United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
August 29, 2018, plaintiff Steven Jones was injured in a
motor vehicle accident with Saul Hurtado in Pratt County,
Kansas. At the time, Jones on his motorcycle and Hurtado in
his pickup truck were both driving to their places of
employment. Jones has brought the present action for
negligence against both Hurtado and his employer, Blattner
Energy. Both Jones and Blattner have moved for summary
judgment on the issue of whether Hurtado's employer is
liable for Hurtado's actions under the doctrine of
respondeat superior. The court holds that under long-standing
Kansas law, the employer is not legally responsible for
Hurtado's actions at the time of the
Summary judgment is proper where the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show there is no genuine issue as to
any material fact, and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). In
considering a motion for summary judgment, the court must
examine all evidence in a light most favorable to the
opposing party. McKenzie v. Mercy Hospital, 854 F.2d
365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment
beyond a reasonable doubt. Ellis v. El Paso Natural Gas
Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving
party need not disprove plaintiff's claim; it need only
establish that the factual allegations have no legal
significance. Dayton Hudson Corp. v. Macerich Real Estate
Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
resisting a motion for summary judgment, the opposing party
may not rely upon mere allegations or denials contained in
its pleadings or briefs. Rather, the nonmoving party must
come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant
probative evidence supporting the allegation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the
moving party has carried its burden under Rule 56(c), the
party opposing summary judgment must do more than simply show
there is some metaphysical doubt as to the material facts.
"In the language of the Rule, the nonmoving party must
come forward with 'specific facts showing that there is a
genuine issue for trial.'"
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P.
56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and
the rule should be interpreted in a way that allows it to
accomplish this purpose. Celotex Corp. v. Catrett,
477 U.S. 317 (1986). The court excludes from the following
findings all assertions by the parties which are not fairly
supported in the cited factual record.
Energy is in the business of constructing and maintaining
wind turbines and was under contract to do work on a wind
turbine installation project commonly referred to as
Hurtado is a New Mexico resident who has worked for Blattner
as an installation laborer at various sites since 2017.
Hurtado was temporarily renting a home in Pratt, Kansas while
working on Pratt Wind. It is uncontroverted that Hurtado made
his own living arrangements while working on Pratt Wind.
Blattner Energy did not direct Hurtado on where to live, how
to live, or who, if anyone, to live with.
the workers on Pratt Wind, and all of the workers in
Hurtado's workgroup, normally lived outside Kansas.
job duties involved the construction of wind turbines (or
windmills). He was a tower climber and would climb an
estimated 280 feet high on the towers to perform his work.
Travel or performing errands or business transactions for
Blattner Energy during non-work hours was not within
Hurtado's job duties.
paid Hurtado an hourly wage, and provided a per diem for each
day he worked. Blattner did not direct or control how
Hurtado spent the per diem funds he received. Hurtado
testified, “you could do whatever you want with that
Pratt Wind commenced when employees arrived at what was know
as the “Laydown Yard, ” which was located 10 to
12 miles outside of Pratt. The closest hotels were in Pratt.
required to employees to be at the job site by a specified
time, but it did not control or direct travel to the job
site. Typically, Hurtado's start time was 7:00 a.m. He
would travel to the laydown yard to start work each morning,
where he would attend a safety meeting and then travel into
the field in a company-owned vehicle to work on erecting wind
turbines. His compensation did not begin until he arrived at
the laydown yard for the daily safety meeting. He received no
separate compensation for the time spent travelling to and
accident occurred around 6:30 a.m., before Hurtado arrived at
the Blattner Energy laydown yard and before Hurtado began
earning any wages. Hurtado was driving his own personal
vehicle to work (actually owned or co-owned by or with his
up to Hurtado to make his own travel arrangements to work.
Blattner did not pay mileage reimbursement, fuel,
maintenance, insurance, or other expenses associated with
Hurtado's personal vehicle involved in the subject
accident. Hurtado paid for all fuel, maintenance, and
insurance. Blattner did not direct Hurtado on how to maintain
or operate his personal vehicle.
did not operate or drive a vehicle owned by Blattner, because
he was not “driver qualified” by the company. At
the time of the subject accident, Hurtado was not
transporting any tools, equipment, or materials for Blattner,
and had never done so for Blattner Energy. He had not been
running any errands or performing any business transactions
for Blattner; indeed, he had never done so on his way to
work. Blattner Energy did not direct Hurtado to use a certain
route to get to the laydown yard, did not tell him how to
drive his vehicle, or instruct him to transport co-workers to
and two co-workers (Joel Gonzalez and Guillermo Chaves)
rented a residence in Pratt, and the three drove together to
the Laydown Yard. Hurtado paid the driving expenses with his
per diem allowance.
evidence indicates that Blattner was aware that some
employees shared rides, but it did not require it, or even do
anything in particular to encourage it. The plaintiff points
to the Blattner employment application completed by Hurtado
(like all employees), which indicates “we prefer
applicants who are able to operate a vehicle to transport
co-workers.” But the evidence indicates this preference
related to employees becoming “driver qualified”
(which Hurtado was not) so they could use company vehicles to
transport workers. As indicated ...