Doe v. WTMJ, Inc.
| Decision Date | 30 April 1996 |
| Docket Number | No. 95-2472.,95-2472. |
| Citation | 927 F. Supp. 1428 |
| Parties | Jane DOE, Plaintiff, v. WTMJ, INC. d/b/a 98.9 FM, KQRC, "The Rock", Defendant. |
| Court | U.S. District Court — District of Kansas |
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Tim E. Dollar, Cramer A. Russell, Stigall, Humphrey, Lucas, Henry, Stigall & Dollar, L.C., Kansas City, MO, for plaintiff.
John J. Jurcyk Jr., McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, John R. Dawson, James L. Huston, Brett H. Ludwig, Foley & Lardner, Milwaukee, WI, for defendant.
On January 6, 1995, William Connelly pled guilty to kidnapping plaintiff Jane Doe, a minor, and committing an act of oral sex with her on or about February 7, 1994. At the time the crime occurred, Mr. Connelly was employed as a radio announcer for defendant WTMJ, Inc. In this action, plaintiff alleges that defendant negligently hired, retained and/or supervised Mr. Connelly and that defendant is liable for Mr. Connelly's conduct through the doctrine of respondeat superior. Presently before the court is defendant's motion for summary judgment (Doc. # 17). For the reasons stated below, the court makes the following conclusions: (1) Missouri law governs plaintiff's claims; (2) defendant did not know, nor can it be said that defendant should have known, that Mr. Connelly had a dangerous proclivity to kidnap and sexually molest someone; (3) plaintiff has stated a prima facie case for negligent supervision; and (4) Mr. Connelly was acting outside the scope and course of his employment on February 7, 1994. As a result, defendant's motion is granted in part and denied in part.
KQRC-FM, a division of defendant, is a 100,000 watt radio station with a listening area encompassing the entire Kansas City metropolitan area, which consists of five counties in Kansas and five counties in Missouri. KQRC's studios are in Shawnee Mission, Kansas and its transmitter is in Kansas City, Missouri.
On September 13, 1993, Douglas Sorensen, the program director at KQRC, hired Mr. Connelly as a radio announcer to work the midnight to 6 a.m. and 7 p.m. to midnight shifts each Sunday. As part of the hiring process, Mr. Sorensen sought a reference from Brett Neathery, the general manager at KWPM/KSPQ, a West Plains, Missouri station where Mr. Connelly had worked fulltime. Mr. Neathery told Mr. Sorensen that he had fired Mr. Connelly for insubordination. Mr. Neathery elaborated that he had reprimanded Mr. Connelly for playing an obscure song that was not on the station's playlist. Mr. Connelly did not respond professionally to the reprimand. Minutes later, Mr. Neathery reprimanded Mr. Connelly for lifting the receiver of a ringing telephone, immediately placing it back on the hook, and disconnecting the caller. Mr. Connelly became angry and made statements that Mr. Neathery considered insubordinate. On that basis, Mr. Neathery fired Mr. Connelly.
In addition to describing the events leading to Mr. Connelly's termination, Mr. Neathery told Mr. Sorensen that Mr. Connelly was talented and had a good future in radio if an understanding employer could help him overcome his difficulties in dealing with supervisors. Mr. Neathery did not make a recommendation for or against hiring Mr. Connelly.
Mr. Sorensen interviewed Mr. Connelly twice and in both interviews asked about the circumstances surrounding Mr. Connelly's termination at KWPM/KSPQ. At the conclusion of these interviews, Mr. Sorensen determined that the termination was not a source of concern. Mr. Sorensen also concluded that Mr. Connelly was responsible, dependable and honest. Mr. Sorensen did not suspect that Mr. Connelly might have a criminal record. As a result, Mr. Connelly was hired.
Mr. Sorensen did not check any court files for Mr. Connelly's criminal record or for civil matters in which Mr. Connelly was involved. Mr. Connelly, in fact, had been involved in numerous legal proceedings prior to being hired by KQRC. On March 30, 1982, Mr. Connelly pled guilty to a misdemeanor charge of trespass to an automobile. Also in 1982, Mr. Connelly pled guilty to giving a worthless check under $50, a misdemeanor. In 1984, Mr. Connelly was sued for property damages allegedly stemming from an automobile accident. The suit was dismissed without prejudice for failure to prosecute. Six years later, in 1990, Mr. Connelly and his former wife were sued for overdraft charges owed to Capitol Federal Savings and Loan Association. Defendant contends that this action was subsequently dismissed as to Mr. Connelly. Also in 1990, Melinda Schrader, who had been living with Mr. Connelly, filed for a protective order, alleging that Mr. Connelly had made approximately 50 disturbing phone calls over a four month period and stating her fear that Mr. Connelly would hurt her. Finally, multiple actions have been filed against Mr. Connelly for unpaid child support. All of these actions were filed in various courts within the listening area of KQRC.
KQRC's format is essentially all-music. Announcers are on the air approximately five minutes per hour and are not free to ad lib. Rather, announcers read weather reports, calendars of musical events, and promotions. The only exception to this format is the Monday through Friday drive-time morning show.
The station management at KQRC prepares a play list for each shift. An announcer may not play songs other than those on the play list for that shift. Even though an announcer's ability to play requests is limited to songs on the playlist, listeners may still call in, speak to the announcer and request songs. Mr. Sorensen gave Mr. Connelly a memo outlining the station's programming policies when he was hired. Mr. Connelly agreed to follow the policies. One of the instructions included in the memo was that no obscene language of any nature would be tolerated on the request line. A conversation of a sexual nature between an announcer and a listener would violate this policy.
KQRC was aware that announcers might speak to female minors on the request line. Although KQRC records its on air broadcast, the station does not eavesdrop on or record its announcers' off the air telephone calls. Neither Mr. Sorensen nor any other employee of KQRC supervised Mr. Connelly's use of the request line to ensure that he followed the station's policies. Indeed, on Sundays, the announcer is generally the only person in the KQRC studios during his or her shift. The specific shifts worked by Mr. Connelly typically have the smallest audiences of the week.
From November 1993 until February 1994, Mr. Connelly engaged in sexually explicit conversation with plaintiff, a minor female, over the KQRC request line every weekend. On February 7, 1994, Mr. Connelly met plaintiff at a Hy-Vee grocery store near her home. Mr. Connelly took plaintiff to the Howard Johnson's Motel in downtown Kansas City, Missouri, rented a room, provided cocaine, marijuana and alcohol, and engaged in acts of oral and sexual intercourse with her.
On about February 8, 1994, KQRC learned that Mr. Connelly was suspected of having sexually abused plaintiff. KQRC immediately suspended Mr. Connelly and he never worked at the station again. Mr. Connelly, on January 6, 1995, pled guilty to kidnapping plaintiff and to having committed an act of oral sex with her. Mr. Connelly is presently serving seven and five year sentences concurrently for his crimes.
When considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the nonmoving party. Jones v. Unisys Corp., 54 F.3d 624, 628 (10th Cir.1995). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anglemyer v. Hamilton County Hosp., 58 F.3d 533 (10th Cir.1995). If the moving party does not bear the burden of proof at trial, it must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).
Once the movant meets these requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The nonmovant may not merely rest on the pleadings to meet this burden. Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511. More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.
In her complaint, plaintiff appears to allege that her telephone conversations with Mr. Connelly led to the events of February 7, 1994. On various theories, plaintiff seeks to recover for injuries occurring on that date and stemming from the events on that date.2 Not surprisingly, defendant contends that, as a matter of law, all of plaintiff's theories must fail.
In addition to disputing the propriety of summary judgment as a substantive matter, the parties disagree over whether Missouri or Kansas law governs plaintiff's claims. The court turns initially to the choice of law question and then addresses the parties' negligent hiring, negligent supervision and respondeat superior arguments.3
A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state's choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). Thus, this court looks to Kansas law to determine which state's laws should be applied. Kansas...
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