Girard v. Trade Professionals, Inc.

• Decision Date: 07 May 1999
• Docket Number: No. CIV. A. 98-2122-GTV.,CIV. A. 98-2122-GTV.
• Citation: 50 F.Supp.2d 1050
• Parties: Jerome GIRARD, Plaintiff, v. TRADE PROFESSIONALS, INC. and Roger Anders, Defendants.
• Court: U.S. District Court — District of Kansas

50 F.Supp.2d 1050

Jerome GIRARD, Plaintiff, v. TRADE PROFESSIONALS, INC. and Roger Anders, Defendants.

No. CIV. A. 98-2122-GTV.

United States District Court, D. Kansas.

May 7, 1999.

David M. Mayer, Monsees, Miller & Defeo, Kansas City, MO, for Jerome Girard, plaintiff.

William F. High, Blackwell Sanders Peper Martin LLP, Overland Park, Jana V. Richards, Sanders Conkright & Warren LLP, Kansas City, MO, Paul P. Hasty, Jr., Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, for Trade Professionals, Inc., Roger Anders, defendants.

MEMORANDUM AND ORDER

VANBEBBER, District Judge.

Plaintiff Jerome Girard brings this diversity case alleging that defendant Trade Professionals, Inc. is vicariously liable for defendant Roger Anders' negligence and that Trade Professionals is itself negligent for hiring Anders. The case is before the court on Trade Professionals' motion for summary judgment (Doc. 36). For the reasons set forth in this memorandum and order, defendant Trade Professionals, Inc.'s motion for summary judgment is granted.

I. FACTUAL BACKGROUND

Trade Professionals is a Davenport, Iowa employment agency that provides skilled tradesmen to construction contractors in six states. In early 1997, Roger Anders, a journeyman electrician, contacted Trade Professionals seeking employment. In April 1997, Trade Professionals interviewed Anders, and sent him an application for employment. During the application process, Trade Professionals did not ask Anders about or request a copy of his driving record. Trade Professionals did ask Anders if he owned his own vehicle and if he had reliable daily transportation. Anders answered both questions in the affirmative.

In April or May 1997, Trade Professionals received a request from DeVries Electric to employ an electrician on a school construction project in Overland Park, Kansas. Trade Professionals contacted Anders to fill the electrician position. Anders drove his own vehicle to Kansas to begin work. Upon arrival, Anders rented an apartment rather than staying at a hotel.

Anders received a base pay of $15.00 per hour and a "per diem" of $3.00 per hour to offset the added expenses of working at an out-of-town job site.¹ Specifically, the per diem was added to Anders' paycheck to defray his transportation costs, additional daily living expenses, meals, and hotel or lodging costs. The per diem was not contingent on a showing of additional incurred costs, and Anders was free to spend the extra income as he wished.

During the time Anders worked on the construction project, DeVries Electric directed Anders' activities while he was at the job site, but did not direct Anders when he left the job site. DeVries did require Anders to bring his own tools to the project each day. Anders drove his truck or accepted rides from other construction workers to transport both himself and his tools to the project.

Anders drove his truck to work on May 22, 1997. As Anders drove himself and a co-worker home at the end of the work day, he struck and injured plaintiff Jerome Girard.

II. SUMMARY JUDGMENT STANDARDS

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupportable claims or defenses, and Rule 56 should be interpreted in a way that accomplishes this purpose. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court's proper inquiry is whether there is a need for a trial; in other words, whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing" that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who "may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id.

III. DISCUSSION

In Kansas, "[a]n employer is liable for the tortious acts of his employee only under special circumstances." Thies v. Cooper, 243 Kan. 149, 150, 753 P.2d 1280 (1988). Special circumstances exist when (1) the employee is on the employer's premises; (2) when the employee is performing work for the employer; (3) when the employee is using the employer's chattel; (4) when the employer voluntarily assumes a duty to control the employee; or (5) when the employer negligently retains a known incompetent or unfit employee. Id. In the instant case, plaintiff argues that the second and fifth special circumstances are present. Plaintiff claims that defendant Trade Professionals is vicariously liable for Anders' tortious conduct because Anders was acting in the scope of his employment, and is directly liable for negligently hiring an incompetent or unfit employee. Trade Professionals moves for summary judgment on both grounds.

A. Scope of Employment and Respondeat Superior

Plaintiff first argues that Trade Professional is vicariously liable for Anders' negligence because Anders was acting within the scope of its employment when he injured plaintiff. "An employee is acting within the scope of his authority when he is performing services for which he has been employed or when he is doing anything which is reasonably incidental to his employment." Hollinger v. Jane C. Stormont Hosp. and Training Sch. for Nurses, 2 Kan.App.2d 302, 311, 578 P.2d 1121 (1978); see also PIK 3d 107.06. However, an employer is generally not liable for the negligent acts of its employee occurring while the employee is traveling to or from the workplace. See Kyle v. Postal Telegraph-Cable Co., 118 Kan. 300, 302, 235 P. 116 (1925); see also Christopher Vaeth, Annotation, Employer's liability for negligence of employee in driving his or her own automobile, 27 A.L.R. 5th 174, 233-38 (1995) (collecting cases from thirty-eight states holding that an employee is not acting within the scope of his or her employment when traveling to or from the workplace).

In Kyle v. Postal Telegraph-Cable Co., the Kansas Supreme Court held that a bicycle messenger riding home after his work had ended for the day was not acting in the scope of his employment:

While [the messenger] had in his custody the reports for the company to be later delivered, actual work for the company had ceased for the day. He was free to go where he desired. He could use his own mode and route of travel. The defendant no longer controlled his movements. He might choose any route he desired to go home, or he might not go home all.

118 Kan. at 302, 235 P. 116. Although Kyle was decided more than 70 years ago, it remains the law in Kansas.

Kyle is consistent with the widely-accepted rule that an employee in not acting within his or her scope of employment when driving his or her own vehicle to or from the workplace. This rule, known as the "going and coming" rule is recognized by almost every state supreme court. See 27 A.L.R.5th at 233-38. While the Kansas Supreme Court has not expressly used the phrase "going and coming rule" in the context of vicarious tort liability, it has done so in workers' compensation cases. See Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277-85, 899 P.2d 1058 (1995). Accordingly, the court concludes from Kyle, Kindel, and the general acceptance of the going and coming rule among various state supreme courts, that the Kansas Supreme Court would apply the going and coming rule to the facts of the instant case. This conclusion is consistent with the doctrine of respondeat superior as applied by Kansas courts:

Under Kansas law, a principal's liability for his agent's negligence is determined by asking whether, at the time in question, the agent was engaged in the furtherance of the principal's business to such a degree that the principal had the right to direct and control the agent's activities. The primary factor to be considered is the control which the principal had over the agent. If the principal had no right to direct and control the agent at the time in question, the principal is not vicariously liable to third partie...