Kendall v. Cmty. Cab Co., NO. 2019-CA-1074-MR

• Decision Date: 02 October 2020
• Docket Number: NO. 2019-CA-1074-MR
• Citation: 610 S.W.3d 694
• Court: Kentucky Court of Appeals
• Parties: Andria KENDALL, Appellant v. COMMUNITY CAB COMPANY, INC.; and NK Management, LLC, Appellees

610 S.W.3d 694

Andria KENDALL, Appellant

v.COMMUNITY CAB COMPANY, INC.; and NK Management, LLC, Appellees

NO. 2019-CA-1074-MR

Court of Appeals of Kentucky.

OCTOBER 2, 2020; 10:00 A.M.

BRIEFS FOR APPELLANT: Haley S. Stamm, Fort Mitchell, Kentucky.

BRIEF FOR APPELLEES: Ahmed C. Hassan, Cincinnati, Ohio.

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

OPINION

DIXON, JUDGE:

Andria Kendall appeals from orders entered by the Kenton Circuit Court dismissing her claim against Community Cab Company, Inc., and NK Management, LLC (collectively, Community Cab), for breach of contract for safe passage, and denying her motion to alter, amend, or vacate, entered on May 23, 2019, and July 10, 2019, respectively. Following review of the record, briefs, and law, we reverse and remand.

On October 10, 2010, Andria Kendall accompanied friends to a retail and entertainment center known as "Newport on the Levee." At the end of the evening, Kendall decided to take a cab to return home. She and a friend entered a cab owned and/or operated by Community Cab and driven by Mohamud Abukar. During the drive home, Kendall and her friend fell asleep. Kendall awoke to discover Abukar brutally raping her. Abukar was later convicted of first-degree rape in Kenton Circuit Court.

Kendall hired an attorney, Mark Godbey, to represent her in a civil suit against Community Cab arising out of her sexual assault. However, Godbey failed to file suit on behalf of Kendall. In a separate case from the one at bar, Kendall filed a legal malpractice claim against Godbey claiming, among other things, that her case against Community Cab was now time-barred as the one-year statute of limitations for personal injury actions had expired. See KRS ¹ 413.140. Herein, Kendall filed suit against Community Cab on the separate theory of breach of contract of safe passage. The statute of limitations had not yet expired for a breach of contract claim. See KRS 413.120.

Community Cab filed a motion to dismiss in Kenton Circuit Court, which the trial court granted on May 23, 2019. The trial court ruled that while Kendall had labeled her claim a contract claim, it was in reality a claim for personal injury. Therefore, the court concluded the one-year statute of limitations for personal injury applied as opposed to the five-year statute of limitations for contractual claims and, consequently, Kendall's claim was barred because it had been filed nearly five years after her rape. This appeal followed.

When a motion is made pursuant to CR ² 12.02(f) for dismissal for failure to state a claim upon which relief may be granted, "the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true." Gall v. Scroggy , 725 S.W.2d 867, 869 (Ky. App. 1987) (citation omitted). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo. " Littleton v. Plybon , 395 S.W.3d 505, 507 (Ky. App. 2012) (citation omitted).

Kendall contends herein that Community Cab breached an oral contract of safe passage by failing to sufficiently vet Abukar prior to employing him to drive its taxicab. She claims no one at Community Cab conducted a background check on Abukar or otherwise investigated his employment documentation and thereby failed to utilize the highest duty of care for its customers, such as Kendall.

Community Cab argued, and the trial court agreed, because Kendall sought damages for personal injuries, she was improperly attempting to turn a personal injury action into a contract action in order to escape the one-year statute of limitations. Consequently, the trial court determined Kendall's claim was barred by the applicable statute of limitations for personal injury. We disagree.

The concept of a carrier's duty of safe passage is an old and unique one. Kendall relies upon the earliest Kentucky case recognizing this claim, Sherley v. Billings , 8 Bush 147, 71 Ky. 147 (1871). Therein, Billings, a teenage boy, while traveling on a steamboat, was assaulted and injured by one of the carrier's employees. The employee, tasked with the duty of collecting the passage fare, had approached Billings and demanded payment. Billings complied and paid the fare. However, the clerk apparently believed Billings had been hiding to avoid paying the fare and subsequently assaulted him. Billings then brought suit against the owners of the steamboat, seeking damages for the injuries he sustained at the hands of the boat owners’ employee. The boat owners argued they were not responsible for the consequences of the employee's "willful and unauthorized tort[.]" Id. , 71 Ky. at 150. The Court disagreed, however, holding:

In this case the appellants are common carriers of passengers. They do not undertake absolutely to insure the safety of those subjecting themselves to their control; but the law holds them to "the strictest responsibility for care, vigilance, and skill on the part of themselves and those employed by them." They are required to behave toward their passengers "with civilty [sic] and propriety, and to have servants and agents competent for their several employments, and for the default of [their] servants or agents in any of the above particulars, or generally in any other points of duty, the carrier is directly responsible." (2 Parsons on Cont., 5th ed., 225.)

Every individual who commits his person to the custody and government of others has the right to expect from them the highest practicable degree of care and skill. So likewise has he the right to expect protection from injuries or outrages at the hands of strangers or of fellow-passengers, if by the use of reasonable foresight such injuries could have been anticipated and averted. This protection passengers upon steamboats must receive from the officers of the vessels, and it is one of the stipulations of the implied contract between the carrier and the passenger that such protection shall be afforded by these officers. They represent the carrier, are selected by him, and it is his imperative duty to see that the passenger is treated by them with "civility and propriety."

If these officers fail to use reasonable diligence in the protection of the passenger from injuries at the hands of strangers or other passengers the contract is violated, and the carrier can be held responsible for such damages as the injured passenger may have sustained by reason of such failure. To our minds both the reason and philosophy of the law demands that such contract shall protect the passenger from injuries and insults at the hands of those who, for the time being, are intrusted [sic] with the custody of his person.

Id. at 151-52 (emphasis added). Kentucky courts have consistently recognized this implied contract of safe passage as a cause of action since Billings was decided in 1871. It is not essential for liability that the employee be acting within the scope of his employment at the time he commits the wrong:

Ordinarily a master is liable to a third person for injuries inflicted by a servant only when the servant is acting within the scope of his employment but in the case of certain voluntary relationships entered into between a master and another liability may be imposed upon the master in favor of such other on account of wrongs inflicted by a servant even though the servant may have been acting for his own purposes and with no intent to benefit the master—it is immaterial that the servant may have been acting beyond the scope of his employment. Such a voluntary relationship is that of carrier and passenger. It is in the light of that relationship that the question must be determined.

It is the rule in this state, and the almost universal rule, that a carrier is liable for assaults committed on passengers by its employees whether the assault is in the supposed interest and discharge of a supposed duty to the carrier or was merely that of an individual motivated by conceptions of personal wrong and entirely disconnected with the performance of a duty. 13 C.J.S., Carriers, § 689, p. 1273, 10 A.J. 263, Restatement of the Law, Agency, 475 ; Payne v. Moore , 196 Ky. 454, 244 S.W. 869 [ (1922) ] ; Louisville & N. R. Co. v. Bennett, 183 Ky. 445, 209 S.W. 358 [ (1919) ] ; Illinois Cent. R. Co. v. Winslow , 119 Ky. 877, 84 S.W. 1175 [ (1905) ] ; Winnegar's Adm'r v. Central Passenger Ry. Co., 85 Ky. 547, 4 S.W. 237 [ (1887) ] ; White v. South Covington & C. St. R. Co ., 150 Ky. 681, 150 S.W. 837, 839 [ (1912) ] ; Wise v. Covington & C. St. Ry. Co., 91 Ky. 537, 16 S.W. 351 [ (1891) ].

Gladdish v. Southeastern Greyhound Lines , 293 Ky. 498, 169 S.W.2d 297, 299 (1943). See also Southeastern Greyhound Lines v. Conklin , 303 Ky. 87, 196 S.W.2d 961, 963 (1946) ; Howard v. Middlesborough Hosp. , 242 Ky. 602, 47 S.W.2d 77, 79 (1932) ; Illinois Cent. Ry. Co. v. Winslow , 119 Ky. 877, 84 S.W. 1175, 1176 (1905).³

Furthermore, courts have consistently held carriers to the highest duty of care. Another panel of our Court stated in Kendall's suit against her former attorney that,

[r]egarding the standard of care, Kentucky has long recognized the common carrier standard of care. A common carrier of passengers owes those passengers the highest degree of care in transporting them to protect them from "dangers that foresight can anticipate and to exercise the utmost skill, diligence and foresight for [their] safety, consistent with the practical operation of his bus." Wise v. Fannin , 306 Ky. 327, 207 S.W.2d 764, 765 (1948). Indeed, "[a] common carrier owes its passengers a higher degree of care than does the operator of a private vehicle." Indianapolis & Southeastern Trailways, Inc. v. Blankenship , 444 S.W.2d 267, 268 (Ky. 1969) (citing Adams v. Louisville Taxicab & Transfer Co. , 307 Ky. 405, 211 S.W.2d 397, 399 (1948) ).

Community Cab, which is

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