                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 13 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    JEROME GIRARD,

                Plaintiff-Appellant,

    v.                                                    No. 00-3216
                                                  (D.C. No. 98-CV-2122-GTV)
    TRADE PROFESSIONALS, INC.,                            (D. Kansas)

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before HOLLOWAY , BRORBY , and JONES , ** Circuit Judges.


         Plaintiff-Appellant Jerome Girard ("Girard") filed suit against Defendant-

Appellee Trade Professionals, Inc. based on injuries Girard sustained in a car

accident involving a Trade Professionals employee who had finished work for the

day and was driving “home.” 1 The district court granted summary judgment on

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable Nathaniel R. Jones, United States Circuit Judge for the
Sixth Circuit, sitting by designation.
1
 According to appellant, the employee was staying at a hotel, and according to
appellee he rented a studio apartment. The distinction is immaterial. In this
                                                                     (continued...)
Girard’s respondeat superior and negligent hire claims. For the reasons stated

below, we affirm.

                                         I.

      On May 22, 1997, Roger Anders ("Anders") was driving home from work

when his vehicle and a vehicle driven by Girard collided. Girard sustained severe

injuries. At the time of the accident, Anders was employed by Defendant-

Appellee Trade Professionals, Inc., an employment agency based in Davenport,

Iowa that provides skilled tradesmen to construction contractors in six states.

      Anders, a journeyman electrician, contacted Trade Professionals in early

1997 about employment, and Trade Professionals sent him an application. During

his interview and on the application, Trade Professionals asked if Anders had his

own transportation and could get to job sites, but Trade Professionals did not ask

Anders about his driving record. Anders’ driving record contained multiple

violations. Anders testified that Trade Professionals did not require employees to

own a car.

      In April or May of 1997, DeVries Electric Company contacted Trade

Professionals in order to find an electrician to work on a school construction




1
 (...continued)
opinion, “home” refers to the employee’s lodging in Kansas.

                                        -2-
project in Kansas, and Trade Professionals in turn contacted Anders to fill the

position. Anders went to Kansas and rented lodging.

      Because he was working out of town, Trade Professionals provided him

with what they called a “per diem,” which amounted to three dollars per hour

above his standard wage. 2 Trade Professionals’ customer, the contractor, decides

what the per diem will be. Testimony indicated that the payment of a per diem is

common in this industry and that the money is understood to be paid in order to

compensate for the costs of meals, lodging, etc., which are incurred by employees

who are working out of town. Anders had the same understanding of the purpose

of the per diem. Trade Professionals did not directly pay for any of Anders’

travel-related expenses. Representatives of DeVries and Trade Professionals

testified that Anders’ job duties were that of an electrician, and DeVries said that

Anders’ duties did not include driving.

      While he was in Kansas, Anders generally drove his own truck to work or

got a ride with a co-worker. On the day of the accident, Anders left work after

his shift was over, stopped for gasoline, and proceeded to drive towards his

Kansas lodging. One of his co-workers rode with him. En route, Anders collided

with Girard's vehicle.


2
 The district court pointed out that the use of the term “per diem” is not
technically correct here because this was really an increase in Anders’ hourly
wage, but in order to be consistent with the record it is helpful to use the term.

                                          -3-
                                         II.

      This Court reviews the district court's grant of summary judgment de novo.

See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1159 (10th Cir. 1999). The

Court applies the same legal standard as the district court pursuant to Federal

Rule of Civil Procedure 56(c); thus, the district court’s order should only be

affirmed if “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Fed R. Civ. P. 56(c). In deciding a summary judgment motion, a court

must view the evidence and draw all reasonable inferences in favor of the

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). However, “[w]here the nonmoving party will bear the

burden of proof at trial on a dispositive issue that party must go beyond the

pleadings and designate specific facts so as to make a showing sufficient to

establish the existence of an element essential to that party’s case in order to

survive summary judgment.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125,

1128 (10th Cir. 1998) (internal quotation omitted).

      Federal jurisdiction in this case is based on diversity of the parties pursuant

to 28 U.S.C. § 1332 (2000).




                                         -4-
                                         III.



      The Kansas Supreme Court has held that:

      An employer is liable for the tortious acts of his employee only under
      special circumstances. Special circumstances exist when the
      employee is [1] on the employer's premises, [2] performing work for
      the employer, or [3] using the employer's chattel, [4] when the
      employer voluntarily assumes a duty to control the employee, or [5]
      when the employer negligently retains a known incompetent or unfit
      employee.

Thies v. Cooper, 753 P.2d 1281, 1285 (Kan. 1988) (holding that “[a]bsent special

circumstances, an employer owes no duty to a third party for tortious acts of an

employee who, after consuming alcohol on the employer's premises, leaves the

employer's premises and, while off duty [and driving home from the workplace],

injures a third party”). As the district court pointed out, Girard seeks to impose

liability on Trade Professionals under the second and fifth of these circumstances.

A. Respondeat Superior

      A principal is only liable for the torts of his agent if at the time the tort was

committed the agent was acting within the scope of his authority or employment.

See Brinkley v. Farmers Elevator Mut. Ins. Co., 485 F.2d 1283, 1286 (10th Cir.

1973); Plains Resources, Inc. v. John R. Gable and Empire Oil & Gas Co., 682

P.2d 653, 662 (Kan. 1984). In United States v. Hainline, the Tenth Circuit

explained,


                                         -5-
      Under Kansas law the liability of an employer for the negligent acts
      of his employee is controlled by a determination as to whether, at the
      time of the act complained of, the employee was engaged in the
      furtherance of the employer's business to such a degree that the
      employer had the right to direct and control the employee's
      activities. Liability does not attach to the employer if there is only
      incidental furtherance of the employer's business.

315 F.2d 153, 155 (10th Cir. 1963) (emphasis added) (quoted in Brinkley, 485

F.2d at 1287). Thus, the primary factor to be considered is whether the principal

had control over the agent. "If the principal had no right to direct and control the

agent at the time in question, the principal is not vicariously liable to third parties

for the agent's negligence." Huenik v. Rice Motors, 859 F. Supp. 1398, 1405 (D.

Kan. 1994) (citing Brinkley, 485 F.2d at 1286).

      Accordingly, in Kyle v. Postal Telegraph-Cable Co., the Supreme Court of

Kansas held that “an employer is not liable for injuries caused by an employee

whose ‘actual work for the company had ceased for the day.’” Alderton v. Evans

Electrical Constr. Co., No. 57,926, 1986 Kan. App. LEXIS 945, at *3 (Ct. App.

Kan. Mar. 6, 1986) (quoting, Kyle, 235 P. 116, 117 (Kan. 1925)). Kyle involved a

messenger who was riding his own bicycle home after work when he ran into the

plaintiff. 235 P. at 116-17. At the time of the accident, the messenger was

carrying reports to be delivered on the next work day. Id. at 117. The court held

that the messenger was not “acting in the conduct of his master’s business” or, in

other words, “within the scope of his employment” because:


                                           -6-
      actual work for the company had ceased for the day. He was free to
      go where he desired. He could use his own mode and route of travel.
      The defendant no longer controlled his movements. He might choose
      any route he desired to go home, or he might not go home at all.


Id.

      Kyle is similar to the case at bar and its reasoning is instructive. Here,

Anders’ shift was over. He was under no instruction to go to his home and he had

no duty to perform on the way. He was free to go wherever he pleased, by

whatever form of transportation he desired, and to do whatever he wanted. Thus,

he was no longer under the control of his employer, and he was not furthering

Trade Professionals’ business. Therefore, Trade Professionals cannot be liable

for the accident, and the district court properly granted summary judgment for

Trade Professionals. 3


3
 Similar to the idea expressed in   Kyle , numerous courts have held that employers
are not generally liable for the acts of their employees on the employees’ way to
and from work, and the rule has come to be known in various jurisdictions as the
“going and coming rule.”      See Christopher Vaeth, Annotation, Employer’s
Liability for Negligence of Employee in Driving His or Her Own Automobile      , 27
A.L.R.5th 174 (2000); Orgeron v. McDonald , 639 So. 2d 224, 227 (La. 1994)
(“Because an employee usually does not begin work until he reaches his
employer’s premises, his going to and coming from work is generally considered
outside the course of his employment unless he has a duty to perform en route.”)
Plaintiff presents several arguments and cites numerous cases from a variety of
jurisdictions in an attempt to persuade us that the going and coming rule would
not apply in this case. After careful consideration, we find that the cases cited are
distinguishable either because they are workers’ compensation cases or because
they have key factual dissimilarities to the case at bar, and we hold that the
                                                                        (continued...)

                                         -7-
B. Negligent Hiring

      Under Kansas Law, "[a] master may be liable for injuries to a third person

which are the direct result of the incompetence or unfitness of his servant where

the master was negligent in employing the servant or in retaining him in

employment when the master knew or should have known of such incompetence

or unfitness of the servant." Plains Resources, Inc. v. John R. Gable and Empire

Oil and Gas Co., 682 P.2d 653, 662 (Kan. 1984) (quoting Balin v. Lysle Rishel

Post No. 68, 280 P.2d 623 (Kan. 1955). 4 In Schmidt v. HTG, Inc., the Kansas

Supreme Court recently explained this cause of action as follows.

      In order to find an employer liable for negligently hiring or retaining
      an employee, there must be some causal relationship between the
      dangerous propensity or quality of the employee, of which the
      employer has or should have knowledge, and the injuries suffered by
      the third person; the employer must, by virtue of knowledge of the
      employee's particular quality or propensity, have reason to believe
      that an undue risk of harm exists to others as a result of continued
      employment of that employee; and the harm which results must be
      within the risk created by the known propensity.

3
 (...continued)
circumstances present in this case do not warrant an exception from the going and
coming rule. In short, none of plaintiff's arguments persuades us that there is a
genuine issue of material fact as to whether during Anders' commute from work
he was furthering Trade Professionals' business to such a degree that his employer
had control over his activities.
4
 An employer’s direct liability for negligent hiring is independent from the
vicarious liability of an employer under the doctrine of  respondeat superior . See
Magnum Foods, Inc. v. Continental Casualty Co. , 36 F.3d 1491, 1500, n. 8, 9
(10th Cir. 1994); Marquis v. State Farm Fire & Casualty Co.    , 961 P.2d 1213,
1225 (Kan. 1998).

                                        -8-
961 P.2d 677, 680, Syl. para. 10 (Kan. 1998).

      In Schmidt, the court surveyed Kansas cases involving claims of negligent

hire and found that “liability normally only attaches to acts occurring at the

employer's business location or committed during the conduct of the employer's

business.” Id. at 680, Syl. para. 9. The court determined that:

      In each of the Kansas cases upon which liability of the employer was
      predicated, the existence of a duty to the injured party was based on
      actions against a customer or co-worker which took place on the
      working premises during the time employment services were
      normally rendered. In none of such cases was the employee not
      acting in the course of employment, nor was the injurious action
      removed from the employer's premises or without any nexus to the
      employer's operations.

Id. at 695 (emphasis added); see also Goforth v. Office Max, No. L97-2972, 1999

Va. Cir. LEXIS 120 (Va. Cir. Ct. Apr. 16, 1999) (citing Schmidt and collecting

cases supporting the idea that there should be a connection between the fact of

employment and the plaintiff’s injury in order to invoke liability for negligent

hiring). Therefore, the court said that none of the cases,


      should be unduly extended to find that a duty comes into existence
      whereby an employer must ascertain the detailed history of every
      employee, whether criminal or not, and terminate the employment of
      an individual who is performing acceptable services and is clearly
      not unfit or incompetent, but who does pose some degree of risk due
      to previous actions.




                                         -9-
Id. Accordingly, the Schmidt court held that an employer restaurant was not

liable for negligently hiring a male employee who took a female former employee

home from a social gathering at a bar and killed her.

      Although the facts of Schmidt are quite different from those in the case at

bar, the underlying rationale is clearly applicable. The court in Schmidt decided

that the case law did not “provide a sufficient basis for us to impose upon an

employer the obligation to be legally liable and responsible for the illegal acts of

employees which occur at social settings away from the place of employment . . .

.” Id. In the case at bar, Anders did not get as far as a social gathering; however,

like the situation in Schmidt, Anders was on his own time. He was merely using

his own truck to transport himself home. The actions at issue took place away

from the place of business, and he was not carrying out his employer’s business.

Thus, there was no “nexus to the employer’s operations.” Id. Based on the

Kansas Supreme Court’s refusal to impose liability for negligent hire where the

employee is acting without a nexus to the employer’s business, we affirm the

district court’s grant of summary judgment on this issue.

      For the foregoing reasons, we AFFIRM the district court’s order granting

summary judgment.




                                         -10-
       Entered for the Court



       Nathaniel R. Jones
       Circuit Judge




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