Wayman v. Accor North Am. Inc.

• Decision Date: 18 March 2011
• Docket Number: No. 103,456.,103,456.
• Parties: Donald WAYMAN, Appellant,v.ACCOR NORTH AMERICA, INC., d/b/a Motel 6, and Frederick Ristow, Appellees.
• Court: Kansas Court of Appeals

45 Kan.App.2d 526

251 P.3d 640

Donald WAYMAN, Appellant,

v.ACCOR NORTH AMERICA, INC., d/b/a Motel 6, and Frederick Ristow, Appellees.

No. 103,456.

Court of Appeals of Kansas.

March 18, 2011.

[251 P.3d 641 , 45 Kan.App.2d 526]

Syllabus by the Court

1. An employee is acting within the scope of the employment if the employee is performing services for which the employee has been employed or is doing anything reasonably incidental to the employment. The test is not necessarily whether the specific 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.

2. The liability of an employer for the acts of an 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 or she did the wrong, was acting in the prosecution of the employer's business and within the scope of his or her authority, or had stepped aside from that business and done an individual wrong. An employer is liable for the reckless, willful, intentional, wanton, or malicious acts of an employee as well as for heedless and careless acts if they are committed while the employee is acting in the execution of his or her authority and within the course of his or her employment, or with a view to the furtherance of the employer's business, and not for a purpose personal to the employee.

3. Whether an employee is acting within the scope of his or her employment is generally a question of fact, but if only one reasonable conclusion can be drawn from the evidence, the court can decide the issue as a matter of law.

4. Under the uncontroverted facts of this case, the district court did not err by determining as a matter of law that an employee's on-call status did not impose vicarious liability on the employer for the employee's negligence.

5. The Kansas Supreme Court has stated that the modern rationale for vicarious liability is the enterprise justification concept. Under such a justification, the losses caused by an employee's tort are placed on the enterprise as a cost of doing business and on the employer for having engaged in the enterprise.

6. Imposing blanket liability on an employer for any injury on business property caused by an employee who is required to live on the property as a condition of employment does not serve the enterprise justification concept for vicarious liability, unless the employee is performing services for which the employee has been employed or is doing anything reasonably incidental to the employment at the time of the injury.

7. In order to find an employer liable for negligently hiring or retaining an employee the employer must, by virtue of knowledge of the employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of continued employment of that employee; and the harm which results must be within the risk created by the known propensity.

8. Kansas law recognizes negligent supervision as a separate and distinct theory in addition to theories of negligent hiring and negligent retention. Negligent supervision includes not only the failure to supervise but also the failure to control persons with whom the defendant has a special relationship, including the defendant's employees or persons with dangerous propensities.

Matthew L. Bretz and Melinda G. Young, of Bretz Law Offices, LLC, of Hutchinson, for appellant.Curtis L. Tideman, David R. Frye, and Matthew K. Corbin, of Lathrop & Gage LLP, of Overland Park, for appellee Accor North America, Inc.Before MALONE, P.J., MARQUARDT and LEBEN, JJ.MALONE, J.

Donald Wayman was a guest at the Motel 6 in Manhattan, Kansas, when he was struck and injured by a car driven by the motel general manager, Frederick Ristow, who was intoxicated. Wayman filed a lawsuit against Ristow individually and Accor North America, Inc., d/b/a Motel 6 (Accor), claiming (1) Accor was vicariously liable for Ristow's negligent behavior and (2) Accor negligently hired, retained, and supervised Ristow. The district court granted summary judgment in favor of Accor on both claims. Wayman obtained a judgment against Ristow and timely appealed the district court's decision granting summary judgment in favor of Accor. For the reasons set forth herein, we affirm the judgment of the district court.

In May 2005, Accor employed Ristow as the general manager of the Motel 6 in Manhattan, Kansas. Ristow had been employed as a Motel 6 general manager at various locations throughout the United States since 1989. He had been general manager at the Motel 6 in Manhattan since 1998. As part of his compensation, Ristow lived at the motel where he was on call 24 hours per day to handle emergency situations. On most workdays, Ristow worked in the motel office from 6 a.m. until approximately 2:30 p.m. He would then usually go to the bank to deposit cash receipts for the motel. After finishing at the bank, Ristow usually stopped at Mel's Tavern in Manhattan to eat and have a couple of drinks, and he usually returned to the motel by 5 p.m.

On May 23, 2005, Ristow did not follow his usual workday schedule. Ristow arrived at the motel around 1:30 p.m. after being in Nebraska to visit family members. After asking the manager on duty to stay so he could get something to eat, Ristow left the motel and went to Mel's Tavern where he stayed until approximately 8 p.m. drinking alcohol. Ristow did not go to the bank that day or perform any other regular workday duties. Although Ristow understood that he was on call if the manager on duty needed help at the motel, he did not receive any phone calls that day about problems at the motel.

At approximately 8 p.m., Ristow left Mel's Tavern and drove back to the motel. As Ristow was pulling into a parking stall, his vehicle jumped the curb and struck Wayman, a guest at the motel, who was standing near the doorway of his room. Wayman sustained serious personal injuries. Officer Dale Rice of the Pottawatomie County Sheriff's Office investigated the accident and arrested Ristow for driving under the influence of alcohol. Ristow later admitted that he was intoxicated at the time of the accident. Within a week of the accident, Accor fired Ristow.

On August 11, 2006, Wayman filed a lawsuit against Accor alleging that Accor was both vicariously liable as Ristow's employer and directly negligent in failing to protect Wayman from Ristow's negligent behavior. Ristow was later named as a party to the lawsuit. In the pretrial conference order, Wayman's claim against Ristow was based on negligence. However, the district court subsequently granted Wayman's motion to add a claim for punitive damages against Ristow based on his “wanton” conduct of driving a vehicle under the influence of alcohol.

On January 2, 2008, Accor filed a motion for summary judgment. Accor's motion claimed that Ristow was not on duty while he was drinking at Mel's Tavern; therefore, Accor was not vicariously liable for Ristow's negligence. Accor also requested summary judgment on Wayman's claim that Accor negligently hired, retained, and supervised Ristow. On May 27, 2008, the district court filed a memorandum decision that denied the motion for summary judgment on the vicarious liability claim but granted summary judgment in favor of Accor on the claim of negligent hiring, retention, and supervision. On the vicarious liability claim, the district court found that the central question was whether Ristow was on duty and therefore within the scope of his employment when he was on call for the motel, and the district court found that whether Ristow was on call was a question of fact.

On February 18, 2009, Accor asked the district court to reconsider the previous summary judgment ruling on the issue of vicarious liability, and the district court subsequently invited the parties to file additional authority. On May 15, 2009, the district court issued a memorandum decision. Based upon the summary judgment pleadings, the district court determined the uncontroverted material facts to be as follows:

“1. Ristow was the General Manager for the Motel 6 in Manhattan, Pottawatomie County, Kansas, in May 2005.

“2. Ristow was required to live on the Motel 6 premises while working as General Manager.

“3. Wayman was a customer of Motel 6 on May 23, 2005.

“4. As an additional condition of his employment, Ristow was required to have a driver's license so that he could run errands for his employer from time to time, which he, in fact, did from time to time.

“5. Ristow was required by his employer, Accor, which does business as Motel 6, to be in Manhattan, Kansas by 2:00 p.m. on May 23, 2005, at which time he was to be ‘on call’. Ristow arrived at the Motel 6, at approximately 1:30 p.m. and was ‘on call’ from that point on.

“6. Being ‘on call’ required Ristow to be available 24 hours a day for any emergency situations that may arise at Motel 6.

“7. Shortly after returning to Manhattan, Kansas, Ristow drove to a tavern in Manhattan.

“8. Ristow went to the tavern for purely personal reason[s], and was not ‘called’ to respond to any emergency situation at Motel 6 while there.

“9. Ristow was at the tavern, consuming alcohol, from approximately 2:00 p.m.—8:00 p.m.

“10. When Ristow left the tavern he returned to the Motel 6, where he struck plaintiff with his automobile when pulling in to a parking stall.

“11. Ristow admits he was under the influence of alcohol at the time of the accident and plead guilty to driving under the influence of alcohol.”

Based upon the uncontroverted facts, the district court determined that “only one reasonable conclusion can be drawn” from the evidence on the issue of vicarious liability. The district court found that Ristow was not “acting within the scope of his employment or doing anything reasonably incidental to the same” when ...