Carberry vs. Golden Hawk Transportation Co.
COA, PUB 6/21/2013
Citing the Flor-Shin two-prong test for negligent hiring and retention:
Flor-Shin identifies the two elements necessary to prove a claim of negligent hiring and retention—an unfit applicant for a particular job and creation of an unreasonable risk of harm by the hiring of that applicant.
In Flor-Shin, an award of summary judgment to a floor maintenance company was vacated because it had hired and placed William Bayes, a man with an extensive criminal record,10 inside a locked K-Mart store with a single female employee whom he sexually assaulted. Here, we agree with the trial court’s application of Flor-Shin and its award of summary judgment. Ivey was hired as a truck driver. A check of his driving history, as required by 49 CFR § 391.25, revealed a few driving violations over a lengthy career but not enough to make him unfit to handle a big rig. Unlike Bayes in Flor-Shin, Ivey’s job with Golden Hawk did not place him alone in an enclosed space with the public and definitely not with Carberry. The attack occurred in the open and in public view..
On the allegation of negligent training and supervision, an employer may be held liable for the negligent supervision of its employees “only if he or she knew or had reason to know of the risk that the employment created.” Booker, 350 F.3d at 517 (quoting Restatement (Second) of Agency § 213 (1958) (Comment & Illustrations)); see also Smith v. Isaacs, 777 S.W.2d 912, 914 (Ky. 1989). On the strength of VanBuskirk’s affidavit, the trial court found Golden Hawk had no reason to suspect Ivey would commit an assault while on the job and went on to find Ivey “acted so outside the normal scope of employment that no reasonable amount of training or supervision could have prevented the attack.” On the facts presented, we agree. The meeting between Sexton, Carberry and Ivey occurred unbeknownst to Golden Hawk and was not in furtherance of Golden Hawk’s business interests. We see no basis upon which Carberry could succeed on a claim of negligent training and supervision.
In Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946), a commercial bus driver stopped his vehicle, alighted and assaulted another motorist. Wood’s attempt to recover damages for the assault from the bus line was thwarted because: the master is liable only for the acts of his servant committed in the course or scope of the latter’s employment and not for the acts of the servant committed by him while not serving the master and outside of the scope of his employment. Hines v. Wall, 194 Ky. 379, 239 S.W. 451. Wood, 302 Ky. at 113, 194 S.W.2d at 82. Just as the bus driver in Wood did not assault the other driver in furtherance of the bus company’s interests, Ivey did not assault Carberry in furtherance of Golden Hawk’s interests. Therefore, the trial court’s order awarding summary judgment to Golden Hawk is affirmed.
