Somrak v. Kroger Co.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MARY A. SOMRAK,
Plaintiff - Appellant,
v. No. 19-3106
(D.C. No. 2:17-CV-02480-CM)
KROGER CO., (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and BACHARACH, Circuit
Judges.
_________________________________
This suit grew out of a slip and fall in a Dillon’s grocery store.
Rather than sue the entity that leased the grocery store (Dillon Companies,
Inc.), however, Ms. Mary Somrak sued that entity’s parent company
(Kroger Co.). Kroger sought summary judgment, arguing that it had not
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. We have thus decided the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
owed a duty to Ms. Somrak. The district court agreed and granted summary
judgment to Kroger. We affirm.
In addressing this grant of summary judgment, we engage in de novo
review, applying the same standard that governed in district court. Matter
Utah v. Njord, 774 F.3d 1258, 1262 (10th Cir. 2014). Under that standard,
we view the evidence and reasonable inferences in the light most favorable
to Ms. Somrak and determine whether a reasonable factfinder could find in
her favor. Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1224
(10th Cir. 2014). Viewing the evidence and inferences in this light, we
apply Kansas law, which requires Ms. Somrak to present enough evidence
for a factfinder to reasonably infer that Kroger had owed her a duty.
Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 916 (10th Cir. 2005).
Ms. Somrak concedes that parent companies ordinarily incur no duty
for a subsidiary’s negligence. Despite this concession, she argues that
Kroger could incur liability because it undertook operation of the grocery
store and employed the individuals working there.
Ms. Somrak bases this argument on § 324A of the Second
Restatement of Torts, which has been adopted in Kansas. Grice v. CVR
Energy, Inc., 921 F.3d 966, 970 (10th Cir. 2019). Section 324A creates
liability for an entity that undertakes another entity’s duty to third persons
and negligently causes physical harm. Restatement (Second) of Torts §
324A.
2
To trigger § 324A, Ms. Somrak must show that Kroger affirmatively
and intentionally undertook operation of the store. See Grice, 921 F.3d at
970-71; see also Gooch v. Bethel A.M.E. Church, 792 P.2d 993, 998 (Kan.
1990) (“The threshold requirement for the application of § 324A is that the
defendant must undertake, gratuitously or for consideration, to render
services to another.”). But this undertaking must extend beyond “ordinary
parental oversight in managing the business and operations of its
subsidiaries.” Grice, 921 F.3d at 973.
Kroger urged summary judgment on the ground that it had provided
only ordinary parental oversight of its subsidiary. In support, Kroger
presented evidence that it had a separate existence from Dillon, that Dillon
had conducted the day-to-day operations of the store, that Dillon bore
responsibility for hiring and firing employees, and that the employee
allegedly responsible for the fall (Brenda Willey) had considered Dillon to
be her employer.
In response, Ms. Somrak pointed to (1) a 2007 judicial admission by
Kroger that it does business in Kansas as Dillon’s stores, (2) Ms. Willey’s
employment forms, which designated her employer as Kroger, (3) Kroger
policies and forms used at the grocery store, and (4) contact from an
insurer for Kroger after Ms. Somrak’s fall. But these pieces of evidence,
even viewed favorably to Ms. Somrak, do not create a reasonable inference
3
that Kroger undertook operation of the grocery store. See Grice, 921 F.3d
at 973; Gooch, 792 P.2d at 1001.
Nor does this evidence suggest that Ms. Willey was an employee of
Kroger. Kansas appellate courts have not yet addressed how to identify
whether an entity or its parent company is an employer. But these courts
have addressed whether an individual is an employee or independent
contractor in cases involving the Kansas Wage Payment Act. In these
cases, Kansas courts have applied twenty factors, addressing whether the
entity has a right to control the individual and the economic realities of the
employment relationship. Craig v. FedEx Ground Package Sys., Inc.,
335 P.3d 66, 74-76 (Kan. 2014) (per curiam). These factors include “the
employer’s right to require compliance with instructions,” “the extent of
any training provided by the employer,” “the degree of integration of the
worker’s services into the business of the employer,” “the existence of a
continuing relationship between the worker and the employer,” “the
employer’s establishment of set work hours,” “the degree to which the
work is performed on the employer’s premises,” “the degree to which the
employer sets the order and sequence of work,” and “whether the employer
has the right to discharge the worker.” Id. at 76.
The parties presented little evidence on these factors. Kroger
presented evidence identifying Dillon as the entity handling employment
decisions for individuals working at the store. In response, Ms. Somrak
4
pointed to employment forms identifying Ms. Willey’s employer as Kroger.
But these forms do not reasonably suggest that Kroger exercised control
over Ms. Willey’s work in the grocery store. 1 And Ms. Somrak has not
identified any other evidence relating to the twenty factors bearing on
status as an employee. Ms. Somrak thus failed to create a genuine dispute
of material fact on Kroger’s right to control Ms. Willey’s work and the
economic realities of her employment.
Because no reasonable factfinder could conclude that Kroger owed a
duty to Ms. Somrak, we affirm the award of summary judgment to Kroger.
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
Ms. Somrak contends that the “primary factor” is the entity’s
“control” over the individual’s performance. Appellant’s Opening Br. at
10.
5