Marquis v. State Farm Fire and Casualty Co.6/5/1998
the other had already been admitted wasted judicial resources, engendered confusion, and might allow the admissibility of potentially inflammatory evidence which would be irrelevant to prove any contested issue. 891 S.W.2d at 826.
The rule in McHaffie that once a employer admits liability under respondeat superior the plaintiff may not proceed against the employer on a negligent entrustment or negligent hiring or supervision theory, is the majority rule. See Cole v. Alton, 567 F. Supp. 1084 (N.D. Miss. 1983); Elrod v. G & R Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982); Armenta v. Churchill, 42 Cal. 2d 448, 267 P.2d 303 (1954); Clooney v. Geeting, 352 So. 2d 1216 (Fla. Dist. App. 1977); Willis v. Hill, 116 Ga. App. 848, 159 S.E.2d 145 (1967), rev'd on other grounds 224 Ga. 263, 161 S.E.2d 281 (1968); Wise v. Fiberglass Systems, Inc., 110 Idaho 740, 718 P.2d 1178 (1986); Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655 (1989); Houlihan v. McCall, 197 Md. 130, 78 A.2d 661 (1951).
However, other jurisdictions, including Kansas, have found that an admission that the employee was acting within the scope of his or her employment does not preclude an action for both respondeat superior and negligent entrustment or negligent hiring, retention, or supervision. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. at 362 (holding that liability under a negligent hiring, retention, or supervision claim results not because of the employer -employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor); Quinonez on behalf of Quinonez v. Anderson, 144 Ariz. 193, 696 P.2d 1342 (1984); Lim v. Interstate System Steel Div., Inc., 435 N.W.2d 830 (Minn. App. 1989); Clark v. Stewart, 126 Ohio St. 263, 185 N.E. 71 (1933). These cases rest on the proposition that negligent entrustment and negligent hiring, retention, or supervision are torts distinct from respondeat superior and that liability is not imputed but instead runs directly from the employer to the person injured. See Lim v. Interstate System Steel Div., Inc., 435 N.W.2d at 832-33.
Because the torts of negligent hiring, retention, or supervision are recognized in Kansas as separate torts that are not derivative of the employee 's negligence, an admission that the employee was acting within the scope of his or her employment does not preclude an action for both respondeat superior and negligent entrustment or negligent hiring, retention, or supervision. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. at 362. State Farm's admission in this case that Jerry Auck was an employee acting within the scope of his employment at the time of the accident does not prohibit the plaintiffs from maintaining an action based on claims of negligent hiring, retention, or supervision.
Affirmed.
LARSON, J., Concurring and Dissenting: I concur with the majority opinion as to its construction of the settlement agreement and what is said in (1) The Agreement. I also agree with the majority insofar as it relates to Statute of Limitations, Estoppel, and Laches, (3) Factual Basis for Claims of Negligent Hiring, Retention, or Supervision, and (4) Respondeat Superior.
I disagree with and respectfully Dissent from the Conclusion and result of that portion of the majority opinion entitled: (2) Claims of Negligent Hiring, Retention, or Supervision.
I recognize that the provisions of the exclusions in the contractor's policy and the homeowner's policy do not contain the identical language. Because of this differen
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Kansas DUI Attorneys
DUI Lawyers
|