326 S.W.3d 812
Ky. Ct. App.2010Background
- Rivers, ex-UPS employee, had a history of aggressive and threatening conduct at UPS (2004 discipline and termination).
- Rivers later applied to Kroger; Kroger obtained a reference check from UPS which allegedly only verified dates and job title.
- Johnson Estate sues UPS for negligent referral, failure to warn, and negligent misrepresentation arising from UPS’s reference check.
- Jefferson Circuit Court dismissed under CR 12.02 for lack of a legally cognizable duty; dismissal affirmed on appeal.
- Court holds Kentucky does not recognize a duty to warn or a universal duty of care in this context, and finds no special relationship or undertaking by UPS that would create liability.
- Conclusion: dismissal affirmed; no duty recognized unless Kentucky Supreme Court or Legislature changes the law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn future employers about violent history | Estate argues universal duty or special relationship. | UPS argues no duty exists under Kentucky law. | No duty recognized; dismissal affirmed. |
| Existence of a special employer–employee relationship after termination | Estate relies on special relationship to create duty. | No special relationship once employment ends. | No special relationship creating duty found. |
| Undertaking to render services via reference check | UPS undertook to provide services through reference check. | No duty arising from undertaking to render services. | No undertaking to render services found; no duty. |
| Negligent misrepresentation in employee references | Restatement II torts supports negligent misrepresentation. | Kentucky law does not recognize it in this context. | Declines to expand negligent misrepresentation to employee references. |
Key Cases Cited
- Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328 (Ky. 1987) (universal duty of care misinterpreted; limits apply)
- James v. Wilson, 95 S.W.3d 875 (Ky. App. 2002) (duty to warn requires a special relationship; no universal duty)
- Fryman v. Harrison, 896 S.W.2d 908 (Ky. 1995) (no duty to warn in general; special relationship required)
- Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009) (Grayson conceptualization limited; no universal duty of care)
- Weller v. McCauley, 383 S.W.2d 356 (Ky. 1964) (governs standard for CR 12.02 review; duty analysis begins with duty)