduct, but whether it was done by virtue of the employment and
in furtherance of the business
or interest of the employer.”
P.S.,
Allee’s also claims that Mr. Daugherty made a judicial admission 1 when he stated in his in response to the summary judgment motion and in his brief that Ms. Yoder put a toothpick in plaintiffs bottle of beer. Allee’s argues that this statement constitutes an admission because Mr. Daugherty professes the beer *874 had already belonged to him before Ms. Yoder placed the toothpick in it. This argument is nonsensical. The appellant’s brief summarizes the facts as follows: “Yo-der was the bartender at Allee’s. She served Daugherty a beer. As a practical joke, the bartender put a toothpick in Daugherty’s beer.” This language is not specific enough to definitively state that the selling and serving of the beer was complete before she placed the toothpick in it. Additionally, an argument could be made she was still acting as a bartender if she had served the beer and then placed the toothpick in the beer while it was in his possession. Because there is a genuine issue as to whether Ms. Yoder was acting within the scope of her employment, Mr. Daugherty’s first point is granted.
In his second point, Mr. Daugherty argues that summary judgment should not have been granted for breach of the implied warranty of fitness for consumption because genuine issues of material fact exist as to whether Allee’s breached its warranty for fitness for consumption. “[U]nder common law principles there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the latter.”
Degouveia v. H.D. Lee Mercantile Co.,
Allee’s argument for summary judgment on the warranty claim is the same as that for the respondeat superior claim: Ms. Yoder did not act in the scope of her employment so her actions cannot be imputed to Allee’s. As discussed above, whether Ms. Yoder was acting within the scope of her employment is a question for the jury. Allee’s also claims that it did not sell a beer unfit for human consumption because Mr. Daugherty made a judicial admission in his brief that the beer had already belonged to him when the toothpick was placed in the beer. Allee’s relies on the same statements made in Mr. Daugherty’s brief that we determined earlier did not constitute a judicial admission that the toothpick was placed in the beer after it was sold and served. The statements could support the opposite inference that the beer was served and sold with a toothpick in it. “If the movant requires an inference to establish his right to judgment as a matter of law and the evidence reasonably supports an inference other than that alleged by movant, a genuine dispute exists and the movant’s prima facie showing fails.” Id. at 922. Thus, Allee’s was not entitled to summary judgment on the issue of whether it sold beer that was unfit for human consumption to Mr. Daugherty. Mr. Daugherty’s second point is granted.
Conclusion
For the foregoing reasons, we reverse and remand for further proceedings.
SMART, P.J., and HOLLIGER, J„ concur.
Notes
. "A judicial admission is an act by a party[,] which in effect concedes a particular proposition to be true for the purposes of the judicial proceeding. The admission acts as a substitute for evidence and obviates the need for evidence relative to the subject matter of the admission.”
Sheffield Assembly of God Church v. Am. Ins. Co.,
. MAI refers to Missouri Approved Jury Instructions (Sixth Edition).