Meyers v. Grubaugh
| Decision Date | 19 February 1988 |
| Docket Number | No. 60886,60886 |
| Citation | 242 Kan. 716,750 P.2d 1031 |
| Parties | , 56 USLW 2523 Gregory E. MEYERS, Appellant, v. Jon A. GRUBAUGH, Defendant, and State of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Actionable negligence must be based on a breach of duty.
2. Absent special circumstances, a private employer owes no duty to a third party for tortious acts of an employee who, after consuming alcohol on the employer's premises, leaves the employer's premises and while off duty injures the third party.
3. Pursuant to K.S.A. 75-6103(a), the State and its entities as employers bear no greater liability than would a private employer under the laws of this state.
Dan L. Smith of Bronston & Smith, Overland Park, argued the cause and Lloyd Burke Bronston, of the same firm, was with him on the brief, for appellant.
David Plinsky, Asst. Atty. Gen., argued the cause and Nancy L. Ulrich, Asst. Atty. Gen., Carl A. Gallagher, Asst. Atty. Gen., and Robert T. Stephan, Atty. Gen., were on the brief, for appellee.
Plaintiff, Gregory E. Meyers, was injured when his car was struck by a car driven and owned by Jon A. Grubaugh, an intoxicated employee of the Kansas State Grain Inspection Department. Plaintiff filed an action against both the employee and the employer. The employee settled with the plaintiff and was dismissed from the action. Plaintiff claims because the State's supervisors: (1) failed to properly supervise the conduct of its employee; (2) allowed the employee to become intoxicated while at work; and (3) allowed the employee to leave work early knowing he was intoxicated, the State has breached its duty to the plaintiff. The State filed a motion for summary judgment which was granted by the Wyandotte County District Court. Plaintiff appealed. We affirm the grant of summary judgment determining that because, absent special circumstances, a private employer would owe no duty to a third person for tortious acts of an employee who, after consuming alcohol on the employer's premises, leaves the premises and, while off-duty, injures the third person, the State likewise owes no duty to plaintiff.
During working hours on the afternoon of June 18, 1985, Grubaugh, in violation of state and federal law, consumed several cans of beer while seated in his car which was parked in a lot leased by the State. After obtaining permission to leave work early from his supervisor, Earl Sprung, Grubaugh left work at 3:00 p.m.
At approximately 3:15 p.m., Meyers was injured when his vehicle, traveling eastbound on a state highway, was struck head-on by a westbound vehicle owned and driven by Grubaugh. At the time of the accident, Grubaugh was intoxicated and acting outside the scope of his employment.
In his second amended petition against Grubaugh and the State, Meyers alleged the State was liable because its supervisors at the State Grain Inspection Department:
(1) failed to properly supervise the conduct of its employee.
(2) allowed Grubaugh to become intoxicated while under its control in violation of K.S.A. 41-719, K.S.A. 75-2949f(m) and (p), and 7 C.F.R. §§ 800.186 and § 800.195 (1987).
(3) allowed Grubaugh to leave work early at which time it was known Grubaugh was intoxicated.
The State filed a motion for summary judgment alleging immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. The district court judge granted the State's motion for summary judgment as a matter of law because: (1) a private party would not be liable under these facts; (2) the State is not liable to plaintiff for the failure of its agents to enforce laws which prohibit drinking on duty; (3) Grubaugh was acting outside the scope of his employment at the time of the accident; and (4) the State was immune under the discretionary function exception to the Kansas Tort Claims Act.
Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, is required to search the record and determine whether issues of material fact exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Hunt v. Dresie, 241 Kan. 647, 652-53, 740 P.2d 1046 (1987). Reading the record in the light most favorable to Meyers, we must assume that the State knew that Grubaugh had consumed beer during working hours and knew that he was intoxicated when he was allowed to leave work early.
Initially, we must determine whether the State of Kansas owed plaintiff a duty to supervise and control its intoxicated employee, so as to avoid foreseeable harm to others. The liability of the State for tortious conduct is governed by the Kansas Tort Claims Act. Under the Act, liability is the rule, subject to the statutory exceptions. Before reaching any of the exceptions, we must consider K.S.A. 75-6103(a), which provides:
"Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."
Pursuant to K.S.A. 75-6103(a), the State and its entities as employers bear no greater liability than would a private employer under the laws of this state. The Act creates no new causes of action, and recovery under the Act requires the plaintiff to raise a recognized tort action and prove the essential elements of duty, breach of that duty, and injury proximately resulting from the breach. Cansler v. State, 234 Kan. 554, 558, 675 P.2d 57 (1984).
Meyers claims that K.S.A. 41-805, which provides that any owner of any premises who knowingly allows alcohol to be consumed in violation of the Kansas Liquor Control Act shall be liable for the maintenance of a common nuisance, imposes civil liability upon the private owner of the premises to a third party who is injured by an individual who illegally consumed the alcohol. A similar claim under a different statute was rejected by this court in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985).
In Ling, a Missouri store vendor illegally sold alcohol to a minor who became intoxicated and caused injury to Ling in an automobile accident which occurred in Kansas. The majority of this court declined to impose third-party civil liability on the alcohol vendor. The majority reasoned that at common law, a plaintiff injured by the acts of an intoxicated person has no redress against the seller or furnisher of intoxicating liquor either on the theory that the dispensing of liquor constituted a direct wrong or on a negligence theory. The majority opined that the question of civil liability was best reserved for legislative action, even though the vendor's act violated K.S.A. 41-715, which prescribes criminal penalties for providing alcohol to persons unlikely to be able to handle the consumption of alcohol. After Ling was decided, the Kansas Legislature declined to impose civil liability on a private vendor of alcohol when a violation of K.S.A. 41-715 resulted in injuries to a third party. The district court here, following our reasoning in Ling, correctly determined that K.S.A. 41-805 also does not impose civil liability on the State because it maintained a public nuisance.
Meyers also claims that statutes, state departmental regulations, the State's contract with the federal government, and the common law impose third-party liability on the State, as an employer, for the torts of one of its intoxicated employees. Meyers points out that the State is under a statutory duty to ensure that employees do not become intoxicated while at the workplace. K.S.A. 41-719 provides that no person shall drink or consume alcohol while on any property owned by the State. For additional support, Meyers cites the general rule that public officers and employees have a duty to supervise their employees. 63A Am.Jur.2d, Public Officers and Employees § 301, p. 885. In addition, under its contractual agreement with the federal government, pursuant to 7 C.F.R. § 800.195(f)(4), the State is responsible for the direct supervision of its employees and for insuring that employees neither report for duty in an intoxicated or drugged condition nor consume intoxicating beverages or incapacitating drugs while on duty.
Meyers concedes that, at most, the contract, the regulations, and statutes impose a duty upon the employer to supervise employees and ensure that they do not become intoxicated on the premises. The issue then becomes, to whom is this duty owed? Clearly, the purpose of the policies, regulations, and statutes is to ensure the quality of the work products of the employees, to protect the safety of the workplace, and to enforce the public policy against the consumption of alcoholic beverages on property owned or leased by the State.
Meyers does not claim that the federal regulations and the State statutes recognize a duty to a third party whom the employee may injure while outside the scope of his employment. Rather than liability to a third party stemming from the violation of one of the regulations or statutes, Meyers contends that the employer's duty to the general public is created by engrafting upon the regulations or statutes additional principles of modern common-law negligence, specifically the Restatement (Second) of Torts §§ 315, 317, and 319 (1963).
Section 315 provides that there is no duty to control the conduct of a third person to prevent him from causing physical harm to another unless a "special relationship" exists between the actor and the third person or the actor and the injured party.
Section 317 recognizes that the "special relationship"...
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