Williams v. Community Drive-In Theater, Inc., DRIVE-IN

• Decision Date: 06 April 1974
• Docket Number: No. 47168,DRIVE-IN,47168
• Parties: Jerry WILLIAMS, Appellant, v. COMMUNITYTHEATER, INC., Appellee, and Donna Kinder McKenna, Defendant.
• Court: Kansas Supreme Court

Page 1296

520 P.2d 1296

214 Kan. 359

Jerry WILLIAMS, Appellant, v. COMMUNITY DRIVE-IN THEATER, INC., Appellee and Donna Kinder McKenna, Defendant.

No. 47168.

Supreme Court of Kansas.

April 6, 1974.

Syllabus by the Court

1. A motion for summary judgment under the provisions of K.S.A. 60-256(c) is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering such a motion the movant's adversary is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Where the facts presented in the motion are subject to conflicting interpretations or reasonable persons might differ as to their significance summary judgment is improper.

2. 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 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.

3. The liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was wilful 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 done an individual wrong. The now generally recognized rule is that an employer is liable for the reckless, wilful, 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.

4. In determining whether an assault by an employee is of a personal nature, and therefore unforeseeable, the question whether the employment is of such a nature that the use of force may be contemplated to protect the interests of the employer may became a pertinent factor.

5. In an action against a drive-in theater corporation for damages sustained by a patron as a result of an employee's discharge of a shotgun, the record is examined and it is held: The evidence before the trial court upon rendition of summary judgment sufficiently raised for jury determination the issue of whether the employee was acting within the scope of her employment.

John A. Bausch, of Ascough, Bausch, & Eschmann, Topeka, argued the cause and was on the brief for appellant.

Robert D. Ochs, of Fisher & Benfer, Chartered, Topeka, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an action against a corporate drive-in theater and one of its employees for damages for personal injuries sustained by a theater patron as a result of the employee's discharge of a shotgun. Summary judgment was rendered for the theater company and the patron has appealed.

Plaintiff Jerry Williams in his petition alleged that on April 7, 1970, he was a patron on the theater premises in Topeka operated by defendant Community Drive-In Theater, Inc.; that defendant Donna Kinder McKenna was at that time a theater employee and was acting within the scope of her employment; at the time in question Donna negligently and carelessly discharged a shotgun into his back, inflicting bodily injuries and consequent damages for which he seeks recovery. Jury trial was demanded.

Defendant Community filed its separate answer denying, among other things, plaintiff's allegation that Donna was its employee at the time in question and that she was acting within the scope of her employment.

After the taking of certain depositions Community filed its motion for summary judgment on the ground the pleadings and depositions showed there was no genuine issue as to any material fact and it was entitled to judgment as a matter of law.

At the time the motion was heard and judgment rendered the trial court had before it the depositions of plaintiff, Donna and Community's manager as well as the latter's affidavit. We briefly summarize the matter contained in those documents.

Plaintiff testified that on the night in question he and his girl friend and Tim Yates and his wife attended the movie at Community's drive-in theater. As they were driving their car toward the exit they were stopped by another vehicle which blocked their path; the man in the other car asked plaintiff what he was doing driving around; plaintiff replied he wasn't driving around, he was just trying to leave the theater; the man said, 'Okay, go ahead'; they were angry about being stopped and after taking the girls home he and Yates decided to go back and file a complaint with the manager; they wanted an apology or something; they drove back to the drive-in and went directly to the concession stand; the ticket office was closed; the movie was still being shown and people were at the theater; they knocked at the concession door but got no response; about that time he saw a girl open a car door and take out a gun; he walked around to the south side of the concession stand and the girl came up behind him and Yates and pointed the gun at plaintiff; he turned and asked her what she was doing; hearing nothing he turned and started to walk away; he took two or three steps and the girl shot him; before the gun went off Yates said he wanted to see the manager; the girl said 'just keep walking'.

Donna McKenna testified that at the time of the incident she was sixteen years of age; she was employed at the Community drive-in theater on April 7, 1970, and had been working there for about three weeks; she worked in the concession stand; sometimes she helped close the theater; closing it involved picking up speakers that might have been thrown down and closing and locking all doors and the gate; her husband worked at the theater ticket office and one time prior to April 7, 1970, she had helped him close the place; the night she helped him close they sat in the car to make sure everyone left; her husband would check cars that came in after the ticket office closed, maintain discipline and make sure there was no foul play; on April 7, 1970, she reported to the drive-in manager, Mr. Barnhardt, about 6:00 p. m., inquiring if she was scheduled to work; he replied that she was not but she might be needed later that night; she left and returned that night between 9:00 and 9:30 p. m.; she parked her automobile next to the southeast corner of the concession stand; they were quite busy there and the manager asked if she would run the cash register; about 10:30 p. m. while she was still working at the cash register, the assistant manager, Mr. Robertson, asked her if she would help him close the theater because the other girl was due home; she agreed to help him; she helped close the concession stand shortly after 11:00 p. m. and then went with Robertson in his car; at this time she, Robertson and the projectionist were the only employees on the premises; Robertson parked the car close to the entrance so they could view the movie and also see if anyone tried to get in without paying; while sitting there she saw plaintiff's car come into the drive-in and go to the concession stand; Robertson said he believed this was the same car he had twice before asked to leave; Robertson drove his car down to the concession stand where the men were walking around and he then went to talk to a third man who was in plaintiff's car; she accompanied Robertson and then went to her car to get her husband's .410 gauge shotgun to take to Robertson; since there were three men against Robertson she thought the shotgun would give him a little more authority and the three would think twice before causing any trouble; she was afraid for his and her safety because the man in the automobile made her believe they were in for trouble; she was walking behind the plaintiff and his friend when they stopped and one of them said, 'She has a gun'; she then put the gun up against plaintiff's shoulder and told him, 'Let's go to the other side of the building'; plaintiff turned as if to walk in front of her, the gun dropped, she grasped the gun tighter which probably pulled the trigger and plaintiff was shot; she grasped the gun tighter only to keep it from falling when plaintiff unexpectedly turned; she had no intention of shooting him or anyone else; the gun discharged accidentally.

Donna further testified she checked the shotgun to see if it was loaded but had not checked the safety; the decision to get the gun was her own; her husband had been at the theater earlier that day using the gun to shoot rats and 'things'; he would engage in this practice frequently with Robertson and the manager; Robertson knew they owned a shotgun; she had fired the shotgun that afternoon but had not previously done so; she did not receive any pay for the evening.

The manager, Mr. Barnhardt, testified as to the duties of various drive-in employees; the assistant manager, Robertson, was in charge that night after he had left; Robertson was expected to investigate any disturbance, maintain discipline among patrons, watch and protect property and take appropriate action; on the night in question he noticed an automobile drive to the rear about 10:45 p. m.; he and Robertson started to investigate; Robertson asked if he could help them; when they said they were trying to find their way out Robertson showed them and they left. Barnhardt testified he left before the shotgun incident and had no contact with plaintiff other than observing the automobile; he talked with Robertson after the incident; Robertson told him the man in the...