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Carberry v. Golden Hawk Transportation Co.

Court of Appeals of Kentucky

June 21, 2013

RICHARD CARBERRY APPELLANT
v.
GOLDEN HAWK TRANSPORTATION CO. APPELLEE [1]

APPEAL FROM BOONE CIRCUIT COURT HONORABLE JAMES R. SCHRAND II, JUDGE ACTION NO. 09-CI-02072

BRIEFS FOR APPELLANT: Justin L. Lawrence

BRIEF FOR APPELLEE: Judd R. Uhl

BEFORE: LAMBERT, NICKELL, AND TAYLOR, JUDGES.

OPINION

NICKELL, JUDGE

Richard Carberry appeals from an order granting summary judgment to Golden Hawk Transportation Company by the Boone Circuit Court. Having reviewed the record, the briefs and the law, we affirm.

This case results from an assault on Carberry by Brian Scott Ivey, [2]who was employed by Golden Hawk as a long-haul trucker. On October 25, 2008, while carrying a load of steel in Golden Hawk's truck from Arkansas to Ohio, [3]Ivey made a detour to the Knights Inn in Florence, Kentucky, with his girlfriend, Angela Sexton, as a passenger. The purpose of the trip was to allow Sexton to meet Carberry, her ex-husband, to retrieve some of her belongings. When the trio met on the motel parking lot, Ivey and Carberry began arguing about Sexton. Ivey returned to the truck, retrieved a cheater bar, [4] and attacked Carberry, striking him about the head with the implement. Witnesses observed the attack.

On August 27, 2009, Carberry filed a complaint against both Knights Inn and Golden Hawk alleging he suffered a broken neck and other injuries during the assault and incurred $150, 000.00 in medical and other expenses. He alleged Golden Hawk had been negligent in hiring, retaining, training and supervising Ivey, as well as monitoring movement of the rig it had assigned to Ivey. Carberry alleged Knights Inn provided inadequate security for the parking lot on which the assault occurred.

Golden Hawk and Knights Inn filed separate answers. Based on the Driver's Daily Log completed by Ivey, Golden Hawk argued the rig assigned to him was parked in Crestline, Ohio, at the time of the assault and Ivey was off-duty. After only modest discovery, [5] Golden Hawk moved for summary judgment on February 5, 2010, arguing it could not be held liable for an intentional tort committed by an employee; the attack occurred outside the scope of Ivey's work; Carberry had not alleged the attack occurred within the scope of Ivey's work; and Ivey was terminated from employment due to the assault. Accompanying the summary judgment motion was the affidavit of Laina VanBuskirk, Golden Hawk's Safety Director and Human Resource Manager. In her affidavit, VanBuskirk stated in pertinent part:

4. Upon hiring Mr. Ivey in April 2008, all checks required by law were performed on Mr. Ivey's previous employment and his driving record, [6] and no propensity toward violence was indicated.
5. Pursuant to company policy, a truck driver who leaves his truck on business not associated with the delivery of goods on behalf of the company is off the clock and outside the scope of his/her employment.
6. On the date of the alleged incident on October 25, 2008, Mr. Ivey had no business purpose for being present at a Knight's (sic) Inn in Florence, Kentucky.
7. After the alleged incident on October 25, 2008, and because of the alleged incident described in [Carberry's] Complaint, Mr. Ivey's employment with Golden Hawk Transportation Cabinet, has been terminated.

On April 30, 2010, the trial court entered an order awarding summary judgment to Golden Hawk and dismissing all claims against it. Specifically, the trial court found a negligent ...


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