MID-STATES PLASTICS, INC. V. ESTATE OF WILLIAM CLINTON BRYANT, BY AND THROUGH HIS EXECUTRIX, TINA S. BRYANT, ET AL.
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RENDERED : FEBRUARY 21, 2008
TO BE PUBLISHED
2006-SC-000425-DG
V.
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2004-CA-002145
MONTGOMERY CIRCUIT COURT NO. 03-CI-90240
ESTATE OF WILLIAM CLINTON BRYANT,
BY AND THROUGH HIS EXECUTRIX,
TINA S . BRYANT, ET AL.
APPELLEES
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING
The question in this appeal is whether an employer is liable for an employee's
tortious injuries to a guest who accompanied the employee on a business trip . We
opine that in order to hold the employer liable for the employee's tortious injuries to the
employee's guest on a business trip, the employee must have acted within the scope of
his authority in inviting the guest and for the purpose of accomplishing the work of the
employer. Because the guest in this case had a strictly non-business purpose in
accepting the employee's invitation, we reverse the Court of Appeals and reinstate the
trial court's dismissal .
Mid-States Plastics, Inc. is a Kentucky corporation with its headquarters in Mt.
Sterling, Kentucky. Daniel Edwards was the President, General Manager, and Chief
Executive for Mid-States (at one time he owned the company) . Edwards' duties
involved a significant amount of travel . When traveling for Mid-States, Edwards
determined the method and manner of travel and was reimbursed for his travel
expenses. Specifically, when he drove his car, he collected mileage, and when he flew
commercially, he obtained reimbursement of the plane ticket . Additionally, the company
reimbursed Edwards for his mileage when he flew his own private plane, which he often
used in his travels.
On this last occasion, Edwards had a business trip to Indianapolis, and invited
his pastor, Reverend William Clinton Bryant, along to visit the Reverend's family while
Edwards worked . The trip for the Reverend was free and involved no business purpose
on his part for Mid-States . On this trip, Edwards personally leased a plane rather than
flying his own . Unfortunately, the plane struck a cell phone tower and crashed on the
return trip, killing both Edwards and Reverend Bryant.
The Reverend's estate and family filed suit against Mid-States and Edwards'
estate . The claim against Mid-States was premised on vicarious liability for the
employee's negligent piloting of the plane . The trial court granted Mid-States' summary
judgment, dismissing the case against it without any detail, reasoning, or analysis . The
Court of Appeals reversed and remanded the case to the trial court for further findings.
The Court of Appeals determined that the sole issue before it was whether there were
any genuine issues of material fact concerning Mid-States' vicarious liability to the
decedent's estate for the pilot's negligence under the doctrine of respondeat superior.
The Court of Appeals stated that in determining whether Mid-States could be held
vicariously liable for the pilot's negligence, a factual finding had to be made as to (1)
whether Mid-States had actual knowledge of the employee's practice of allowing a non-
business passenger to accompany him on business trips, and (2) if so, did Mid-States
fail to object.
The facts in Wigginton Studio . Inc. v. Renter's Adm'r, 254 Ky. 128, 71 S .W .2d 14
(1934) are similar to our case. In Wigginton, the vice president (Adams) of the
corporation and another employee used a private vehicle to drive from Louisville to
Middlesboro, Kentucky, ostensibly for business purposes. Myrtle Reuter was one of the
two guests invited to accompany Adams and the other employee on the trip . Reuter
was going to see the scenery, while the other guest was going to see family. Neither
guest's presence was for the purpose of accomplishing the work of the corporation .
During the trip, in a hard rain, the vehicle hit some gravel, skidded, and turned over .
Reuter was seriously injured and died a few hours later. Her estate sued Wigginton
Studio, Inc., and recovered a judgment. On appeal, our predecessor, the Court of
Appeals, reversed opining that:
The rule is well settled in this jurisdiction that a servant has
no implied authority to invite or permit a third person to ride
on a vehicle in his charge and if, in so doing, the invitee
sustains injuries through negligence of the servant, the
master will not be liable, as the servant is not acting within
the scope of his authority.
Id. at 16. The Wigginton Court recognized that not only does the employee have to be
acting within the scope of his/her authority in inviting the guest, but also, the guest's
presence must "be construed as being for the purpose of accomplishing the work of the
corporation ." Id.
The Court in Wigginton cited the case of Armstrong's Adm'r v. Sumne &
Ratterman Co. , 211 Ky. 750, 278 S.W . 111 (1925) and a number of other cases for its
authority. Armstrong's Adm'r involved a milkman' who invited a thirteen-year-old
neighbor to ride along in the company truck. The milkman would sometimes even pay
the young neighbor for helping him . The young neighbor was accidentally injured and
died. In denying recovery, our predecessor Court, the Court of Appeals, held that:
[I]n order for the master to be liable for the acts of his
servant even when done within the apparent scope of the
latter's authority, it must be one in furtherance of the
master's business, and for and on his behalf and not for and
on behalf of the servant without any intention or purpose on
his part to make it the act of the master.
Id. at 115. The Court went on to determine that the milkman was not purporting to act
for the employer in either permitting the neighbor to ride in the truck or in paying the
neighbor a small contribution for the work he did for the milkman . Id .
In our case, it is clear that Reverend Bryant was a guest of Edwards and his
presence "could not be construed as being for the purpose of accomplishing the work of
the corporation," as required by Wigainton before liability attaches to the master. 71
S .W.2d at 16. Also, the fact that Edwards was an officer of Mid-States (President, as
well as the General Manager and Chief Executive) and not just an employee does not
change the outcome . Wigginton made clear that "in order for a company to be held
responsible for the tort of one of its officers he must be acting within the scope of his
employment and in the furtherance of the corporation's business ." Id.
The Court of Appeals cites to the case of Estell v. Barrickman , 571 S .W .2d 650
(Ky.App. 1978) for authority that when the employer is aware that the employee invites
guests and does nothing to enforce a "no rider' rule, the guests become the invitees of
the employer and exposes the employer to liability for the employee's negligence that
In the bygone days, a dairy bought trucks and hired men to deliver milk to the doorsteps of customers
early in the morning . The drivers were known as "milkmen ."
4
may injure the guests. The Court of Appeals' decision in Estell acknowledged that there
were no Kentucky cases for this proposition, but that a number of other states have
adopted this position . Id. at 652. The problem, however, with the Estell approach is
that it ignores the second requirement of Wigginton , that the guest's presence on the
trip somehow must be for the purpose of accomplishing the work of the employer. We
believe the omission of the second element of the tort was not meant to eliminate the
requirement that the guest's presence must also serve the work of the employer. To the
extent that Estell does not require this second element, it is overruled . Even if the
employer fails to adopt a "no rider' rule, and the employee's invitation is within the
scope of his/her employment, liability for tortious injures does not attach unless the
invitation to the guest also served the purpose of accomplishing the work of the
employer. Since the invitation to Reverend Bryant in no way served the employer, MidStates, the trial court was correct in granting summary judgment and dismissing the
claim.
For the foregoing reasons, we reverse the Court of Appeals and reinstate the trial
court's entry of summary judgment dismissing the claims of the estate and family
against Mid-States Plastics, Inc .
All sitting, except Cunningham, J .
Abramson, Minton, Noble, and Scott, JJ ., concur. Lambert, C.J., dissents by
separate opinion.
COUNSEL FOR APPELLANT :
Anne Adams Chesnut
Greenebaum, Doll & McDonald, PLLC
300 West Vine Street
Suite 1100
Lexington, KY 40507
David Andrew Owen
Greenebaum, Doll & McDonald, PLLC
300 West Vine Street
Suite 1100
Lexington, KY 40507
COUNSEL FOR APPELLEES :
Thomas K. Herren
Herren & Adams
148 North Broadway
Lexington, KY 40507
Curtis J . Dickinson
145 Towne Lake Parkway
Suite 300
Woodstock, GA 30188
RENDERED : FEBRUARY 21, 2008
TO BE PUBLISHED
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2006-SC-000425-DG
MID-STATES PLASTICS, INC.
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2004-CA-002145
MONTGOMERY CIRCUIT COURT NO. 03-CI-90240
ESTATE OF WILLIAM CLINTON BRYANT,
BY AND THROUGH HIS EXECUTRIX,
TINA S. BRYANT, ET AL.
APPELLEES
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
I dissent upon the belief that the majority has failed to apply accepted principles
of Kentucky law relating to respondeat superior or vicarious liability . The generally
accepted rule is as follows :
In general it is sufficient to make the master responsible that he gave to
the servant an authority, or made it his duty to act in respect to the
business in which he was engaged when the wrong was committed, and
that the act complained of was done in the course of his employment .'
Under this test, Appellees established vicarious liability from the facts that the employee
Edwards was acting within the scope of his authority and for a business purpose when
the tortious act occurred . Contrary to the majority view, it was not necessary to
establish that the third party, Reverend Bryant, was present for the benefit of the
company . This is in keeping with the purpose of vicarious liability which is to allow
1 Ben Humvich Sand Co. v. Moore, 69 S .W.2d 996, 997 (Ky. 1934).
recovery for the tortious acts of a master's employees . "Charging one with the negligent
acts of another, under the doctrine of respondeat superior, is an arbitrary rule based on
public policy; and its justification is that the employer should be vigilant in supervising
those in his employ to protect the public generally."2
The case relied on by the majority, Wigginton Studio v. Reuter's Adm'r,3 is
distinguishable both on its facts and in its disharmony with the body of Kentucky case
law on respondeat superior liability . Factually, Wigginton turned on the distinction that
the employee who offered the ride to the third party was shown not to have authority to
do so. The Court in Wigginton Studio cited the general rule that the company's liability
for the tort of one of its officers required that the officer be acting within the scope of
employment and in furtherance of the employers' business, but said that the employee
and corporate officer Adams was not acting within the scope of her authority by asking a
passenger to join her on a trip .4
In this case, Edwards, the president of the corporation, was broadly permitted to
secure his own transportation, and whatever he did was implicitly approved and paid for
by the corporation . There was evidence that Edwards had been known by the
corporation to have taken his wife on trips with him. Edwards was thus never
discouraged by the corporation from taking non-company passengers with him. Thus,
unlike Wigginton Studio, Edwards had, at least, implied authority to invite a rider to
accompany him on the trip and to subject the company to liability when Edwards'
tortious act caused harm . Edwards was clearly acting within the scope of his
2 Shedd Brown Mfg . Co. v. Tichenor , 257 S.W .2d 894 (Ky. 1953) .
3 71 S.W.2d 14 (Ky. 1934) .
4 Id. at 16 .
employment . He was acting in furtherance of his employer's business at the time of the
fatal accident .
To make the necessary showing to establish vicarious liability, the proof must
show that the act is one that the agent was employed to perform, or that it accrued
substantially within the authorized time and space limits of the employment or that the
employee was actuated at least in part by a purpose to serve the master. Here the trip
was actuated by a purpose to serve the employer. The question is whether the trip
furthered the business of Mid-States, not whether Reverend Bryant's presence
benefited Mid-States . It was not necessary to show that the invitation to Reverend
Bryant furthered the business to hold Mid-States Plastic vicariously liable.
Wiq ginton Studio is singular in this jurisdiction in requiring that the rider's
presence be for benefit of the corporation in order to bind the employer to vicarious
liability. From a public policy standpoint, it does not make sense to allow an employer
to escape liability when it knew or should have known or expressly or impliedly
authorized its employee to take private guests on its business trips. Thus, I break with
the majority's decision to overrule Estill v. Barrickman.' Instead, I would affirm that case
as an unremarkable but proper application of the law of Kentucky regarding vicarious
liability for invitees of a company . As such, I would affirm the Court of Appeals' reversal
of the trial court's summary judgment.
5 Home Ins . Co. v. Cohen, 357 S.W.2d 674 (Ky. 1962).
6 See e.g_ Weldon v. Federal Chemical Co. , 378 S.W.2d 633, 634 (Ky. 1964) .
571 S .W.2d 650 (Ky.App. 1978) .
3
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