TORTS: Vicarious liability not found in facts of this case; dismissal affirmed against business who exercised no control over driver who was doing a gratuitious errand for the business: BROOKS V. GRAMS, INC. (COA 8/8/2008)

TORTS:  Vicarious liability not found in facts of this case; dismissal affirmed against business who exercised no control over driver
who was doing a gratuitious errand for the business
WINE, JUDGE: This lawsuit arises from a personal injury claim by the
      "Brooks" arising from a car accident against Ferand Dillingham (“Ferand”).
In their complaint, the Brookses named Ferand’s estate; Edith and Farland Dillingham (the owners of the vehicle which Ferand was driving); Grams Inc., d/b/a Gram’s Grocery (“Grams”); and Ferand’s automobile insurance carrier, State Auto Property and Casualty Insurance Company.

Ferand had driven his
      wife Apryl to work. Apryl states that Grams’ owner, Mark Fitzpatrick (“Fitzpatrick”), was in the back preparing the store’s morning breakfast items.  She recalled Fitzpatrick announcing that the store
      was out of sausage.  In response, Apryl offered to have Ferand go to the Wal-Mart in Danville to buy some sausage for the store.  Apryl took $20.00 from the store register, went outside, and made the errand request of her husband. Apryl states that she took the initiative in asking Ferand to go on the errand, and that Fitzpatrick had little to do with it.  Fitzpatrick states that he does not recall any discussion with Apryl about Ferand doing the errand, but Apryl informed him about it afterwards.
The trial court dismissed the claims against Grams who had moved for  summary judgment denying any liability for Ferand’s negligence because it had no agency relationship with him who was simply a "sub agent".
Plaintiff appealed.  COA affirmed.      

The absence of an employment relationship between Grams and Ferand does not preclude a finding that Ferand was acting as Grams’ agent.   Likewise, the fact that Ferand volunteered his services does not preclude a finding that he was acting as Grams’
agent.  However, the question of agency always concerns the nature of the relationship at the time the injury occurred.
The rule of respondeat superior embodies the theory that where one acts through the agency of another, in legal contemplation, he is himself acting and thus is responsible for acts of his agent. “[W]hen an agent fails in any duty which he owes to a third party or the public generally, the principal is responsible for the failure.” Smith v. Smith, 333 S.W.2d 503, 504 (Ky. 1960).
Under such circumstances, an employer is strictly liable for damages resulting from the tortious acts of his employees. Patterson v. Blair, 172 S.W.3d 361, 364 (Ky. 2005).
The right to control is considered the most critical element in determining the principal’s liability for the tortious acts of an   agent. But under the circumstances of this case, the presence of three of the nine factors outlined in,Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756 (Ky.
      1955) is not sufficient to impose liability upon Grams for the Ferand’s negligence. Apart from supplying the money, neither Grams nor Fitzpatrick exercised any control over how Ferand performed the task.
Ferand drove his own vehicle, chose the route he traveled, and could have decided not to complete the errand without any direct consequences from Grams. Grams cannot be liable for Ferand’s negligence in the absence of any showing that it exercised control over him or the instrumentality which caused the injuries. See Shedd Brown Mfg. Co. v. Tichenor, 257 S.W.2d 894, 897 (Ky. 1953).
The test for liability under the doctrine of respondeat superior hinges upon the degree of control which the principal exercises over the agent or sub-agent. The disputed facts do not address this critical issue.
Thus, as a matter of law, Grams cannot be liable for damages caused by Ferand’s negligence, and the trial court properly granted summary judgment for Grams on this issue.
Accordingly, the judgment of the Lincoln Circuit Court is affirmed.

\Digested by Michael Stevens

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