United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Foster started a fire in his room at the Residence Inn
Wichita East when he fell asleep while frying eggrolls on the
stovetop, according to the Amended Complaint filed by the
plaintiffs. The fire resulted in $147, 006.95 in damages to
the hotel, and the insurers of the hotel have sued both
Foster and his employer, FlightSafety International. After
FlightSafety moved to dismiss the first Complaint (Dkt. 10)
on the grounds that it had no liability for Foster's
negligence, the plaintiffs filed an Amended Complaint (Dkt.
14). FlightSafety then renewed its motion to dismiss. (Dkt.
plaintiffs' Amended Complaint stresses that Foster was on
a business trip and that FlightSafety paid for the room. In
addition, they allege that FlightSafety had an agreement with
the hotel for discounted room rates. According to the Amended
Complaint, “the entire purpose of Defendant
Foster's trip was business on behalf of Defendant
FlightSafety.” (¶ 35).
their response to the renewed motion to dismiss, plaintiffs
argue that dismissal is inappropriate in the absence of
“evidence ... regarding the time, place, or
circumstances” of the accident, or of
“Foster's position within FlightSafety, the
specific requirements and/or nature of his employment, or
even whether he was still on-call or working when the fire
took place.” (Dkt. 20, at 5). While FlightSafety
“scoffs at the notion that cooking eggrolls while on a
work trip could be within the course and scope of employment,
” the plaintiff suggests that “[t]here are a
number of plausible scenarios wherein Defendant Foster could
have been in the course and scope of his employment while
cooking.” (Id.) FlightSafety argues in its
reply that the plaintiffs have failed to detail what those
scenarios are, and that “Foster's conduct in
cooking, sleeping, and doing both simultaneously”
should not be imputed to FlightSafety. (Dkt. 21, at 6).
Kansas law, an employee acts within the scope of employment
if he performs services for which he has been employed or
does 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.” Commerce Bank of St. Joseph v.
State, 251 Kan. 207, 210, 833 P.2d 996 (1992). See
also O'Shea v. Welch, 350 F.3d 1101, 1103 (10th Cir.
2003) (citing Pattern Instructions Kansas 3d 107.06;
Williams v. Cmty. Drive-In Theater, Inc., 520 P.2d
1296, 1301-02 (Kan. 1974)). Under this flexible approach,
Kansas law permits recovery for injuries caused by a servant
who has deviated but slightly from his ordinary duties,
recognizing that the servant “does not cease to be
acting within the course of his employment because of an
incidental personal act, or by slight deflections for a
personal or private purpose, if his main purpose is still to
carry on the business of his employer.”
O'Shea, 350 F.3d at 1107. Whether an
employee's deviation is slight or substantial is
determined by reference to: (1) the employee's intent;
(2) the nature, time, and place of the deviation; (3) the
time consumed in the deviation; (4) the work for which the
employee was hired; (5) the incidental acts reasonably
expected by the employer; and (6) the freedom allowed the
employee in performing his job responsibilities. Id.
at 1108 (citing Felix v. Asai, 192 Cal.App.3d 926,
237 Cal.Rptr. 718, 722 (1987)).
an injury arose within the scope of employment is a generally
a factual determination; the court may resolve “this
question as a matter of law when only one reasonable
conclusion can be drawn from the evidence.”
Lamberth v. United States, No. 16-2709, 2017 WL
747871, at *2 (D. Kan. Feb. 27, 2017) (citing Wayman v.
Accor N. Am., Inc., 251 P.3d 640, 646 (Kan.Ct.App.
2011)). The determination “involves a consideration of
the individual factual setting of each case, including
objective as well as subjective considerations.”
Foster v. Bd. of Trustees of Butler County Cmty.
Col., 771 F.Supp. 1122, 1130 (D. Kan. 1991) (citing
Focke v. United States, 597 F.Supp. 1325, 1339 (D.
argues that Foster simply could not have been acting in the
scope of his employment, and supports its motion to dismiss
by reliance on five cases from outside Kansas, and one early
decision by the Kansas Supreme Court.
Minamayor Corp. v. Paper Mill Suppliers, Inc., 297
F.Supp. 524, 525 (E.D. Pa. 1969), the court determined that
an employer was not responsible for a motel fire caused by
one of its salesmen, even though the employer paid for the
trip's expenses and the salesman was “subject to
call at any time.” The court observed:
It is obvious that [the salesman's] conduct in rising,
shaving and apparently lighting a cigarette were neither acts
within the scope of his employment or negligent conduct
during the course thereof. That employers are responsible for
all acts of their salesmen while on the road without regard
to whether such acts are related in any way to the
employer's business is, if the folklore surrounding the
conduct of travelling salesmen has any basis in fact, a
See also Acadia Ins. Co. v. United States, No.
13-S-895-NE, 2016 WL 304568 (N. D. Ala. Jan. 25, 2016)
(employer not responsible for fire caused by an employee
smoking from a hotel balcony).
cases such as Minamayor have been rejected as a
general model for determining the scope of duty of a
traveling employee. In Lexington Ins. Co. v. Henkels
& McCoy, Inc., No. 02-0764, 2002 WL 32130104, at *2
(E.D. Pa. May 20, 2003), the court denied summary judgment as
to whether the defendant's employee, who started a hotel
fire by leaving an oil-filled pan unattended on the stove,
was acting in the scope of his employment. The court noted
the extended nature of the employee's assignment, and the
fact that the company's workers frequently “chose
an efficiency hotel with cooking facilities ... because it
was less expensive than going out to eat every night.”
Id. At the time of the fire, the employee had been
staying at the hotel for two and a half months. The court
noted that it was the employer's practice to send
employees ... to remote locations for extended business
trips. Moreover, lodging and eating will necessarily be
elements of such extended business trips, whether they are
directly provided by the employer or not, and Defendant's
understanding of this fact is evident in its provision of $40
per day to its employees for living expenses. Thus, a
reasonable juror might conclude that in preparing his meal at
the efficiency hotel on a Sunday during a business visit
lasting over two and a half months, Underwood's actions
were incidental to and in furtherance of Defendant's
business interests.... [A] reasonable juror might find that
Defendant had knowledge of the propensity of its employees to
stay at “extended stay” hotels (or efficiency
hotels) and to prepare their own meals on extended business
trips (in order to be able to afford to sleep and eat on the
$40 per diem allowance provided by Defendant), and that
Defendant could therefore have reasonably expected such
conduct under the circumstances.
Id. at 4.
court explicitly distinguished Minamayor on the
grounds that the specific cause of the fire in that case -
smoking - has been generally recognized as “an act
being purely for the servant's own enjoyment and in no
way in furtherance of the master's business.”
Id. at ...