402 S.W.3d 556
Ky. Ct. App.2013Background
- Ivey, Golden Hawk truck driver, assaulted Carberry with a cheater bar at a Knights Inn parking lot in Florence, KY while Sexton was present.
- Carberry sued Knights Inn and Golden Hawk for damages; Golden Hawk moved for summary judgment arguing no agency liability for intentional torts and off-duty conduct.
- Golden Hawk’s safety director-affidavit claimed (i) background checks showed no violence propensity, (ii) off-duty/outsider activities not within employment scope, and (iii) Ivey was terminated after the incident.
- Trial court granted summary judgment, applying Flor-Shin to hold no negligent hiring/retention or training/supervision liability given Ivey’s role as a trucker and the attack occurring outside employment scope.
- Carberry petitioned for relief; discovery issues were raised but not dispositive; the court later issued amended final order; appeal followed.
- This appeal challenges the trial court’s summary-judgment decision on negligent hiring/retention and negligent training/supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did genuine issues exist on negligent hiring/retention? | Carberry argues Golden Hawk knew or should have known Ivey was unfit. | Golden Hawk relied on background check; Ivey’s role did not place Carberry at risk. | No; Flor-Shin standard met; no unreasonable risk from hiring Ivey. |
| Did genuine issues exist on negligent training/supervision? | Carberry contends inadequate training/supervision allowed the assault. | No foreseeability; Ivey acted outside employment scope; training could not have prevented. | No; no duty to supervise given lack of foreseeability and scope. |
| Was Golden Hawk liable due to scope of employment or off-duty conduct? | Carberry claims Ivey’s actions were within Golden Hawk’s control or supervision. | Attack was outside scope; Golden Hawk did not place Carberry in danger. | No; attack occurred in public, not in furtherance of Golden Hawk’s business. |
| Was discovery incomplete or precluded by procedural posture affecting summary judgment? | Carberry needed more time to depose witnesses and discover Ivey’s history. | Judgment proper despite discovery status; facts show no basis for liability. | No; summary judgment affirmed despite discovery posture. |
| Was there a requirement for criminal-background checks under regulations cited? | Golden Hawk failed to perform a criminal background check; negligence justified. | Regulations do not require criminal history checks for hiring truck drivers. | No; Flor-Shin controls; no duty to perform criminal background check. |
Key Cases Cited
- Flor-Shin v. Oakley, 964 S.W.2d 438 (Ky.App.1998) (negligent hiring/retention requires unfit applicant and unreasonable risk)
- Stalbosky v. Belew, 205 F.3d 890 (6th Cir.2000) (working in special position or access can create risk)
- Booker v. GTE.net LLC, 350 F.3d 515 (6th Cir.2003) (liability for negligent training/supervision requires known risk)
- Wood v. Southeastern Greyhound Lines, 302 Ky. 110 (1946) (master liable only for acts in course/scope of employment)
- Suter v. Mazyck, 226 S.W.3d 837 (Ky.App.2007) (summary-judgment standard requires opportunity to develop facts)