BROOKS (JAMES), ET AL. VS. GRAMS, INC.Annotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES BROOKS; ROBIN BROOKS
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 04-CI-00311
GRAMS, INC., D/B/A GRAM’S
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BEFORE: CAPERTON, KELLER, AND WINE, JUDGES.
WINE, JUDGE: James and Robin Brooks (“the Brookses”) filed this personal
injury/negligence action on August 30, 2004, for damages arising from an
automobile accident involving Ferand Dillingham (“Ferand”). In their complaint,
the Brookses named Ferand’s estate; Edith and Farland Dillingham (the owners of
the vehicle which Ferand was driving); Grams Inc., d/b/a Gram’s Grocery
(“Grams”); and Ferand’s automobile insurance carrier, State Auto Property and
Casualty Insurance Company. Following an extended period of discovery, Grams
filed a motion for summary judgment, arguing that it could not be liable for
Ferand’s negligence because it had no agency relationship with him. After
considering the briefs and arguments of counsel, the trial court granted the motion
and dismissed the Brookses’ claims against Grams.1 This appeal followed.
Finding no error, we affirm.
The following facts are not in dispute. The Brookses’ claims arise
from an early morning automobile accident on September 1, 2003, on U.S.
Highway 150 in Stanford, Lincoln County, Kentucky. At approximately 5:40 a.m.,
Ferand’s east-bound 1998 Eagle Talon collided with the Brookses’ west-bound
1994 Pontiac at a speed of approximately 100 to 110 miles per hour. Ferand died
at the scene. Robin Brooks was hospitalized while her husband, James Brooks,
was treated and released.
Prior to the accident, at approximately 5:00 a.m., Ferand departed
from Grams in Crab Orchard, Lincoln County, Kentucky, where his wife, Apryl
Dillingham (“Apryl”), had been employed as a general laborer and cashier for
approximately two to three months. In her deposition, Apryl testified that Ferand
drove her to work earlier that morning. Upon arrival, Ferand waited to purchase
gas while his wife entered the store to assume her work duties. Apryl states that
Grams’ owner, Mark Fitzpatrick (“Fitzpatrick”), was in the back preparing the
store’s morning breakfast items. She recalled Fitzpatrick announcing that the store
The Brookses’ other claims are apparently still pending.
was out of sausage. In response, Apryl offered to have Ferand go to the Wal-Mart
in Danville to buy some sausage for the store. Apryl took $20.00 from the store
register, went outside, and made the errand request of her husband.
Apryl states that she took the initiative in asking Ferand to go on the
errand, and that Fitzpatrick had little to do with it. Fitzpatrick states that he does
not recall any discussion with Apryl about Ferand doing the errand, but Apryl
informed him about it afterwards. He also acknowledged that there may have been
prior occasions where on-the-clock store employees asked spouses or friends to run
errands for the store.
The investigating officer, Trooper Clyde Bertram, testified in his
deposition that he traveled from the scene of the accident to Grams to notify Apryl
of her husband’s death. He recalled that both Apryl and Fitzpatrick stated that
Ferand was on an errand to buy sausage for the store. Furthermore, Trooper
Bertram testified that Fitzpatrick said that he had advised Ferand to be careful
because it was raining. However, Trooper Bertram was unable to recall where this
alleged exchange with Fitzpatrick occurred.
Based upon these undisputed facts, the trial court concluded that no
agency relationship existed between Ferand and Grams. Although Ferand was
clearly running an errand for his wife and, by extension, Grams, the trial court
found no evidence that Grams exercised any control over Ferand or the manner in
which he performed the errand. Consequently, the trial court determined that
summary judgment was appropriate since the Brookses could not prevail as a
matter of law.
In reviewing a motion for summary judgment, a trial court must
consider all stipulations and admissions on file. Kentucky Rules of Civil
Procedure (“CR”) 56.03. Summary judgment is only proper where the movant
shows that the adverse party could not prevail under any circumstances. Steelvest,
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991), citing
Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). “The standard of
review on appeal of a summary judgment is whether the trial court correctly found
that there were no genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky. App. 1996), citing CR 56.03. “There is no requirement that the appellate
court defer to the trial court since factual findings are not at issue.” Scifres, supra,
citing Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381 (Ky.
The trial court and the parties focus on whether Ferand was an agent
of Grams. The parties agree that Ferand was never an employee of Grams.
Nevertheless, the Brookses contend that Ferand was acting as an agent for Grams
at the time of the accident. But while this question is relevant, it is not the
controlling issue in this case.
The absence of an employment relationship between Grams and
Ferand does not preclude a finding that Ferand was acting as Grams’ agent.
Likewise, the fact that Ferand volunteered his services does not preclude a finding
that he was acting as Grams’ agent. Fournier v. Churchill Downs-Latonia, 292
Ky. 215, 166 S.W.2d 38, 40 (1942). See also Warrener v. Federal Land Bank of
Louisville, 266 Ky. 668, 99 S.W.2d 817, 820 (1936). The question of agency
always concerns the nature of the relationship at the time the injury occurred. Sam
Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756 (Ky. 1955).
“Agency is the fiduciary relation which results from the manifestation of consent
by one person to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act.” Phelps v. Louisville Water Co., 103
S.W.3d 46, 50 (Ky. 2003), quoting CSX Transportation, Inc. v. First National
Bank of Grayson, 14 S.W.3d 563, 566 (Ky. App. 1999).
Under the facts of this case, the bare bones of agency law may support
a finding that an agency relationship existed between Grams and Ferand, either as
a gratuitous agent or as a sub-agent of Grams, appointed by Grams’ agent Apryl.
Standard Oil Co. v. Adams, 271 Ky. 221, 111 S.W.2d 668, 669 (1937). See also
Louisville & Nashville Railroad Co. v. Vaughn's Transfer Co., 123 S.W. 253 (Ky.
1909). Furthermore, there is evidence that Fitzgerald ratified Apryl’s act, at least
after the fact. Under such circumstances, a principal may be bound by the contract
executed by its agent, even if the agent did not have the authority to employ
However, a finding of agency under these facts addresses the liability
of the principal to the sub-agent, not the liability of the principal for the negligent
acts of a sub-agent. The central issue in this case is whether Grams may be held
liable for Ferand’s negligence under the doctrine of respondeat superior. The rule
of respondeat superior embodies the theory that where one acts through the agency
of another, in legal contemplation, he is himself acting and thus is responsible for
acts of his agent. “[W]hen an agent fails in any duty which he owes to a third party
or the public generally, the principal is responsible for the failure.” Smith v. Smith,
333 S.W.2d 503, 504 (Ky. 1960). Under such circumstances, an employer is
strictly liable for damages resulting from the tortious acts of his employees.
Patterson v. Blair, 172 S.W.3d 361, 364 (Ky. 2005).
The right to control is considered the most critical element in
determining the principal’s liability for the tortious acts of an agent. Phelps, supra,
at 50, citing CSX Transportation, supra, at 566-67. Other factors in determining
whether an agency relationship exists include:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a
distinct occupation or business;
(c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the direction
of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the
(h) whether or not the work is a part of the regular
business of the employer; and
(i) whether or not the parties believe they are creating the
relationship of master and servant.
Sam Horne Motor & Implement Co. v. Gregg, supra, at 756-57, quoting
RESTATEMENT (SECOND) OF AGENCY § 220(2). See also RESTATEMENT (THIRD) OF AGENCY §
7.06(3) and Comment f (2005).
Arguably, the facts of this case satisfy three of these factors. While
Ferand was not an employee of Grams, the task being performed is of a type which
would have been performed by either Fitzpatrick himself or someone working
under his direct employ. Given the size of the business, Fitzpatrick would not have
hired an independent contractor to purchase sausage for the store. And while
Ferand took his own car to purchase the sausage, Apryl gave Ferand money from
the store for the purchase. Therefore, Fitzpatrick, through his agent Apryl,
supplied one of the instrumentalities necessary to perform the work. And finally, it
can be reasoned that purchasing sausage for preparation and sale is part of the
regular business of Grams.
But under the circumstances of this case, the presence of three of the
nine factors outlined in Sam Horne Motor & Implement Co. v. Gregg, supra, is not
sufficient to impose liability upon Grams for the Ferand’s negligence. Apart from
supplying the money, neither Grams nor Fitzpatrick exercised any control over
how Ferand performed the task. Ferand drove his own vehicle, chose the route he
traveled, and could have decided not to complete the errand without any direct
consequences from Grams. Grams cannot be liable for Ferand’s negligence in the
absence of any showing that it exercised control over him or the instrumentality
which caused the injuries. See Shedd Brown Mfg. Co. v. Tichenor, 257 S.W.2d
894, 897 (Ky. 1953).
The Brookses also point out that there was evidence that Fitzpatrick
advised Ferand to be careful because it was raining, and that Fitzpatrick knew that
Ferand had a tendency to drive too fast. They also note Fitzpatrick’s admission
that spouses and friends of on-the-clock employees may have run similar errands
in the past. However, the test for liability under the doctrine of respondeat
superior hinges upon the degree of control which the principal exercises over the
agent or sub-agent. See also Wright v. State of New Jersey, 169 N.J. 422, 778 A.2d
443, 451-52 (2001); and Nicholas v. Moore, 570 P.2d 174, 176 (Alaska 1977).
The disputed facts do not address this critical issue.
Finally, we note that there are important social and economic
considerations to imposing vicarious liability upon a principal for the negligence of
a volunteer such as Ferand. A finding of liability under such circumstances could
impact “such common social accommodations as car pooling and running errands,
as well as the provision of gratuitous services to persons such as the elderly, by
imposing unforeseeable, uncontrollable and potentially uninsured liability upon the
beneficiaries of such services without significant concomitant gain.” Newman v.
Isuzu Motors America, Inc., 367 N.J. Super. 141, 842 A.2d 255, 258-59 (N.J.
Super A.D. 2004). While such policy considerations are not controlling, they are
relevant given the lack of evidence supporting a finding that Grams exercised any
control over Ferand. Thus, as a matter of law, Grams cannot be liable for damages
caused by Ferand’s negligence, and the trial court properly granted summary
judgment for Grams on this issue.
Accordingly, the judgment of the Lincoln Circuit Court is affirmed.
CAPERTON, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS AND FILES SEPARATE OPINION.
KELLER, JUDGE, CONCURRING: While I agree with the holding
of the majority I feel compelled to write that I do not share the same concerns of
the majority regarding the potential imposition of vicarious liability. I believe the
factors outlined in Sam Horne, supra, as applied to social circumstances such as
carpooling and assisting the elderly would not compel a result of vicarious liability.
Furthermore, just as important is the social policy concern over businesses
engaging non-employees for (gratuitous) services which otherwise would be
performed by employees. The policy concern that a business could potentially
shield itself from liability in this manner is just as troubling as the potential
imposition of vicarious liability.
BRIEFS AND ORAL ARGUMENT
BRIEF AND ORAL ARGUMENT
J. Hadden Dean
Angela L. Greene