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Long v. Houser

Court of Appeals of Kansas

January 10, 2020

James Long, Appellant,
v.
Michael Houser and State of Kansas, Appellees.

         SYLLABUS BY THE COURT

         1. The 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 employment.

         2. 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.

         3. 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.

          Appeal from Cherokee District Court; Fred W. Johnson Jr., judge.

          David 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.

          Brant M. Laue, deputy solicitor general, Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee State of Kansas.

          Before Arnold-Burger, C.J., Leben and Schroeder, JJ.

          Arnold-Burger, C.J.

         A 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).

         State 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.

         Long 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 appeals.

         Factual and Procedural Background

         In 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.

         Kansas 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 legislators.

         On 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.

         On his way home, Houser crossed the center line and struck Long's vehicle. ...


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