BY THE COURT
going and coming rule instructs that when an employee is
driving to or from work, he or she is subjected only to the
same risks or hazards that the public faces while driving.
The risks therefore are not causally related to the
going and coming rule is applicable to third-party tort
liability claims as part of the calculus of whether an
employee is acting within the scope of his or her employment.
State legislators are generally not acting within the scope
of their employment when they drive home from Topeka at the
end of the legislative session, even though the state
reimburses them for their travel.
from Cherokee District Court; Fred W. Johnson Jr., judge.
C. Byerley, of Law Offices of McKay & Byerley, of Kansas
City, Missouri, and Shelly C. Dreyer, of Sticklen &
Dreyer, P.C., of Joplin, Missouri, for appellant.
M. Laue, deputy solicitor general, Dwight R. Carswell,
assistant solicitor general, and Derek Schmidt, attorney
general, for appellee State of Kansas.
Arnold-Burger, C.J., Leben and Schroeder, JJ.
governmental entity is "liable for damages caused by the
negligent or wrongful act or omission of any of its employees
while acting within the scope of their employment under
circumstances where the governmental entity, if a private
person, would be liable under the laws of this state."
K.S.A. 2018 Supp. 75-6103(a). One of the most important
factors used to determine whether an employer is liable for
the negligence of his or her employee while the employee is
traveling is "whether the employee, while traveling to
or from the workplace, was under the control of the
employer." Mulroy v. Olberding, 29 Kan.App.2d
757, 767, 30 P.3d 1050 (2001).
Representative Michael Houser was returning home the day
after the legislative session closed for a break. On his
drive home he struck James Long's vehicle and injured
Long. The state reimbursed Houser for his travel on the day
of the accident.
sued Houser and the State. Long argued the State was
vicariously liable for Houser's negligence because Houser
was within the scope of his employment at the time of the
collision. The district court ruled against Long, finding
that Houser was not within the scope of his employment. Long
and Procedural Background
February 2017, Houser was a state representative for the
State of Kansas. Houser lived in Columbus, Kansas. As a state
representative, Houser was required to be present in Topeka
during legislative sessions.
provides its state representatives a salary and a per diem.
The per diem can be used for lodging and meals. The State
also provides representatives funds to pay for their travel
to and from Topeka. Representatives often spend the night in
Topeka after a day's session-due to weather or time of
day-and return to their homes the next day. Similarly,
representatives often spend the night in Topeka before the
session starts. The nights before a session and after a
session are covered by the per diem allowance provided
February 23, 2017, the Legislature recessed, and Houser chose
to spend the night in Topeka and return to Columbus the
following morning. On the morning of the 24th, after eating
breakfast, Houser returned home in his personal vehicle. He
took his usual route and only stopped to use the restroom and
get refreshments. According to Houser, he would have done the
same thing if he had returned on the night of the 23rd.
way home, Houser crossed the center line and struck
Long's vehicle. ...