Kevin E. Reardon, Special Administrator, for the Estate of Marilyn K. Parsons, Appellee,
Jon M. King, Defendant, and The Trust Company of Kansas, Appellant.
Kansas, an employer owes a duty of reasonable care under the
circumstances to prevent harm to third parties caused by its
employees when those employees are acting within the scope of
their employment. More particularized articulations of this
duty are disapproved.
of the judgment of the Court of Appeals in an unpublished
opinion filed March 17, 2017.
from Leavenworth District Court; David J. King, judge.
Judgment of the Court of Appeals reversing the district court
is reversed. Judgment of the district court is reversed and
the case is remanded with directions.
N. Wetta, of Foulston Siefkin LLP, of Wichita, argued the
cause, and Darrell L. Warta, of the same firm, was with her
on the briefs for appellant.
Michael P. Crow, of Crow & Associates, of Leavenworth,
argued the cause, and Peter C. Robertson and Dan Heinz, of
the same firm, were with him on the brief for appellee
Marilyn K. Parsons.
Trust Company of Kansas (TCK) employed Jon M. King, a
Kansas-licensed attorney, as a trust officer. TCK had a
policy prohibiting employees from practicing law during
employment. Unbeknownst to TCK, King represented his TCK
client-Marilyn K. Parsons-in legal matters before, during,
and after his employment with TCK. In his capacity as a trust
officer, King would transfer funds from Parsons' TCK
account to her personal account to pay a flat rate legal fee
of $5, 000 per month. Once TCK learned about King's
attorney-client relationship with Parsons, TCK filed a
complaint of suspected elder abuse with the Kansas Department
of Social and Rehabilitation Services and an ethics complaint
with the Kansas Disciplinary Administrator's Office.
investigation by the Kansas Disciplinary Administrator's
Office revealed that Parsons paid King approximately $250,
271.50 in attorney fees during his employment at TCK. As a
result, King voluntarily surrendered his license to practice
law. See In re King, 297 Kan. 208, 300 P.3d 643
(2013). Soon after, Parsons filed a lawsuit against TCK and
King, asserting various theories of liability. The case went
to trial, and a jury found TCK liable for "negligent
training" and King liable for breach of fiduciary duty.
The Court of Appeals reversed the jury's verdict against
TCK, finding the evidence insufficient. Accordingly, the
panel remanded the case with instructions to enter judgment
as a matter of law in favor of TCK.
review, we conclude the district court's instructions
failed to present the jury with an accurate statement of our
negligence law and incorrectly separated Parsons'
negligence claim against TCK into two causes of action. As a
result of these errors, questions of fact remain. We reverse
the Court of Appeals and remand this matter for a new trial
decided on proper instructions.
stage of the litigation, the key facts are procedural and
they are not in dispute. Parsons sued TCK and King seeking
$250, 271.50 in damages plus an additional $12, 111.99 for
loss of income and loss of investment appreciation. After
Parsons amended her complaint several times and each party
filed multiple pretrial questionnaires, the district court
issued a pretrial order describing three separate claims
against TCK: "(1) breach of contract, (2) breach of
fiduciary duty, and (3) failure to properly supervise its
employee, Jon King."
case proceeded to a four-day jury trial. At the close of
Parsons' case-in-chief, TCK moved for judgment as a
matter of law on all claims against TCK. After hearing oral
argument, the court granted TCK's motion for judgment as
a matter of law on part of Parsons' breach of contract
claim. The court then summarized Parsons' remaining
claims as follows:
"What I have is-is the-the claims that plaintiff has
asserted against TCK that survived is their breach of
contract claim, partially, one of their specifications of
breach of contract, I've ruled that there's not
evidence to support there was a breach.
"[S]o, breach of contract, breach of fiduciary duty,
negligent representation, and negligent supervision."
district court proceeded to finalize its jury instructions
and verdict form. The instructions included a claim of
"negligent supervision and training" against TCK:
"INSTRUCTION NO. 18
"Negligent supervision and training claim against
Trust Company of Kansas
"The plaintiff, Marilyn Kay Parsons, claims the
defendant, Trust Company of Kansas, failed to adequately
supervise and train Jon M. King by the following:
"(1) Failing to train and orient Jon M. King that he was
prohibited from practicing law for TCK clients while ...