                                          No. 120,866

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          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.




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        Appeal from Cherokee District Court; FRED W. JOHNSON JR., judge. Opinion filed January 10,
2020. Affirmed.


        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.




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                         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. Long
was injured in the collision.


         Houser was later reimbursed for his travel on February 24, 2017—the day of the
crash.


         Long sued Houser and the State. The State filed a motion for summary judgment,
arguing that the State could not be liable for Houser's accident because Houser was not
acting within the scope of his employment while he was traveling from Topeka to his


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home in Columbus. The district court granted the State's motion for summary judgment,
finding that Houser was not within the scope of his employment during his drive home.


          Long appeals.


                                           ANALYSIS

          Generally, a state sovereign cannot be sued without its consent. Commerce Bank
of St. Joseph v. State, 251 Kan. 207, 213-14, 833 P.2d 996 (1992) (state immune unless it
has consented to be sued or waived its immunity). Kansas has done so by statute, with a
few statutorily enumerated exceptions. Under K.S.A. 2018 Supp. 75-6103(a), the State
"shall be 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."


          The district court found Houser was not acting within the scope of his
employment. Long disagrees. So he has sought appellate review of the district court's
finding. When, as here, there is no factual dispute, we review the order granting summary
judgment de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013).


          The question on appeal is whether Houser was acting within the scope of his
employment when he drove to his home in Columbus the day after the legislative session
ended.


Vicarious liability

          Long is seeking damages from the State under the theory of vicarious liability.
"Vicarious liability is a term generally applied to legal liability which arises solely



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because of a relationship and not because of any actual act of negligence by the person
held vicariously liable for the act of another." Leiker v. Gafford, 245 Kan. 325, 355, 778
P.2d 823 (1989). Vicarious liability is also called imputed negligence or respondeat
superior. Nash v. Blatchford, 56 Kan. App. 2d 592, 608, 435 P.3d 562, rev. denied 310
Kan. ___ (September 9, 2019).


       Our Supreme Court has noted that the justification for vicarious liability is that the
losses caused by an employee's tortious or bad acts are placed on the enterprise or the
employer engaged in that enterprise as a cost of doing business. Bright v. Cargill, Inc.,
251 Kan. 387, 407, 837 P.2d 348 (1992). If the employer is engaged in an enterprise, that
may ultimately harm others, it is the employer who is best able to bear the financial
burden of liability and pass on the costs of it. Bair v. Peck, 248 Kan. 824, 830, 811 P.2d
1176 (1991). In other words, it is a deliberate allocation of risk.


       "It is elemental that every person conduct his [or her] business so as not to cause injury to
       others, and if he [or she] conducts business through others, he [or she] is bound to
       manage them so third persons are not injured by the others while they are doing the
       principal's business within the scope of their authority. The doctrine is a 'fiction of the
       law,' not favored in this state, which is limited to master/servant (employer/employee)
       and joint enterprise relationships. These are relationships in which the potential
       respondents have sufficient control and responsibility for the actions of others to justify
       holding them liable for their actions. [Citations omitted.]" Brillhart v. Scheier, 243 Kan.
       591, 593, 758 P.2d 219 (1988).


As a result, to apply this fiction of the law, we must make sure that the employer is
exercising sufficient control over the employee to justify holding the employer liable. In
other words, was the employee acting within the scope of his or her employment? See
K.S.A. 2018 Supp. 75-6103(a).




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Determining whether an employee is acting within the scope of his or her employment

       Generally, whether an employee is acting within the scope of his or her
employment is a question of fact. But if the facts of the case lead only to one reasonable
conclusion, the court can decide the issue as a matter of law. Wayman v. Accor North
America, Inc., 45 Kan. App. 2d 526, Syl. ¶ 3, 251 P.3d 640 (2011). Such is the case here.


       Our Supreme Court has explained that to determine whether a state employee is
acting within the scope of his or her employment courts consider "(1) whether the act by
the employee was done for the employee's personal benefit or in furtherance of the state's
business; (2) whether there was express or implied authority to perform the act in
question; and (3) whether the employee's act was reasonably foreseeable by the State."
Commerce Bank of St. Joseph, 251 Kan. at 215. "The liability of the State . . . depends
. . . upon whether the employee, when the employee did the wrong, was acting in the
prosecution of the State's business and within the scope of the employee's authority, or
had stepped aside from that business and done an individual wrong." 251 Kan. at 215.
The statute also limits the State's liability to "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). This makes sense. To hold otherwise could subject the sovereign to
liability in more circumstances than a private individual—greatly enhancing its liability.
This provision ensures that the State can raise all the same defenses as a private person
could, no more and no less.


       A common area of debate when it comes to whether someone was acting within
the scope of his or her employment when a motor vehicle collision is concerned, is
whether the employee is acting in furtherance of the employer's business when the
collision occurs. We have only one Kansas Supreme Court case that addresses such a
situation, one factually very similar to this case—albeit with a collision between a
bicyclist and a pedestrian.


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       A messenger boy for Postal Telegraph was riding his bicycle home from work
when he ran into a pedestrian, causing injury. Kyle v. Postal Telegraph-Cable Co., 118
Kan. 300, 235 P. 116 (1925). Like this case, Kyle turned on whether the messenger boy
was within the scope of his employment at the time of the collision. The court held that
the boy was not within the scope of his employment because his "actual work for the
company had ceased for the day." 118 Kan. at 302. The boy "was free to go where he
desired" and "could use his own mode and route of travel." 118 Kan. at 302. As the court
noted, the employer "no longer controlled his movements." 118 Kan. at 302. While the
boy had company reports in his possession, the employer did not exert any control over
what he did on his way home. The court reasoned that "carrying . . . the report was
merely incidental to his going home." 118 Kan. at 302. Because the boy was not within
the scope of his employment after he left work, the company was not liable for the
collision. 118 Kan. at 302. This finding is not inconsistent with the Supreme Court's
three-part test in Commerce Bank of St. Joseph. The boy was not acting in furtherance of
the telegraph company's business when he was riding home.


       Although Kyle is the only Kansas Supreme Court case that addresses vicarious
liability of an employer when an employee is traveling home from work, this court
addressed it in Mulroy, 29 Kan. App. 2d at 767, as it relates to an employee traveling to
work. Dennis Mulroy sued Duane Olberding and Western Resources, his employer, for
damages related to his injuries sustained in a collision with Olberding.


       Our court found that the issue was not whether the employee had reached the work
location; instead it is "whether the employee, while traveling to or from the workplace,
was under the control of the employer." 29 Kan. App. 2d at 767. The court found that
Olberding was acting within the scope of his employment so Western Resources could be
found vicariously liable. 29 Kan. App. 2d at 768-69. It reasoned that Western Resources
controlled Olberding at the time of the accident. The company had sent him to a different
location that day than his normal work location, and he was on company time when the


                                             7
collision occurred. Western Resources exercised control over Olberding by firing him for
operating a vehicle while under the influence of alcohol during working hours and for his
failure to report the crash to the company. 29 Kan. App. 2d at 768.


       Mulroy also dovetails with Commerce Bank of St. Joseph and Kyle. The focus
must be on whether the employee was acting in furtherance of the employer's business. A
key factor is the amount of control exercised over the employee by the employer. It is
simply another way of asking whether the employee was acting within the scope of his or
her employment when the bad act took place.


       The State asks us to apply what is known as the "going and coming" rule to the
vicarious liability equation. The going and coming rule precludes an employee from
recovering from a workers compensation claim when the employee is merely going to or
coming from work. The rule has a statutory basis, beginning at least as early as 1913, in
the Kansas Workers Compensation Act, K.S.A. 44-501 et seq. See Sedlock v. Mining Co.,
98 Kan. 680, 681, 159 P. 9 (1916).


       In general, the Act requires that the employer pay for any injuries suffered by an
employee that arise out of and in the course of his or her employment. K.S.A. 2018 Supp.
44-501b(b). But certain injuries are excluded from coverage. The language of the statute
regarding the definition of "arising out of and in the course of employment" has remained
unchanged since 1913.


               "The words, 'arising out of and in the course of employment' as used in the
       workers compensation act shall not be construed to include injuries to the employee
       occurring while the employee is on the way to assume the duties of employment or after
       leaving such duties, the proximate cause of which injury is not the employer's
       negligence." K.S.A. 2018 Supp. 44-508(f)(3)(B).




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       Even before the Act's codification in 1913, the presumption that someone going to
or returning from work was not acting within the course of his or her employment was a
judicially created rule "universally developed" by courts in workers compensation cases.
Chapman v. Victory Sand & Stone Co., 197 Kan. 377, Syl. ¶ 1, 416 P.2d 754 (1966). The
rationale behind the going and coming rule is that when someone is driving to 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. Craig v. Val Energy, Inc.,
47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012).


       But the workers compensation cases recognize that there could be situations when
travel was an essential part of employment so that it furthers the purposes of the
employer. In those cases, injuries would be covered by workers compensation. See Craig,
47 Kan. App. 2d at 168. When travel becomes an intrinsic part of the job it is an element
of employment. Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668
(2006). As we pointed out in Craig, "the analysis is really whether travel has become a
required part of the job such that the employee actually assumes the duties of
employment from the moment he or she leaves the house and continues to fulfill the
duties of employment until he or she arrives home at the end of the workday." 47 Kan.
App. 2d at 168.


       We do not see any difference in the analysis between the going and coming rule in
the workers compensation context and the analysis for vicarious liability under
Commerce Bank of St. Joseph, Kyle, and Mulroy which focused on whether the employer
exercised control over the employee during the trip to and from work. Typically, an
employee would not be furthering the business of the employer when going to and
coming from work.


       This court came to the same conclusion, even if in dicta, in Ullery v. Othick, No.
112,469, 2017 WL 3837218, at *5 (Kan. App. 2017) (unpublished opinion). In Ullery,


                                             9
the district court was tasked with determining whether a health aide was employed by a
particular business. If she was, the business might have been vicariously liable for the
health aide's negligence for causing a collision that killed her patient on the way home
from a training session. Although the court found that the health aide was not an
employee of the business, it opined that even if she were the result would not change.


       "As a general rule, an employer is not liable under Kansas law for an employee's
       negligence while the employee is traveling to or from the job. That's known as the ['going
       and coming'] rule—and it makes sense because the employee isn't acting within the scope
       of employment while coming to or going away from the jobsite." 2017 WL 3837218, at
       *5.


       The district court and our court reasoned that the business had no right to control
the aide's actions in going to or coming from the training session. Our court focused on
the fact that the aide was free to go wherever she wanted after the meeting and that she
even stopped for fast food on the way home. 2017 WL 3837218, at *5. This was a clear
application of the going and coming rule to a vicarious liability tort claim.


       And finally, 20 years ago, Federal District Judge G. Thomas VanBebber came to
the same conclusion. In Girard v. Trade Professionals, Inc., 50 F. Supp. 2d 1050, 1053
(D. Kan. 1999), aff'd 13 Fed. Appx. 865 (10th Cir. 2001) (unpublished opinion), he noted
that Kyle was still good law and although "the Kansas Supreme Court has not expressly
used the phrase 'going and coming rule' in the context of vicarious tort liability," it would
do so—as have most other state supreme courts.


       For these reasons, we have no hesitation finding that even though the Kansas
Supreme Court has not used the magic words "going and coming rule" in the tort context,
it has applied and will continue to apply the going and coming rule to third-party tort
liability claims as a means to determine whether an employee is acting within the scope
of his or her employment. See Kyle, 118 Kan. at 301-02.

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       So next, we must apply the rule to the facts here to see if Houser was acting within
the scope of his employment—in furtherance of the business of the state—when he left
Topeka to return home.


Houser was not acting within the scope of his employment as he returned home from
Topeka.

       Houser was returning home from work at the time of the crash. The going and
coming rule, on its face, applies to the situation. But as this court explained in Craig, the
real question is whether the travel was so integral to the employment that the travel was
an assumption of the duties of employment. See 47 Kan. App. 2d at 167-68.


       From the facts provided here, Houser cannot be said to have been within the scope
of his employment while he traveled home. The most important question is how much
control the employer had over the employee while the employee was traveling. See Kyle,
118 Kan. at 302 (noting employer "no longer controlled" the employee's movements);
Mulroy, 29 Kan. App. 2d at 767 ("[T]he test for whether respondeat superior applies in
travel situations is whether the employee, while traveling to or from the workplace, was
under the control of the employer.").


       Here, the State exerted minimal control over Houser during his travels. Long is
correct that Houser had to live in his district and be present in Topeka to work, but those
requirements do not control how Houser travels between the two locations. See Kan.
Const. art. 2, § 4. Houser had the choice of leaving the same day the session ended, or he
could have stayed all weekend. He had complete discretion on when he would leave
Topeka.


       This was not a situation like the one this court confronted in Craig, where the
employee had to pick up fellow workers and arrive at a specified location at a specified



                                             11
time. See 47 Kan. App. 2d at 170. We held that Craig, who was on his way to work, was
within the scope of his employment at the time of his collision because he was
reimbursed for his mileage to and from work, received a per diem reimbursement for
going to work, was given a bonus for each crew member that arrived with him to work,
and would not have been hired if he could not drive and transport his crew. 47 Kan. App.
2d at 170. Craig had no permanent worksite, and the employer was receiving a benefit
from the transportation arrangement. This court held that because Craig's time traveling
was an essential part of his employment, he was entitled to workers compensation
coverage. 47 Kan. App. 2d at 171.


       Unlike Craig, the State had a more generalized requirement for Houser—he had to
live in his home district and be in Topeka for work. How and when he met those
requirements was up to him. The fact that Kansas reimburses Houser's mileage weighs in
favor of Long's argument that Houser was within the scope of his employment when he
was traveling. But the overall reimbursement scheme cuts against any exertion of control.
The State has fixed-mileage rates, and it only reimbursed Houser for one trip to Topeka
and one trip back to his home at the fixed rate. See K.S.A. 2018 Supp. 75-3203(a)-(b).
There is no indication that the State sought to control what route Houser used to return
home. In fact, there was no incentive for the State to do so because Houser would be
reimbursed the same amount no matter what route he took. See K.S.A. 2018 Supp. 75-
3203(b). But see K.S.A. 2018 Supp. 75-3203(e) (allowing additional reimbursement for
parking, turnpike, and bridge tolls).


       If the employer is not exerting some form of control over the travel, it cannot be
said that the employer is benefiting from the travel more than the standard benefit an
employer receives by having employees commute to work. See Craig, 47 Kan. App. 2d at
167-68. By the time Houser was returning home, his actual work for the State was
complete. See Kyle, 118 Kan. at 302. The fact that state representatives must work in
Topeka and live in the district that elected them does not place them in a situation unlike


                                            12
what many employees in all walks of life face. He was doing no more than countless
other employees do every day—returning home. Representatives may travel between
work and home using their "own mode and route of travel." See 118 Kan. at 302. The fact
that some representatives' commutes may be longer than the ordinary employee is
immaterial to the fact that each representative is merely traveling to work or home.


       Finally, Long claims that a state representative's immunity from arrest while
traveling to or from Topeka weighs in favor of a finding that the State controls the
representative's travel. We disagree. Long is correct that a representative enjoys certain
immunities while traveling to or from the legislative session. While the immunity places
a traveling state representative in a different position than most employees heading to or
from work, it does not change the fact that representatives may travel in the manner of
their choosing without direction from the State, so long as they arrive at work on time.


       The district court did not err in granting the State's motion for summary judgment.
The State is only liable for the negligence of an employee "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). The State's liability depends, in part, on whether the employee was
acting in the furtherance of the State's business and within the scope of his or her
authority. Commerce Bank of St. Joseph, 251 Kan. at 215. But the State will only be
liable if a private person in the same situation would be liable. K.S.A. 2018 Supp. 75-
6103(a). Because a private employer would not be liable for the employee's negligence in
this situation—going to and coming from work—neither is the State liable for Houser's
negligence. See K.S.A. 2018 Supp. 75-6103(a).


       Based on the undisputed facts, Houser was not within the scope of his employment
as he returned home from work. Summary judgment therefore was proper.


       Affirmed.


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