Bingham et al v. Insight Communications Midwest, LLC
MEMORANDUM OPINION AND ORDER; 1)Def, Insight Communications Midwest, LLC' 7 Motion to Dismiss is GRANTED; 2)Plas, Deborah and Harold Bingham's claims against Def, Insight Communications Midwest, LLC are DISMISSED WITH PREJUDICE. Signed by Judge David L. Bunning on 10/12/2012. (LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 12-113-DLB
DEBORAH AND HAROLD BINGHAM
MEMORANDUM OPINION AND ORDER
INSIGHT COMMUNICATIONS MIDWEST, LLC
*** *** *** ***
Deborah and Harold Bingham bring this negligence action against Insight
Communications Midwest, LLC to recover damages stemming from a car wreck involving
Ms. Bingham and Scott Justice, an alleged “business invitee” of Insight. In short, the
Binghams allege that Insight hosted a golf outing and party in May 2011 where alcohol was
provided free-of-charge. One of Insight’s employees, Shelly Mueller, organized and
attended the event, and consumed alcohol throughout the day. At the end of the evening,
Mueller realized she was too intoxicated to drive home, so she asked Justice to drive her.
On the way to Mueller’s residence, Justice allegedly failed to yield to Ms. Bingham’s vehicle
causing an accident. The Binghams attempt to hold Insight liable for that accident.
However, for reasons explained below, Insight’s relationship to the accident is simply too
tenuous to provide any legal basis for recovery, and therefore Insight is not liable to the
This matter is before the Court on Insight Communication’s Motion to Dismiss (Doc.
# 7), which has been fully briefed (Docs. # 9, 10, 11). On October 10, 2012, the Court held
oral argument on Insight’s Motion. Justin Lawrence appeared on behalf of Plaintiffs
Deborah and Harold Bingham; Brian Gudalis appeared on behalf of Defendant Insight
Communications Midwest, LLC. The hearing was recorded by Official Court Reporter Lisa
Wiesman. At the conclusion of the hearing, the Court ordered the Motion submitted. By
this Memorandum Opinion and Order, the Court grants Insight’s Motion to Dismiss.
II. FACTUAL BACKGROUND
On May 12, 2011, Insight held a golf outing in the Northern Kentucky area for its
employees, business partners, and customers. Following the golf outing, Insight also
sponsored an event at Barleycorn’s Restaurant in Florence, Kentucky. According to the
Complaint, Insight supplied alcohol free-of-charge to all who attended both events and
encouraged its consumption.
Shelly Mueller, an Insight employee, took part in organizing the events on that day,
and attended the golf outing and event at Barleycorn’s as part of her employment. The
Binghams allege that Mueller consumed alcohol throughout the day and was “under the
influence of alcohol” by 6:00 p.m. that evening. At approximately 6:10 p.m., Mueller
decided it was time to head home to her two children. Realizing that she was too
intoxicated to drive, she asked Scott Justice, a “business invitee” of Insight, to drive her
home. Justice agreed, and the two left Barleycorn’s in Mueller’s Mercedes Benz.
Justice pulled out of the Barleycorn’s parking lot onto Old Toll Road in Florence,
Kentucky. After driving a few hundred feet, Justice attempted to turn left onto U.S.
Highway 42. As he did so, he crashed Mueller’s Mercedes Benz into the vehicle driven by
Ms. Bingham. A police report from the incident stated that the Mercedes Benz failed to
yield the right-of-way to Bingham’s vehicle. The Complaint also alleges that Justice was
not licensed to drive in any state at the time of the accident. Notably, however, the
Complaint does not allege that Justice ever consumed alcohol on May 12, 2011, or that
he was otherwise impaired.
Deborah and Harold Bingham filed the instant action against Insight to recover
damages they suffered as a result of the accident. Deborah alleges that she suffered
physical injuries and property damage.
She also alleges that she has suffered a
permanent diminution in her economic earning capacity and may lose her job as a result
of the physical and mental injuries she sustained. Based on Deborah’s physical and
mental injuries, Harold alleges that he suffers a permanent loss of consortium.
The Binghams allege that each of these injuries were directly and proximately
caused by the “actions, inactions and inadequate conduct” of the “Defendant(s).” (Doc. #
1, at 7). The use of the plural is misplaced, particularly because Insight is the only named
Defendant in this case. Nonetheless, the Binghams allege the following specific conduct
by the “Defendant(s),” which they contend amounts to negligence:
Defendant(s), jointly and/or individually, failed to provide alternative
transportation to their employee/agents and/or as well as their business
Defendant(s), jointly and/or individually, failed to instruct their
employees, agents, and business invitees as to the company’s policy
forbidding drinking of alcohol during business activities;
Defendant(s), jointly and/or individually, failed to provide, promulgate
or employ rules restricting driving by business invitees or agents or employees
post enticement of alcoholic beverages;
Defendant(s), jointly and/or individually, did not provide a pre-departure
breathalyzer for its employees, agents, and/or business invitees;
Defendant(s), jointly and/or individually, failed to place into effect a
rule, policy, or procedure wherein their agents, employees, and/or business
invitees would be transported by a licensed driver upon departure of a
company sponsored event involving alcohol consumption;
Defendant(s), jointly and/or individually, gave cross signals or no
direction whatsoever in seeking to prohibit, control or minimize the mixing of
alcohol consumption with transportation to, during and/or from a company
Defendant(s), jointly and/or individually, placed no limit on alcohol
consumption by its agents, employees, or business invitees at the
Defendant(s) golf outing and subsequent party at Barleycorn’s [on] May 12,
Defendant(s), jointly and/or individually, failed to follow, acknowledge,
or instruct its employees, agents, and/or business invitees relative to the
statutes, laws, and regulations involving driving without a license and
permitting or allowing transport to, form or during company sponsored outings
between clients, agents, employees, and/or other business invitees of the
(Id. at 5-6).
At oral argument, the Binghams clarified that they allege Insight is liable for their
injuries under two legal theories. First, they assert that Insight’s negligence was the
proximate cause of their injuries. Second, they allege that Shelly Mueller negligently
entrusted her vehicle with Scott Justice, and that Insight is liable for her actions under a
respondeat superior theory. However, as explained below, Insight is not liable under either
Standard of Review
Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of
the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair
notice of what the...claim is and the grounds upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
reviewing a Rule 12(b)(6) motion to dismiss, this Court “must construe the complaint in a
light most favorable to the plaintiff, and accept all of [his] factual allegations as true. When
an allegation is capable of more than one inference, it must be construed in the plaintiff’s
favor.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citations omitted). The Court,
however, is not bound to accept as true unwarranted factual inferences, Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), or legal conclusions unsupported
by well-pleaded facts. Teagardener v. Republic-Franklin Inc. Pension Plan, 909 F.2d 947,
950 (6th Cir. 1990). Furthermore, pro se complaints are held to less stringent standards
than those drafted by attorneys. Wagenknecht v. United States, 533 F.3d 412, 415 (6th
Cir. 2008) (quoting Malone v. Colyer, 710 F.2d 258, 260 (6th Cir. 1983)).
To survive a motion to dismiss, the complaint “does not need detailed factual
allegations,” Twombly, 550 U.S. at 555, but it must present “enough facts to state a claim
to relief that is plausible on its face.” Id. at 570. To satisfy this standard, the complaint
must provide “more than labels and conclusions [or] a formulaic recitation of the elements
of a cause of action.” Id. at 555. The “[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
The Complaint alleges insufficient facts to establish that Insight
Although they list eight separate bases for their negligence claim, the Binghams
essentially allege that Insight was negligent in two respects: (1) Insight failed to monitor
and control the consumption of alcohol by its employees and guests; and (2) Insight failed
to provide or otherwise ensure that employees and guests who were intoxicated had an
alternative means of transportation from the event. As a result of these failures, the
Binghams assert that Mueller became intoxicated and was “unable to reasonably calculate
the dangers of allowing an unlicensed business invitee to operate her motor vehicle at the
conclusion of [the] business event.” (Doc. # 9 at 3). The Binghams contend that these
“actions, inactions and inadequate conduct were the legal and proximate cause of
Plaintiff(s) damages.” (Doc. # 1 at 7).
In its Motion to Dismiss, Insight argues that it did not have a legal duty to the
Binghams to monitor the amount of alcohol consumed by its employees and guests, nor
did it have a duty to provide alternative transportation to its intoxicated guests. The
Binghams respond that Insight did, in fact, have both duties. In asserting this legal
principle, the Binghams fail to cite any Kentucky law, but cite only to cases from other
jurisdictions. Moreover, at oral argument, the Binghams contended that Kentucky’s limited
case law on this issue was inapplicable to this case. Specifically, the Binghams argued
that Kentucky law has only addressed the liability of “social hosts,” but has yet to address
the liability of an employer who provides alcohol to employees as part of a business event.
Ultimately, while cases from other jurisdictions may be persuasive, this Court’s
determination is controlled by Kentucky law. Although Kentucky law is sparse in this area
of negligence jurisprudence, it does address the issues presented in this case.
Duty to monitor and control the consumption of alcohol
The Kentucky Supreme Court first addressed the liability of those who provide
alcohol to their guests in the 2005 case, Grand Aerie Fraternal Order of Eagles v.
Carneyhan, 169 S.W.3d 840 (Ky. 2005). The Court began with the general proposition that
“an actor whose conduct has not created a risk of harm has no duty to control the conduct
of a third person to prevent him from causing harm to another.” Id. at 849. Simply put,
individuals are generally not liable for their nonfeasance or failure to act. Id. However, the
Court acknowledged that a duty to control a third person might arise where “a special
relation exists between the actor and the third person.” Id. In determining whether a
special relationship exists, the Court emphasized that the “alleged tortfeasor’s ability to
control the person causing the harm” is of primary importance. Id. at 851. The Court then
cited an employer/employee relationship as a “special relationship” that would potentially
create a duty to act because “the employer has a real means of control over the employee
which, if exercised, would meaningfully reduce the risk of harm.” Id. at 852.
The defendant’s ability to control the alleged tortfeasor does not, by itself, create a
duty to control the tortfeasor. As the Kentucky Court of Appeals stated, “‘the foreseeability
of the injury [also] defines the scope and character of a defendant’s duty.’” Wilkerson v.
Williams, 336 S.W.3d 919, 923 (Ky. App. 2011) (quoting Norris v. Corrections Corp. of
America, 521 F. Supp. 2d 586, 588 (W.D. Ky. 2007)). In fact, “‘[t]he most important factor
in determining whether a duty exists is foreseeability.’” Id. (quoting Pathways, Inc. v.
Hammons, 113 S.W.3d 85, 89 (Ky. 2003)).
The Kentucky Court of Appeals has twice applied this foreseeability inquiry in the
social host context. In Wilkerson v. Williams, the court considered whether a social host
was liable for its drunken guest who punched another guest in the face. Wilkerson, 336
S.W.3d at 923. The court held that the social host was not liable in that circumstance
because it was not foreseeable that a drunken guest would punch another guest in the
face. Id. Similarly, in Martin v. Elkins, the Kentucky Court of Appeals considered whether
a social host negligently allowed intoxicated minors to leave the premises. Martin v. Elkins,
– S.W.3d – , No. 2011-CA-862-MR, 2012 WL 3762419, at *1 (Ky. App. Aug. 31, 2012).
In Martin, a homeowner allowed minors to consume alcohol at his residence. Id. One of
the intoxicated minors left the residence and got in a fight with another minor, causing
injury. Id. The Court of Appeals held that the ensuing fight was not foreseeable to the
social host, and therefore the social host owed no duty to the injured minor. Id. at *3.
The Court must determine whether Insight owed the Binghams a duty of care in this
instance. Whether a party has a duty of care is a question of law. See Mullins v.
Commonwealth Life Insurance Co., 839 S.W.2d 245, 248 (Ky. 1992). Insight, as the
employer, certainly had a special relationship with Mueller, an employee, that could
potentially create a duty to prevent Mueller from causing harm to third parties. The
Kentucky Supreme Court recognized the employer’s unique ability to exercise effective
control over its employees in Carneyhan. See Carneyhan, 169 S.W.3d at 851. However,
as Wilkerson and Martin make clear, the Court’s analysis does not end there; it must turn
to the foreseeability of the Binghams’ injuries. The Complaint alleges that Insight served
or encouraged Mueller to become intoxicated. Once intoxicated, Mueller asked an
unlicensed driver to take her home; however she was unable to appreciate the dangers of
allowing the unlicensed driver to drive her home because of her intoxication. In turn, the
unlicensed driver failed to yield the right-of-way and collided with the plaintiffs’ vehicle,
causing injuries. Despite the Binghams’ contentions, this injury was certainly not the
foreseeable result of Insight’s failure to monitor Mueller’s alcohol consumption. Because
a duty only applies when the injury is foreseeable, Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky.
1999), and the manner in which the Binghams were injured was not foreseeable, Insight
owed no duty to the Binghams in this case.
The cases cited by the Binghams do not compel a different conclusion. At oral
argument, the Binghams argued that Chastain v. Litton Systems, Inc., 694 F.2d 957 (4th
Cir. 1982) supports their position that Insight was directly negligent. Applying North
Carolina law, the Chastain Court recognized a distinction between the liability of a social
host who serves alcohol to its guests and the liability of an employer who serves
employees alcohol in furtherance of its business interest. Id. at 961. Under North Carolina
common law, a social host is not liable for the actions of its intoxicated guests. Id. at 960.
However, an employer may be liable for the actions of its intoxicated employees “if it failed
to exercise ordinary care in furnishing, or permitting its employees to furnish, alcoholic
beverages to [an employee] knowing that [she] has become intoxicated.” Id. at 962. The
Binghams argue that Kentucky law has not addressed a business’s liability under these
circumstances, and therefore Chastain must guide the Court’s analysis. The Court
Contrary to the Binghams’ contention, Chastain does not compel the Court to allow
the Binghams to proceed on their direct negligence claim. First, North Carolina law, as
outlined in Chastain, is inconsistent with Kentucky law.
As Kentucky court’s have
recognized, a “social host” might be liable for the actions of its intoxicated guests so long
as the host had some means of control over the guest and the manner of the third party’s
injury was foreseeable. See, e.g., Wilkerson, 336 S.W.3d at 923. The Kentucky Supreme
Court has cited the employer/employee relationship as one example where the “host” might
Carneyhan, 169 S.W.3d at 851.
Simply put, Kentucky courts have not
recognized North Carolina’s distinction that “social hosts” are never liable, while employers
might be liable. For that reason, Chastain is inapplicable.
Even if Chastain was consistent with Kentucky law, the Complaint fails to plead
sufficient facts to show that Insight was negligent. According to the Chastain Court, an
employer is liable “if it failed to exercise ordinary care in furnishing, or permitting its
employees to furnish, alcoholic beverages to [an employee] knowing that [she] has become
intoxicated.” Id. at 962. Here, the Complaint does not allege that Insight served Mueller
alcohol knowing that she had become intoxicated. Instead, the Complaint states that
Mueller was intoxicated at 6:00 p.m. and left Barleycorn’s at 6:10 p.m. There are no
allegations that Mueller was served a drink during that ten minute interval, or at any other
time when Insight knew Mueller was intoxicated.
Therefore, these allegations are
insufficient to hold Insight liable under the law announced in Chastain.
The Binghams also rely on two Washington cases, Dickinson v. Edwards, 716 P.2d
457 (Wa. 1986) and Halligan v. Pupo, 678 P.2d 1295 (Wa. 1984), for their position that
Insight was negligent. However, neither of these cases are applicable here. In Halligan,
the Washington Supreme Court held that if an “injured party pleads and proves that alcohol
was furnished to an obviously intoxicated person, the furnisher may be found liable for the
injuries and damages proximately caused by the intoxicated consumer.” Halligan, 678
P.2d at 1297. In Dickinson, the Washington Supreme Court extended this rule and stated
that the furnisher is liable if it “knew or should have known in the exercise of reasonable
care, that the drinker was intoxicated.” Dickinson, 716 P.2d at 819. Moreover, the
important inquiry is whether the intoxicated individual was served alcohol when she was
obviously intoxicated. Id.
Here, the Complaint does not allege that Mueller was ever
furnished alcohol once she became intoxicated, and it certainly does not allege that she
was served alcohol when she was obviously intoxicated. Instead, it states only that she
knew she was intoxicated at 6:00 p.m. and left at 6:10 p.m. As a result, these allegations
do not amount to negligence under Halligan and Dickinson.
The cases cited by the Binghams are also factually distinguishable for an additional
reason. In each of the cases, the courts considered whether an employer/social host was
liable for an intoxicated employee/guest who later drove a vehicle and injured a third party.
Here, it was Justice, a guest who never consumed alcohol that was driving at the time of
the accident. Mueller, the intoxicated employee, was only potentially negligent to the
extent she entrusted her vehicle in Justice. None of the cases cited by the Binghams have
recognized liability under these circumstances. The Binghams have not cited a single case
holding an employer liable for furnishing alcohol to an employee which causes the
employee to negligently entrust her vehicle with third party who later causes an accident.
As a result, the Binghams have failed to show that Insight owed them a duty under a
Kentucky law. Accordingly, the negligence claim against Insight shall be dismissed.
Duty to ensure that employees and guests had a safe means of
transportation from Insight’s business function
In their Complaint, the Binghams assert that Insight had a duty to ensure that its
intoxicated guests and employees had a safe means of transportation home. They further
allege that Insight failed to act on this duty which proximately caused their injuries. Insight
argues that no such duty exists as a matter of law. The Binghams appear to concede this
point as they do not argue or cite any case law in their Response that such a duty exists.
Upon review, Kentucky case law appears silent on this issue.
The Court finds no other jurisdiction that creates an affirmative duty for social hosts
to provide their intoxicated guests with safe transportation. In fact, of those jurisdictions
that have decided the issue, they have uniformly refused to recognize such a duty. See,
e.g., Whittaker v. Jet-Way Inc., 394 N.W.2d 111 (Mich. Ct. App. 1986) (affirming summary
judgment on claim that the defendant breached duty to provide alternative transportation
to its invitees who were too intoxicated to safely operate an automobile because no such
duty exists under Michigan law); DeBolt, et al. v. Kragen Auto Supply, Inc., 182 Cal. App.
3d 269 (Cal. Ct. App. 1986). Instead, where jurisdictions impose some duty on social
hosts, that duty is limited to preventing intoxicated guests from causing harm to third
parties either by monitoring their consumption of alcohol or preventing them from driving.
See, e.g. Millross v. Plum Hollow Golf Club, 413 N.W.2d 14, 25 (Mich. 1987) (holding that
“the special relationship between employer and employee does not of itself require the
employer to protect third parties from off-premises liability, either by supervising the
consumption of alcohol or providing alternate transportation); Wiener v. Gamma Chapter
of Alpha Tau Omega Fraternity, 485 P.2d 18 (Or. 1971) (holding that social host had duty
to refuse to serve alcohol to intoxicated guest); Kelly v. Gwinnell, 476 A.2d 1219, 1214
(N.J. 1984) (recognizing a duty not to furnish alcohol to guest who is known to be
intoxicated and will thereafter be operating a motor vehicle); Pirkle v. Hawley, 405 S.E.2d
71,74-75 (Ga. App. 1991) (same). Ultimately, jurisdictions appear unwilling to impose an
affirmative duty on social hosts to provide alternative transportation to their intoxicated
The Court sees no reason why Kentucky would deviate from this uniform
approach. As a result, Insight did not owe the Binghams a duty to provide its intoxicated
guests with alternative transportation.
The Complaint alleges insufficient facts to hold Insight liable for Shelly
Mueller’s alleged negligence
The Binghams assert that Insight, as the employer, is liable under the doctrine of
respondeat superior for the negligence of its employee, Shelly Mueller. Under Kentucky
law, an employer is vicariously liable for the tortious actions of an employee committed in
the course and scope of employment. Papa John’s Int’l, Inc. v. McCoy, 244 S.W.3d 44,
50 (Ky. 2008). Applying this doctrine requires two independent inquiries: (1) whether the
employee committed a tortious act; and (2) “whether the employee . . . was acting within
the scope of [her] employment at the time of [her] tortious act.” Osborne v. Payne, 31
S.W.3d 911, 915 (Ky. 2000). Here, the Complaint fails to show that Mueller acted within
the scope of her employment when she committed the allegedly tortious act.
“The question of whether an employee’s conduct is within the scope of employment
is a question of law.” Booker v. GTE.NET LLC, et al., 350 F.3d 515, 518 (6th Cir. 2003).
Here, the Court must ask whether Mueller was acting within the scope of her employment
when she negligently permitted Justice to drive her home. Under Kentucky law, the focus
is whether Mueller was acting to further Insight’s interest at that time. See Patterson v.
Blair, 172 S.W.3d 361, 369 (Ky. 2005); Easterling v. Man-O-War Automotive, Inc., 223
S.W.3d 852, 855 (Ky. App. 2007). If, however, Mueller acted “from purely personal
motives . . . which [were] in no way connected with [Insight’s] interests, [s]he is considered
in the ordinary case to have departed from [her] employment.” Papa John’s Int’l, Inc. v.
McCoy, 244 S.W.3d 44, 52 (Ky. 2008).
Applying this motive-centered test, Mueller was acting solely out of self interest
when she asked Justice to drive her home. As the Binghams state in their Complaint, at
approximately 6:00 p.m. on May 12, 2011, Mueller “knew she was ‘under the influence of
alcohol,’ unable to drive herself and needed to go home to her children.” (Doc. # 1 at 3)
(emphasis added). Because she was so intoxicated, the Complaint alleges that she
permitted Justice “to drive [her] Mercedes Benz automobile for the stated purpose of taking
[her] to her home residence in Crescent Springs, Kentucky.” (Id.) (emphasis added). This
was entirely a “personal and private trip” which had no connection with Insight’s business.
See Easterling v. Man-O-War Automotive, Inc., 223 S.W.3d 852, 855 (Ky. App. 2007).
Simply put, Mueller’s had completed her work-day when she left Barleycorn’s; her only
motivation in having Justice drive her vehicle was to go home to her children for the
Kentucky case law supports the conclusion that Mueller was acting outside of the
scope of her employment. In 1918, the Kentucky Court of Appeals established that an
employee is no longer acting within the scope of her employment when she ends her
workday and drives home. Keck’s Adm’r v. Louisville Gas & Electric Co., 200 S.W. 452,
453 (Ky. 1918). This is particularly so if the employee drives home without intending to
perform any duty on behalf of the employer. Id. Subsequent cases have routinely applied
this principle of law in holding that an “an employee . . . commuting home from work is
considered to be acting outside the scope of employment.” Bays v. Summitt Trucking,
LLC, 691 F. Supp. 2d 725, 732 (W.D. Ky. 2010) (applying Kentucky law). For example,
in Kuener v. Nat’l Cash Register, a federal district court applied the rule announced in
Keck’s and held that an employee was acting outside the scope of his employment when
he caused an accident as he was driving home from work for the evening. 43 F.Supp. 62,
63 (W.D. Ky. 1942). Thus, the law is clear that when an employee departs work for the
evening, as Mueller did here, she is no longer acting within the scope of her employment.
As a result, Insight cannot be liable for any of Mueller’s actions once she departed
Despite Kentucky’s well-settled law, the Binghams ask the Court to apply North
Carolina law in determining whether Mueller was acting within the scope of her
employment. In Chastain, an employee became intoxicated at a party hosted by his
employer and subsequently caused an accident. The district court ruled that the employee
was not acting within the scope of his employment when he was driving his vehicle and,
therefore, his employer could not be liable for his actions. Chastain, 694 F.2d at 962. The
Fourth Circuit reversed the district court’s finding and held that “the critical time for
determining whether the doctrine of respondeat superior should be applied” is when the
employee became intoxicated and whether he was acting in furtherance of his employer’s
interest at that time. Id. Although this is the law in North Carolina, the Binghams have
cited no authority to suggest that Kentucky would follow this approach. In Kentucky, the
relevant focus is on the time the alleged tort was committed – here, Mueller’s alleged
negligent entrustment. See Osborne, 31 S.W.3d at 815. This Court, exercising diversity
jurisdiction, sees no justification for extending Kentucky’s respondeat superior
jurisprudence in this instance.
The Binghams assert an additional reason why Mueller was still acting within the
scope of her employment. Notwithstanding the conclusion that Mueller was acting out of
personal motives when she left Barleycorn’s, the Binghams contend that it was
“foreseeable by Insight that its employee/agent, Mueller, would be required as part of her
assigned duties to travel from her work station to the golf course and then subsequently
to Barleycorn’s, and lastly back to her work station or home.” (Doc. # 9 at 4). However,
this argument is misguided for several reasons. First, it is inconsistent with Kentucky law
which clearly states that an employee is no longer acting within the scope of her
employment when she departs work and goes home for personal reasons. See Kech’s,
supra. Second, the Complaint never mentions that Mueller worked out of her home or
otherwise suggests that she left Barleycorn’s to return home for work-related reasons.
Instead, as discussed above, the Complaint explicitly states that Mueller left Barleycorn’s
for the sole purpose of going home to her children. This did not further the business of
Insight. Finally, and most importantly, Kentucky no longer follows the “foreseeability” test,
whereby the Court considers whether an employee’s tortious conduct was foreseeable to
the employer in determining whether it was taken within the employee’s scope of
employment. In Patterson v. Blair, the Kentucky Supreme Court explicitly denounced the
foreseeability rule it previously announced in Citizens Finance Co. v. Walton, 239 S.W.2d
77 (Ky. 1951). In doing so, the Court adopted the motive-centered test discussed above.
As a result, the Binghams’ foreseeability argument is without merit. Because Mueller was
acting out of purely personal motives when she asked Justice to drive her home, she was
no longer acting within the scope of her employment, and Insight is not liable for her
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
Defendant Insight Communications Midwest, LLC’s Motion to Dismiss (Doc.
# 7) be, and is hereby GRANTED; and
Plaintiffs Deborah and Harold Bingham’s claims against Defendant Insight
Communications Midwest, LLC are hereby DISMISSED WITH PREJUDICE.
This 12th day of October, 2012.
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