ILE STATE OF MISSOURI ) AUG 1 6 2021 ) ss 20% JUDICIAL CitwuIT CITY OF ST. LOUIS ) px ROUIT CLERKS OFFICE OgPUTY MISSOURI CIRCUIT COURT TWENTY-SECOND JUDICIAL CIRCUIT & (City of St. Louis) “ep A “61, 280 Cg id AIMEE WAHLERS, Plaintiff, No. 1922-CC11675-01 vs. Division No. 20 NATHANIEL HENDREN, et al., Defendants. ORDER The Court has before it Defendants City of St. Louis (“City”) (also pled as Nathaniel Hendren, Patrick Riordan and Gary Foster in their official capacities) and Gary Foster’s (“Foster”) (collectively “Defendants”) Motion to Dismiss Plaintiff’s Petition. The Court now rules as follows. In deciding a motion to dismiss all well-pled facts are to be presumed true. The facts in this matter were briefly summarized in the United States District Court’s April 22, 2020, Memorandum and Order and are recounted here. In the early morning hours of January 24, 2019, Nathaniel Hendren (“Hendren”) shot and killed Katlyn Alix (“Alix”).? Alix and Hendren were in a romantic relationship, and the shooting occurred at Hendren’s apartment. In the early T Wendren was subsequently chazged with homicide and pled guilty to Involuntary Manslaughter ~ First Degree. See State v. Hendren, Cause No. 1922-cR00289-01 (Circuit Court of St. Louis City, Missouri)evening of January 23, 2019, Alix, who was off duty, text Hendren to say that she was going to come to his apartment to bring him medicine for his cold. Hendren was scheduled to work the night shift later that evening. After Alix arrived at Hendren’s apartment, the two proceeded to make dinner together. Despite having to work that night, Hendren consumed an unknown quantity of alcohol before reporting for duty. Hendren’s shift began shortly before 11:00 p.m. From the start of their shift through the time of the shooting, Hendren and his police-patrol partner, Patrick Riordan (“Riordan”), were in uniform and on duty. Hendren and Riordan drove a GPS-equipped police cruiser, St. Louis City Police Department policy requires officers to log in on the vehicle computer to trigger the GPS system, and prohibits officers from tampering with or disabling the GPS system in any way. However, their location could not be tracked because Hendren and Riordan either did not log in or manipulated the GPS system. Defendant Foster, a police sergeant with the Department, was Hendren and Riordan’s supervisor that evening. Foster failed to ensure that Hendren and Riordan properly enabled the GPS system. Just a few minutes after their shift began Hendren and Riordan texted Alix that they could use a “beginning of shift smoke” andasked her whereabouts. Soon after, Hendren and Riordan received a call from dispatch regarding an assault and reported to the incident. Afterwards, Riordan told Alix to meet them at Hendren’s apartment. The Police Department divides the City of St. Louis into six patrol districts. The Department assigned Hendren, Riordan and Alix to District 2. Although Hendren and Riordan were supposed to be on patrol in District 2, Hendren’s apartment was located in District 1. Alix, still off duty, arrived at Hendren’s apartment at 11:45 p.m. Around the same time, Hendren and Riordan received a call about a triggered building alarm in their patrol area. Ignoring the call, they instead arrived at Hendren’s apartment a few minutes after Alix. Riordan then texted Officer Phillip Vonderhydt, another Department officer, and asked him to investigate the building alarm. Vonderhydt and Riordan exchanged text messages about why Hendren and Riordan were not responding to the alarm. Shortly after midnight, Riordan stated via text to Vonderhydt: “F*ck it I’m just coding it.” Vonderhydt replied: “WTF dude. What’s so important you can’t take this call? Call dispatch and say you are on something. And they send [another officer].” Five minutes later, Hendren and Riordan, improperly code the alarm call an “F,” or false alarm.At the apartment, Hendren and Riordan proceeded to consume alcohol and other unknown substances while on duty - in direct contradiction of Department policy. Both Hendren and Alix became intoxicated. Soon after, Hendren’s neighbors reported hearing a “screaming fight” and yelling between a man and a woman. Hendren took out his personal revolver. He put a single bullet in the revolver and spun the cylinder. He “dry fired” the revolver multiple times while pointing the weapon down the hallway. Finally, Hendren pointed the revolver at Alix’s chest and pulled the trigger once more. The weapon fired and the bullet struck Alix in the chest, killing her. After Riordan phoned District 2 dispatch to report an “officer down,” he and Hendren took Alix to a nearby hospital in their police cruiser. Later that morning, the hospital pronounced Alix dead. “A motion to dismiss for failure to state a claim ‘is solely a test of the adequacy of the plaintiff’s petition.” Dunn v. Precythe, 557 S.W.3d 454, 455 (Mo. App. 2018). Plaintiff Aimee Wahlers (“Plaintiff”) brought this action for wrongful death, assault and battery, outrage, and a prima facie tort relating to the shooting death of her daughter, Alix, by Hendren, Plaintiff seeks damages in excess of $25,000.00 from Hendren, Riordan, the City of St. Louis and Foster.Defendants contend that Plaintiff should be precluded from bringing her claims against them. Defendants argue that since Hendren was acting outside of the scope of his employment when he shot Alix there is no tortious act that can be claimed against them, Additionally, Defendants contend that even if a tortious act was committed by them, the doctrines of sovereign immunity and official immunity apply and they cannot be held liable for the death of Alix. Plaintiff contends that Foster and the St. Louis Police Department were responsible for Hendren’s misconduct under the doctrine of respondeat superior. “Under the doctrine of respondeat superior, an employer is liable for the misconduct of an employee where that employee committed such misconduct within the course and scope of his employment.” Higgenbotham v. Pit Stop Bar & Grill, LLC, 548 S.W.3d 323, 328 (Mo. App. 2018). “An act is within the course and scope of employment if (1) even though not specifically authorized, it is done to further the business or the interests of the employer under her general authority and direction and (2) it naturally arises from the performance of the employer’s work.” Id. In this matter Hendren and Riordan were outside of their assigned patrol district, ignored dispatched emergency calls, consumed alcohol and other substances, and used unauthorized personalfirearms while on duty. Hendren and Riordan took steps to hide their actions from their supervisors because they knew that these actions were outside of their police duties. “So long as the act is fairly and naturally incident to the employer’s business although mistakenly or ill-advisedly done, and did not arise wholly from some external, independent or personal motive, it is done while engaged in the employer's business.” Higgenbotham, 548 S.W.3d at 328. Although Hendren and Riordan were on duty, all of their actions were taken with a personal motive and in no way furthered the business of the St. Louis Police Department Plaintiff further contends that Defendants were the proximate cause of Alix’s death. “The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence. We determine this by looking back, after the occurrence, and examining whether the injury appears to be a reasonable and probable consequence of the conduct.” Wilmes v. Consumers Oil Co.,473 S.W.3d 705, 721 (Mo. App. 2015). There is no way to reasonably correlate the consumption of alcohol, ignoring the dispatched emergency calls, going back to your private residence, outside of your assigned patrol zone, to “smoke” with your girlfriend and then shoot her with your personal weapon, withthe duties of a police officer. Additionally, there is no way to naturally conclude that a police officer who chooses to shirk his responsibilities on duty will become intoxicated and shoot an off- duty police officer in his home. In sum, the Court finds that there was no tortious act by Defendants as Hendren’s actions were of a personal nature and outside the scope of his employment. Without the tortious act there is no need for the defense of sovereign and official immunity. THEREFORE, it is Ordered and Decreed that Defendants’ Motion to Dismiss Plaintiff’s Petition is hereby GRANTED as it relates to the City of St. Louis (also pled as Nathaniel Hendren, Patrick Riordan and Gary Foster in their official capacities) and Gary Foster individually. SO ORDERED: bated: Qugguat 1b, 202/ Gd ea eatin — —