Hollinger v. Jane C. Stormont Hospital and Training School for Nurses

• Decision Date: 19 May 1978
• Docket Number: No. 49112,49112
• Citation: 2 Kan.App.2d 302,578 P.2d 1121
• Parties: Carolyn Sue HOLLINGER, Appellant, v. JANE C. STORMONT HOSPITAL AND TRAINING SCHOOL FOR NURSES, a corporation, Appellee.
• Court: Kansas Court of Appeals

Page 1121

578 P.2d 1121

2 Kan.App.2d 302

Carolyn Sue HOLLINGER, Appellant, v.JANE C. STORMONT HOSPITAL AND TRAINING SCHOOL FOR NURSES, a corporation, Appellee.

No. 49112.

Court of Appeals of Kansas.

May 19, 1978.

Review Denied July 17, 1978.

Syllabus by the Court

1.A master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant.Following Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, Syl. 4, 280 P.2d 623(1955).

2.A master is not liable for injuries inflicted by one employee upon another employee when the act which caused the injury was not authorized by the master, was not done to promote the master's business and was not part of the employee's duties.Following Balin v. Lysle Rishel Post No. 68, supra, Syl. 5.

3.General rules to be considered on appeal in determining the correctness of a trial court's instructions are stated and applied.

4.Instructions should not be composed by carving from opinions certain statements which are applicable or controlling only in those cases in which they appear.Instructions should be general in their nature and should not emphasize certain factors and omit others in such manner that they, in effect, become argumentative.

5.The matter of responding to the request of a jury for further instruction on the law or evidence in a case, made after the jury has retired for deliberations, is generally addressed to the discretion of the trial court.However, circumstances may create a duty of the trial court to clarify its former instructions by giving additional information as provided by K.S.A. 60-248(e ) and the failure to do so many constitute reversible error.

6.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.The test is not necessarily whether the conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it.

7.The liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was willful and intentional or was unintentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer's business and within the scope of his authority or had stepped aside from that business and had done an individual wrong.The now generally recognized rule is that the employer is liable for the reckless, willful, intentional, wanton, or malicious acts of his employee as well as for his heedless and careless acts if they are committed while the employee is acting in the execution of his authority and within the course of his employment, or with a view to the furtherance of his employer's business, and not for a purpose personal to the employee.

8.If an assault by an employee is motivated entirely by personal reasons such as malice or spite or by a desire to accomplish some unlawful purpose, and does not have for its purpose the furtherance of the employer's business, it will be considered personal to the employee and not such as will make the employer answerable.

Robert D. Ochs and Charles S. Fisher, Jr. of Fisher, Ralston, Ochs & Heck, Topeka, for appellant.

Edwin D. Smith of Fisher, Patterson, Sayler & Smith, and Wayne T. Stratton of Goodell, Cogswell, Stratton, Edmonds, Palmer & Wright, Topeka, for appellee.

Before FOTH, C. J., and SPENCER and SWINEHART, JJ.

SPENCER, Judge:

In a suit for damages for personal injuries, the jury returned its verdict in favor of defendant and plaintiff has appealed.

On September 28, 1971, plaintiff was selling and delivering newspapers to patients and employees in defendant hospital.Plaintiff was in the front lobby of the hospital with a bag of tightly packed newspapers resting on her left shoulder when Danny Rome, who was employed by defendant as a janitor, approached her from behind and attempted to remove a newspaper from the bag.In the process, Rome lifted or jerked the bag in such a manner that plaintiff was injured.

Rome was first employed by defendant in September, 1969, and for most of the time his work had proved unsatisfactory.It was known to defendant that Rome had a tendency to talk with others rather than complete his assigned work; that he was careless in failing to return his equipment to proper storage areas; and that on one occasion a visitor to the hospital had slipped and fallen in an area where Rome was spray-buffing without having first displayed appropriate warning signs.Rome was repeatedly the subject of administrative discussion and attempts to improve his work habits.On November 25, 1969, the director of housekeeping prepared a report on Rome as follows:

"This report is written about the happenings with Mr. Dan Rome regarding his employee and work relations here at Stormont-Vail Hospital.

"1.Mr. Rome consistently disregards instructions given him by supervisors,

"2.He is not willing to put forth the effort to do a good job without strict supervision or someone assigned to assist every minute,

"3.He cannot be trusted to complete work assignments properly,

"4.He either does not have the capability or his attitude in such that he is not willing to learn from just criticism,

"5.Due to all of the above reports, the emergency area has deteriorated due to the complete stripping and refinishing which is quite time consuming,

"6.Conversations and lack of interest also a factor of this report, and

"7.Finally, having considered all of the above points, I recommend Mr. Rome to be placed on a wall washing job only, knowing that if this does not work out satisfactorily to both parties, Mr. Rome will be terminated.A given amount of time approximately two weeks will be probationary."

On September 3, 1971, his supervisor prepared a memo on Rome stating in part:

" . . . This employee never does complete a job to the expectancy of a good Housekeeping employee.The man has been warned several times by me alone, and when he does work it is in a haphazard way, his equipment is laying around, is dangerous to patients and other employees.Dan Rome has a habit of stopping work and talking to any one that comes along."

This memo suggested that Rome be terminated but also indicated that termination should be delayed for thirty days "to bring this employee into shape . . .."There was evidence that the injuries to plaintiff occurred because Rome was attempting to play a prank or a practical joke on her and Rome testified that, at the time of the accident, he was teasing plaintiff and attempting to have some fun with her.There was also evidence that defendant permitted plaintiff on the hospital premises for the purpose of selling and delivering newspapers to patients, employees, and supervisory personnel and that defendant permitted employees of the hospital to buy newspapers from her.

The petition alleged two causes of action: First, that defendant was liable under the doctrine of respondeat superior because Rome was acting within the permitted and accepted scope of his employment at the time of plaintiff's injury; and, second, that defendant was negligent in failing to exercise reasonable care in the selection, employment training, control, and retention of Rome as an employee.The petition was subsequently amended to allege gross negligence on wanton and reckless conduct on the part of defendant and to seek an additional amount as punitive damages.Issues were joined, discovery completed, and on August 13, 1974, the court sustained defendant's motion for summary judgment as to the first cause of action (respondeat superior ) and as to plaintiff's claim for punitive damages.The motion for summary judgment was overruled as to the second cause of action and the case went to the jury on plaintiff's theory of negligence.

Pertinent portions of instructions No. 2andNo. 3 as given to the jury are as follows:

"INSTRUCTIONNO. 2

"The plaintiff claims that she was injured and sustained damages as a direct result of the negligence of the defendant.Specifically, plaintiff alleges:

"(a) That Danny Joe Rome was an incompetent or unfit employee of the defendant;

"(b) That defendant was negligent in employing said Danny Joe Rome and in retaining him in its employment when said defendant knew or should have known of such incompetence or unfitness of said Danny Joe Rome; and

"(c) That plaintiff was injured and sustained damages as a direct result of the incompetence and unfitness of defendant's servant, Danny Joe Rome.

"In order for plaintiff to recover on her claim against the defendant, plaintiff must sustain the burden of proving the foregoing allegations.

"The defendant denies that it was negligent in employing and retaining in its employment Danny Joe Rome, that plaintiff was injured as a direct result of any incompetence and unfitness on the part of its employee, Danny Joe Rome, and that plaintiff has sustained damages to the extent claimed.

"If the jury finds from all the evidence that the plaintiff has met the burden of proof on each of the allegations concerning which the burden of proof rests upon said plaintiff and that the defendant has failed to meet the burden of proving its affirmative defense of contributory negligence, then you should return a verdict in favor of plaintiff.

"If the plaintiff sustained the burden of proving all the allegations of her claim and the defendant sustained the burden of proving that plaintiff failed to avoid or minimize damages, then the jury should reduce the amount of plaintiff's recovery by any amount of damages which could have been avoided by plaintiff by the exercise of...