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Certain Underwriters at Lloyd's v. FlightSafety International

United States District Court, D. Kansas

April 11, 2017

Certain Underwriters at Lloyd's, et al., Plaintiff,
FlightSafety International, et al., Defendants.



         Cecil 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. 18).

         The 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).

         In 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).

         Under 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)).

         Whether 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. Kan. 1982)).

         FlightSafety 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.

         In 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 frightening contemplation.

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).

         But 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.

         The 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 ...

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