 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mulroy v. Olberding9/14/2001
Appeal from Nemaha District Court; J.D. EULER, judge.
Affirmed in part, reversed in part, and remanded.
Dennis J. Mulroy sued Duane L. Olberding and Western Resources, Inc. (Western) alleging that on April 15, 1997, Olberding operated his vehicle while under the influence of alcohol, causing an automobile accident and resulting in personal injuries and damages to Mulroy. Mulroy claimed Olberding was an employee of Western and that at the time of the accident, Olberding was working within the scope of his employment with Western. Olberding admitted in his answer that at the time of the accident, he was working within the scope of his employment with Western. Western denied this allegation in its answer and averred Mulroy's injuries and damages were proximately caused by his own negligence. Western and Mulroy both filed motions for summary judgment on whether the doctrine of respondeat superior applied. The uncontroverted facts from both motions are as follows.
Olberding normally worked in a laboratory at Western's facility known as the Jeffrey Energy Center in St. Mary's, Kansas. On the night before the accident, Olberding took a Valium and went to a bar, where he consumed beer for several hours. When he awoke the next morning, Olberding told his wife that he was going to call Western and tell them he was sick. She advised him that he was not going to call in sick for a hangover. That morning, Olberding was to report to Western's facility located in Lawrence, Kansas.
As Olberding drove toward Lawrence, his vehicle hit the rear end of Mulroy's vehicle. Olberding asked Mulroy if he was okay. After Mulroy asked Olberding to call the police twice and then got out of his car, Olberding got in his vehicle and left. Olberding then drank 2 to 3 ounces of bourbon and Pepsi Cola which was in his vehicle. The highway patrol stopped Olberding; the results of Olberding's blood alcohol test was .10.
After the accident, Olberding called and advised his supervisor that he had been involved in an accident and wanted to take a sick day. When Olberding denied being hurt, he then requested a vacation day. Western had a policy that possession or consumption of alcohol or drugs not medically authorized while at work, or reporting to work under the influence of alcohol or nonmedically authorized drugs, was prohibited. Olberding was aware of Western's policy. Western terminated Olberding because on April 15, 1997, Olberding was "under the influence of alcohol in a vehicle during working hours; [Olberding] was involved in a motor vehicle accident."
Western's motion also averred that Olberding told his supervisor and the operations superintendent at Western that he was not on his way to work when the accident occurred; rather, he was going to St. Francis Hospital to see his drug/alcohol rehabilitation counselor. In his response, Mulroy admitted Olberding made this statement, but it was inconsistent with other portions of his testimony and was not dispositive of the issue. Olberding responded that he made the statement, hoping it would help him keep his job with Western.
Mulroy's motion also averred that if Western had not specifically directed Olberding to report to its Lawrence Energy Center on the morning of the accident, Olberding would not have been in the location where the accident took place. The district court asked Western's counsel at the hearing if Olberding's employment was terminated because he was under the influence of alcohol while driving the vehicle during his working hours, violating company policy, and if Western had directed Olberding to report to work in Lawrence. Western's counsel responded, "Yes, Sir."
The distr
Page 1 2 3 4 5 6 7 8 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|