Thies v. Cooper

• Decision Date: 29 April 1988
• Docket Number: No. 61570,61570
• Citation: 753 P.2d 1280,243 Kan. 149
• Parties: Marcia L. THIES, et al., Plaintiffs, v. Michael COOPER, et al., Defendants. Noreen MALCHOW, Plaintiff, v. Michael COOPER, et al. Defendants.
• Court: Kansas Supreme Court

Page 1280

753 P.2d 1280

243 Kan. 149

Marcia L. THIES, et al., Plaintiffs, v. Michael COOPER, et al., Defendants.

Noreen MALCHOW, Plaintiff, v. Michael COOPER, et al. Defendants.

No. 61570.

Supreme Court of Kansas.

April 29, 1988.

Syllabus by the Court

1. An employer is liable for the tortious acts of an employee only under special circumstances. Special circumstances exist when the employee is on the employer's premises, performing work for the employer, or using the employer's chattel; when the employer voluntarily assumes a duty to control the employee; or when the employer negligently retains a known incompetent or unfit employee.

2. Absent special circumstances, an 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 a third party.

Gary D. McCallister, of Davis, Wright, Unrein, Hummer & McCallister, Topeka, argued the cause and Kerry M. Gasper, of the same firm, was with him on the brief for plaintiffs.

Paula J. Wright, of King, Adrian, King & Brown, Chtd., Salina, argued the cause and Robert M. Adrian, of the same firm, was with her on the brief for defendant V & M Distributing, Inc.

Donald W. Vasos and David A. Hoffman, of Vasos, Kugler & Dickerson, Kansas City, were on the brief for amicus curiae Kansas Trial Lawyers Ass'n.

John W. Mize and James P. Mize, of Clark, Mize, & Linville, Chartered, Salina, were on the brief for amicus curiae Kansas Ass'n of Defense Counsel.

LOCKETT, Justice:

Under the authority of the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., the United States District Court, Wichita, Kansas, asks: whether, under Kansas law, an employer who makes available free cereal malt beverages in uncontrolled amounts to its employees on the employer's premises may be held liable for all foreseeable consequences of its acts and omissions, including torts committed by employees while driving home from the workplace in an intoxicated condition. We conclude: An employer is liable for the tortious acts of his employee only under special circumstances. Special circumstances exist when the employee is on the employer's premises, performing work for the employer, or using the employer's chattel, when the employer voluntarily assumes a duty to control the employee, or when the employer negligently retains a known incompetent or unfit employee. Absent special circumstances, an 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 a third party. The answer to the certified question is, "No."

The parties have stipulated to the following facts. Defendant Michael Cooper was employed by V & M Distributing, Inc., (V & M) a beer wholesaler, as a route driver. V & M provides a hospitality lounge on its premises where cereal malt beverages, soda pop, and coffee are provided without cost to employees and customers. The hospitality room was used for training retailers, community activities, and as an employee lounge. It was common practice for V & M employees to consume cereal malt beverages on the premises during work hours. V & M's policies state "all work is to be completed before using the lounge." V & M's policy manual states:

"Our products should always be presented as products of moderation; therefore, we should only serve or consume a couple of beers while using the hospitality area. Let's all work towards projecting a positive image through the availability of our fine facility."

V & M had no other policy specifically limiting the amount of beer an employee could consume.

On June 14, 1985, Cooper left V & M en route to his home when he lost control of his vehicle and struck and killed a pedestrian, A.R. Thies, whose body then struck and injured Noreen Malchow. Cooper's blood alcohol level measured .22% by weight. Cooper stated he had drunk approximately six or seven beers within the 24 hours preceding the time of the collision. Cooper had no reported history of excessive drinking or of driving a vehicle while intoxicated. No one at V & M was aware that Cooper was intoxicated when he left the workplace. However, the general manager of V & M conceded that it was foreseeable that an employee could overconsume beer in the hospitality room and then become involved in an automobile collision resulting in injury.

Plaintiffs filed suit in the United States District Court for the District of Kansas against Cooper and V & M. The claim against V & M alleged that a special relationship existed between Cooper and V & M by virtue of the employer-employee relationship, that V & M was negligent in providing free intoxicants to its employees on its premises in unlimited quantities, and that V & M was liable for all foreseeable consequences of its acts. V & M filed a motion to dismiss and Judge Kelly withheld a ruling finding no applicable Kansas precedent on the issue of employer liability under these facts.

Negligence is never presumed. Wicina v. Strecker, 242 Kan. 278, 280, 747 P.2d 167 (1987). Negligence exists when there is a duty owed by one person to another and a breach of that duty occurs. Whether duty exists is a question of law. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). It is the general rule that the actor has no duty to control the conduct of a third person to prevent that person from causing harm to others unless a "special relationship" exists between the actor and the third person or the actor and the injured party. Restatement (Second) of Torts § 315 (1963).

Normally, an employer is under no duty to control the conduct of an employee acting outside the scope of employment. Plaintiffs claim a special relationship exists here because the employer's act of negligence occurred while the employee was on the employer's premises and the employee was subject to the employer's control. They also argue that the employer who provides intoxicating beverages to an employee in unlimited quantities knows or should know that the employee could become intoxicated and drive home from work in an intoxicated condition. Under such circumstances, plaintiffs contend the employer assumes the risk of injury to third persons caused by the negligent act of the intoxicated employee.

Plaintiffs rely on four cases for support; all four are inapposite. Primary reliance is placed on the Texas decision of Clark v. Otis Engineering Corp., 633 S.W.2d 538 (Tex.App.1982), aff'd 668 S.W.2d 307 (Tex.1983). Texas is similar to Kansas in not having a dram shop act. Otis involved a wrongful death action brought against an employer after plaintiff's decedents were killed in an automobile accident involving an intoxicated Otis employee. The facts in the case were compelling: the employee, Matheson, had a history of drinking on the job; on the night of the accident Matheson's supervisor knew Matheson was seriously intoxicated, removed him from his work station, and escorted him to the parking lot to his car. This was done even though Otis maintained a nurse's station on the premises. The supervisor testified he was afraid that Matheson might have an accident. In other words, the employer had specific knowledge that Matheson was intoxicated and affirmatively undertook to control the situation. The Texas Supreme Court, in a 5-4 decision, adopted the following standard of duty:

"[W]hen, because of an employee's incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others. 668 S.W.2d at 311.

Four justices disagreed, reasoning that, even in this case, the employer had no duty to control the employee, absent a custodial relationship such as warden/prisoner.

A subsequent Texas case has indicated that the duty imposed on the employer in Otis resulted solely from the employer's affirmative act of taking control of the intoxicated employee. In Pinkham v. Apple Computer, Inc., 699 S.W.2d 387 (Tex.App.1983), plaintiffs sued the employer, Apple, for wrongful death and injury resulting from an accident which occurred when an employee, who had become intoxicated at an employer-sponsored party, struck plaintiffs while driving home. Depositions revealed that the employee had exhibited behavior which indicated intoxication, but that the employer had taken no steps to control the employee. The Texas Court of Appeals held that, since Otis required an affirmative act, no duty would be imposed upon the employer in this case. The Court stated:

"Texas does not have a Dram Shop Act which imposes liability on the provider of alcoholic beverages for subsequent off-premises acts of negligence by patrons or guests. The gist of appellants' contention is that they seek the establishment by judicial decree of liability on a provider of alcoholic beverages for subsequent acts of negligence by an imbiber due to intoxication. This we refuse to do." 699 S.W.2d at 390.

The next case cited by plaintiffs is ...