Cite as 2024 Ark. App. 491 ARKANSAS COURT OF APPEALS DIVISION I No. CV-23-234
REBECCA SKALA, AS SPECIAL Opinion Delivered October 9, 2024
ADMINISTRATOR OF THE ESTATE OF SIR CHRISTOPHER EARNEST WALKER SKALA, DECEASED, AND APPEAL FROM THE INDEPENDENCE GUARDIAN OF THE ESTATE OF COUNTY CIRCUIT COURT XAVIOR ROBERT DAWSON SKALA, A [NO. 32CV-21-245] MINOR; AND JAMES GARDNER, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF TAMMY GARDNER, HONORABLE HOLLY MEYER, JUDGE DECEASED APPELLANTS
V.
COMFORT SYSTEMS USA, INC.; AND REVERSED AND REMANDED COMFORT SYSTEMS USA (ARKANSAS), INC. APPELLEES
CINDY GRACE THYER, Judge
This case arises from a fatal motor vehicle accident involving a daycare van and a
vehicle driven by an employee of appellee Comfort Systems USA (Arkansas), Inc. It comes
to us as an interlocutory appeal from an Independence County Circuit Court order granting
summary judgment in favor of Comfort Systems USA (Arkansas), Inc., and its parent company, Comfort Systems USA, Inc.1 On appeal, appellants argue (1) that there are
genuine issues of material fact in dispute that preclude summary judgment; (2) that the
circuit court erred in concluding that the going-and-coming rule precluded liability; and (3)
that the circuit court erred in granting summary judgment on appellant’s direct-liability
claims. We reverse and remand.
I. Facts and Procedural History
On September 23, 2021, Cody Conboy, an employee of Comfort Systems Arkansas,
was driving from his home in Greenbrier, Arkansas, to a job site in Ash Flat when the vehicle
he was driving struck a fifteen-passenger van. Tammy Gardner, the driver of the van, was
killed in the collision as was five-year-old Christopher Skala. Christopher’s three-year-old
brother, Xavior, was injured in the accident.
On October 28, 2021, Rebecca Skala,2 the minor children’s mother, filed a complaint
for damages against Conboy for his negligence and against Comfort Systems Arkansas and
Comfort Systems USA, alleging both direct and vicarious liability against them. Her
complaint sought compensatory and punitive damages.
Conboy answered and generally denied the allegations in the complaint. The next
day, he filed answers to requests for admissions propounded by Skala. Relevant to this
1 The companies will be hereinafter referenced individually as Comfort Systems Arkansas and Comfort Systems USA and collectively as Comfort Systems. 2 Skala filed suit in her capacity as special administrator of the estate of Sir Christopher Earnest Walker Skala and as guardian of Xavior Robert Dawson Skala, a minor.
2 appeal, he admitted he worked for Custom Systems Arkansas; denied he was negligent in
the use and operation of the vehicle he was driving on September 23, 2021; and denied he
was liable for the Skalas’ injuries.
The Comfort Systems entities filed a joint answer admitting that the accident
occurred, that Conboy was involved in the accident, and that Conboy was an employee of
Comfort Arkansas “at certain points in time,” but they generally denied the other allegations
contained therein. Comfort Systems then specifically asserted that Conboy was not acting in
the course and scope of his employment with either entity at the time of the motor vehicle
crash. It further admitted that Conboy’s job duties included working at job sites in various
locations and that Conboy had received compensation or reimbursement for travel expenses.
The Comfort Systems entities separately responded to Skala’s requests for admissions.
Relevant to this appeal, in their responses to the requests for admission, both entities denied
that Conboy was negligent in the use and operation of the vehicle he was driving on
September 23, 2021, and denied that Conboy was liable for any injuries sustained. Finally,
both entities denied that Conboy was its employee on September 23, 2021.
On March 24, 2022, Tammy Gardner’s husband, James Gardner,3 filed a separate
wrongful-death action against Conboy for his negligence and against Comfort Systems USA
and Comfort Systems Arkansas, alleging both direct and vicarious liability against them. Like
3 He filed suit in his capacity as special administrator of the estate of Tammy Gardner, deceased.
3 the Skala complaint, Gardner’s complaint sought both compensatory and punitive damages.
Conboy and Comfort Systems answered, reiterating their general denials.
The Gardner case was subsequently consolidated with the Skala case.4
The parties subsequently filed cross-motions for summary judgment. Appellants’
motion against Comfort Systems Arkansas claimed that there was no genuine issue of
material fact as to whether Conboy was acting within the scope of his employment at the
time of the crash. They argued Conboy’s job required him to travel to assigned job sites and
that Conboy had no control over the job assignment. On the day of the accident, Conboy
had been assigned to work at the Emerson factory construction project in Ash Flat. They
argued that Comfort Systems also controlled the time Conboy was to arrive at the location—
7:00 a.m.—and that this time was set regardless of the location of the job site. It was further
undisputed that the only reason Conboy was on that road at the time of the accident was to
travel to the job site.
Additionally, appellants argued that there was no genuine issue of material fact that
Conboy’s trip to Ash Flat was reasonably contemplated as part of his employment and in
furtherance of his employer’s interest. When applying for the job as a welder, Conboy was
asked if he could travel if the job required it, and he was required to sign an authorization
allowing Comfort Systems to obtain his driving record. Another requirement for a first-year
welder was the “ability to travel, as needed, for projects.” In fact, appellants alleged that in
4 The cases were consolidated under the Skala case number. For ease of reading, the Skala and Gardner parties will collectively be referred to as appellants.
4 the months leading up to the collision, Conboy was primarily working at assigned jobs in
Arkadelphia, Ash Flat, and Oklahoma. Given the considerable amount of travel required to
work at those assigned job sites, Conboy considered traveling as part of his job at Comfort
Systems. Because traveling was such an intrinsic part of Comfort Systems’ employees’ jobs,
appellants maintained that Comfort Systems had developed a travel policy (either travel time
or per diem) to pay for travel time for its employees and that travel from an employee’s home
to a job site was contemplated under the company’s travel policy. 5 And while Conboy
received a verbal warning for requesting the per diem instead of travel time on the day of the
accident, there was no evidence that Conboy had actually made that request, and even so,
that fact was irrelevant as to whether he was acting in the scope of his employment at the
time of the collision.
5 The travel policy was as follows:
TRAVEL TIME: The Company recognizes that out of town work can place hardship on employees required to be on site, therefore in order to minimize this employee are eligible for paid drive time of ½ hour per day for distances greater than 40 miles from their home or from the office, whichever is less, or for one hour per day of drive time for distances greater than 50 miles from their home or office, whichever is less. Employees residing greater than 70 miles from the site may be paid $100.00/night per diem or they may decide to commute from their home to the job site in exchange for paid drive time. If the driving distance from an employee’s home address to the job site is greater than 100 miles, they may be paid the time it takes to drive. If an employee accepts per diem they must stay out of town. If it is discovered that an employee is commuting to the site and accepting per diem, this may be grounds for dismissal. The company reserves the right to modify the above options according to the situation. Travel time will be paid at the regular hourly rate and will not count towards a full 40 hour week.
5 In its motion for summary judgment,6 Comfort Systems claimed that Conboy was
not performing an act in furtherance of his employer’s business or in line with his duties at
the time of the accident; thus, he was not acting within the scope of his employment at the
time of the incident. As a result, the doctrine of respondeat superior was inapplicable.
Comfort Systems asserted that Conboy was hired as a welder and that driving to work was
not a part of his official duties—Comfort Systems required only that he arrive on time to
perform his job; the means of getting there was entirely up to Conboy.
Comfort Systems further argued that Arkansas, like other jurisdictions, should adopt
the going-and-coming rule from workers’ compensation cases to preclude respondeat
superior liability. It contended that the rationale for the restriction of liability imposed by
the going-and-coming rule, whether in workers’compensation or tort law, is that the
employee’s commute is not “an act in furtherance of the master’s business or in line with
the servant’s duties.” Comfort Systems further asserted that the fact that Conboy had
violated its travel policy by accepting per diem while still commuting to the job site did not
prevent application of the going-and-coming rule.
Appellants responded that the going-and-coming rule was not controlling. They noted
that Comfort Systems had admitted that no Arkansas appellate court had ever applied the
going-and-coming rule in tort cases, and in fact, the Arkansas Supreme Court had clearly
held in Van Dalsen v. Inman, 238 Ark. 237, 379 S.W.2d 261 (1964), that workers’
6 Conboy moved to adopt the motion for summary judgment filed by Comfort Systems.
6 compensation rules, like the going-and-coming rule, were not applicable to tort cases. They
further argued that Comfort Systems had failed to rebut the proof that Conboy was engaged
in the transaction of business that he had been assigned by Comfort Systems or that his trip
to Ash Flat on the morning of the wreck was reasonably contemplated as part of his
employment and in furtherance of Comfort Systems’ interest.
Appellants reiterated their claim that Comfort Systems was liable for Conboy’s
negligent actions through the doctrine of respondeat superior due, in part, to Comfort
Systems’ business model of sending its employees to remote locations to perform skilled
labor on specific projects and also due, in part, to its travel policy. They also contended that,
if the court found that the going-and-coming rule were to apply, Conboy’s travel fell within
well-established exceptions to that rule. They argued that Conboy was not simply “on his way
to work,” he was on a specific work assignment journeying to an entirely different region of
the State. They argued that when the journey itself is part of the service, the going-and-
coming rule does not apply because persons traveling are generally within the course of their
employment from the time they leave home on a business trip until they return because they
have no fixed place of employment.
Appellant Gardner filed a separate response to Comfort Systems’ motion for
summary judgment, alleging there were controverted facts sufficient to defeat summary
judgment. He claimed that the issue of whether Conboy was “on the job” or “under the
control” of Comfort Systems was controverted, in part, because he was issued a written
warning for violating Comfort Systems’ travel policy, which indicated Comfort Systems’
7 intent to exercise control over out-of-town travel. Comfort Systems also took a direct interest
in safety issues related to travel by its employees, evidenced by its request for release of the
employee’s driving record and its decision to obtain these records. He argued there would
be no grounds for doing so if travel by Comfort Systems employees was not within the scope
of their employment. He further argued that Comfort Systems benefited from a business
model whereby they could deploy their employees to different worksites. He then adopted
the arguments set forth by the Skala appellants in their response to the motions for summary
judgment.
On January 5, 2023, the circuit court issued a letter opinion stating it was denying
appellants’ motion for partial summary judgment as well as Conboy’s motion for summary
judgment. The court, however, stated it was granting Comfort Systems’ motion for summary
On February 21, 2023, the court entered findings of fact and conclusions of law
granting partial summary judgment in favor of Comfort Systems. In granting summary
judgment, the court concluded that Conboy was not acting in the course and scope of his
employment at the time of the accident because Conboy was not engaged in the transaction
of business for Comfort Systems at that time and because his travel was not reasonably
contemplated as part of his employment with Comfort Systems. It further found that
Comfort Systems had no control over Conboy’s travel decisions and did not benefit from
his travel. In so finding, the court applied the workers’ compensation going-and-coming rule,
opining that the Arkansas Supreme Court would likely extend the rule to respondeat
8 superior liability cases because it had become the majority rule in other jurisdictions. The
court determined that when traveling to a job site, Conboy was on his own time. It then
concluded that because Conboy was not acting in the course and scope of his employment
with Comfort Systems Arkansas at the time of the accident, appellants’ direct-liability claims
against Comfort Systems must fail as a matter of law. Likewise, the court found that Conboy
was not an employee of Comfort Systems USA and, thus, that appellants’ direct-liability
claims against it must also fail as a matter of law.
Appellants then sought an Arkansas Rule of Civil Procedure 54(b) certification,
which was granted. This timely appeal followed.
II. Argument
On appeal, appellants argue that the circuit court erred in granting summary
judgment on both their vicarious and direct-liability claims against Comfort Systems.
Summary judgment may be granted only when there are no genuine issues of material fact
to be litigated, and the moving party is entitled to judgment as a matter of law. Greenlee v.
J.B. Hunt Transp. Servs., 2009 Ark. 506, 342 S.W.3d 274. The burden of sustaining a motion
for summary judgment is always the responsibility of the moving party. McGrew v. Farm
Bureau Mut. Ins. Co. of Ark., 371 Ark. 567, 268 S.W.3d 890 (2007). Once the moving party
has established a prima facie entitlement to summary judgment, the opposing party must
meet proof with proof and demonstrate the existence of a material issue of fact. Greenlee,
supra. However, if a moving party fails to offer proof on a controverted issue, summary
9 judgment is not appropriate, regardless of whether the nonmoving party presents the court
with any countervailing evidence. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003).
On appellate review, this court determines if summary judgment was appropriate by
deciding whether the evidentiary items presented by the moving party in support of the
motion leave a material fact unanswered. Greenlee, supra. We view the evidence in the light
most favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party. Id. Our review focuses not only on the pleadings but
also on the affidavits and other documents filed by the parties. Id. However, when there is
no material dispute as to the facts, we determine on review whether “reasonable minds”
could draw “reasonable” inconsistent hypotheses to render summary judgment
inappropriate. Town of Lead Hill v. Ozark Mountain Reg’l Pub. Water Auth., 2015 Ark. 360, at
3, 472 S.W.3d 118, 122. In other words, when the facts are not at issue but possible
inferences therefrom are, the court will consider whether those inferences can be reasonably
drawn from the undisputed facts and whether reasonable minds might differ on those
hypotheses. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Mattox
v. Main Entrance, Inc., 2021 Ark. App. 382.
Here, appellants’ claims were brought under both direct and vicarious-liability
theories. As for their vicarious-liability claims, appellants argue that the circuit court
improperly applied the going-and-coming rule applicable in workers’ compensation cases,
and because there were genuine issues of material fact in dispute as to whether Conboy was
acting within the scope of his employment at the time of the accident, summary judgment
10 was inappropriate. As for their direct-liability claims, appellants assert that Comfort Systems
never moved for summary judgment on their direct-liability claims; therefore, the court
should not have awarded summary judgment on that basis. These will each be addressed in
turn.
A. Vicarious Liability
1. Going-and-coming rule
Appellants claim that the circuit court erred as a matter of law in concluding that the
going-and-coming rule precluded liability because that rule is not applicable outside the
workers’ compensation context. They are correct.
As a general rule in workers’ compensation cases, an employee traveling to and from
the workplace is not within the course of his or her employment. Absolute Care Mgmt. v. Stacy,
2018 Ark. App. 166, 545 S.W.3d 791. Generally, this rule applies to those claimants who
have fixed hours and places of employment and ordinarily prevents an employee from
recovering benefits for an injury sustained while the employee is going to or coming from
his place of employment. Id.; Pratt v. Bentonville, 2021 Ark. App. 184. The rationale for the
rule is that an employee is not within the course of employment while traveling to or from
his job. Absolute Care Mgmt., supra.
In granting partial summary judgment in this case, the circuit court concluded that
the going-and-coming rule in workers’ compensation cases should be extended to respondeat
superior cases and determined that if presented with this issue, the Arkansas Supreme Court
11 would do the same. We disagree, because in Van Dalsen v. Inman, 238 Ark. 237, 242–43, 379
S.W.2d 261, 265 (1964), our supreme court held the exact opposite.
In Van Dalsen, the plaintiff, Inman, was a traveling salesman from Stuttgart. On the
day of the accident, he drove to Little Rock to visit his wife in the hospital. On his way home,
he stopped at his employer’s office in Pine Bluff and left a note regarding work. He then left
for home and the accident occurred. Suit was filed against Inman and his employer, and the
circuit court subsequently entered summary judgment in favor of Inman’s employer.
In analyzing the issue, our supreme court stated:
Appellants have cited us to some workmen’s compensation cases wherein salesmen have been awarded compensation for injuries sustained while returning home, and it is claimed that these cases govern in the case at bar. Such a workmen’s compensation case is Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W.2d 637. But the liability of the Jim Walter Corporation in the case at bar is to be determined by the ‘scope of employment’ cases involving master and servant, and not by the ‘arising out of and in the course of employment’ rule in workmen’s compensation cases. The workmen’s compensation cases are not applicable to a master and servant case, such as in the case at bar.
Van Dalsen, 238 Ark. at 242–43, 379 S.W.2d at 265.
The workers’ compensation case cited by the court in Van Dalsen for the proposition
that workers’ compensations cases did not govern in respondeat superior cases, Frank Lyon
Co., involved the application of the going-and-coming rule. Thus, our supreme court has
spoken on this issue and has already rejected the application of the going-and-coming rule
in respondeat superior cases. We are bound to follow the precedents set by the supreme
court and are powerless to overrule its decisions. Krieger v. State, 2022 Ark. App. 456, 655
S.W.3d 321; Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999).
12 2. Disputed facts precluding summary judgment
Our analysis does not end there, however. This court has held on numerous occasions
that it will affirm the circuit court’s judgment if it reached the right result, even though it
may have announced the wrong reason. See Warr v. Williamson, 359 Ark. 234, 195 S.W.3d
903 (2004); Bright v. Zega, 358 Ark. 82, 186 S.W.3d 201 (2004); Middleton v. Lockhart, 355
Ark. 434, 139 S.W.3d 500 (2003); Dovers v. Stephenson Oil Co., Inc., 354 Ark. 695, 128 S.W.3d
805 (2003). Here, the court held there were no genuine issues of material fact in dispute and
that judgment was appropriate as a matter of law. Thus, the question then becomes whether
there were genuine issues of material fact left to be decided or whether judgment could be
rendered as a matter of law.
Under the doctrine of respondeat superior, an employer may be held vicariously
liable for the acts of its employee if the employee was acting within the scope of his
employment at the time of the incident. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83
(1997). The question of whether an employee is acting within the scope of employment
depends on whether the individual is carrying out the object and purpose of the enterprise
as opposed to acting exclusively in his own interest. Id.; J.B. Hunt Transp., Inc. v. Doss, 320
Ark. 660, 899 S.W.2d 464 (1995). When an overlap of the business and the personal are
present in an employee’s actions, an employer may be vicariously liable under the doctrine
of respondeat superior, depending on the circumstances. Doss, supra. Our supreme court has
held that an employee is not acting within the scope of his duties if his act was “purely
13 personal”; thus, the question of an employer’s liability revolves around whether the
employee’s act was purely personal.
Here, the facts themselves are not in dispute. On September 23, 2021, Conboy was
employed by Comfort Systems Arkansas as a welder.7 He did not have an office or a fixed
location where his services for Comfort Systems Arkansas were to be performed. Rather,
Comfort Systems Arkansas would deploy him to various locations to perform work under its
contracts. As such, traveling was listed as an “additional requirement” of his employment as
a pipe welder, and he was required to authorize and pass a driving-records check as part of
the employment process.8 Finally, Comfort Systems Arkansas, recognizing that out-of-town
work could place hardships on employees required to be on site, created a travel-time policy.
On the other hand, Conboy’s principal duties as a welder had nothing to do with
driving, and there was no evidence that, other than commuting to work, he was required to
drive as part of his employment with Comfort Systems Arkansas. It is further undisputed
7 We note that in its response to appellants’ requests for admissions, Comfort Systems Arkansas denied that Conboy was its employee on that date. However, it does not appear to deny his employment, at least for purposes of its summary-judgment motion. 8 As for Comfort Systems Arkansas’s request for his driving history, the employee policy specifically stated that the employee driving record would be obtained before driving was allowed and would be rechecked annually. It also prevented placement of an employee in a “driving position” if the employee had a DUI or DWI conviction within the previous three years and prohibited the operation of a “company vehicle” if the employee had three moving violations and/or accidents (with no more than one being an accident) within the previous three years. It noted that the foreman would be assigned a company vehicle to be used on the job and solely for the company business.
14 that on the morning of the accident, Conboy’s sole purpose for being on the highway was to
drive to his place of employment.
Here, while there is no material dispute as to the facts, “reasonable minds” could
draw “reasonable” inconsistent hypotheses from them. Reasonable minds could conclude
that Conboy was a traveling employee because he had no fixed place of employment, was
required to travel to whatever job site his employer specified, was compensated for his time
in doing so, and was required to have a clean driving record as a condition of his
employment. Reasonable minds could also conclude, however, that the clean driving record
was not a condition of his employment as a welder and applied only in the event he was
given a driving position and that his place of employment, while somewhat variable, was
fixed for the duration of each individual project; thus, travel was not a condition of his
employment. Because reasonable minds could reach different conclusions as to the
inferences to be drawn from the facts, summary judgment was inappropriate.
B. Direct Liability
The court also granted summary judgment to Comfort Systems on appellants’ direct-
liability claims. Appellants had claimed that Comfort Systems Arkansas had a pattern and
practice of overworking its employees, rendering them unsafe to drive and a hazard to the
traveling public. They further claimed that Comfort Systems Arkansas failed to have policies
and procedures in place to prevent its drivers from driving in an unsafe manner. The circuit
court found that because Conboy was not acting in the course and scope of his employment
with Comfort Systems Arkansas, appellants’ direct-liability claims failed as a matter of law.
15 More specifically, the court found that because Conboy’s job did not include driving and he
was not on the job at the time of the accident, there can be no direct liability for failing to
“train, supervise, monitor, and control” Conboy. As to Comfort Systems USA, the circuit
court found that it was not Conboy’s employer and that the claims against it thus failed as a
matter of law.
Appellants correctly note in their brief that the Comfort Systems never moved for
summary judgment on their direct-liability claims. When ruling on a motion for summary
judgment, a circuit court cannot grant relief beyond that prayed for in the motion. Young v.
Staude, 280 Ark. 298, 657 S.W.2d 542 (1983); Berry v. Slack, 2023 Ark. App. 415, 677 S.W.3d
222; see also Matsukis v. Joy, 2010 Ark. 403, 377 S.W.3d 245 (reversing the circuit court’s sua
sponte grant of summary judgment). Thus, we hold that the circuit court erred when it sua
sponte granted summary judgment to Comfort Systems.
Reversed and remanded.
HARRISON, C.J., and GRUBER, J., agree.
Denton & Zachary, PLLC, by: Joe Denton, Justin C. Zachary, and Andrew Norwood; and
Murphy, Thompson, Arnold & Skinner, by: J.T. Skinner and Bill Arnold, for appellants.
Watts, Donovan, Tilley & Carson, P.A., by: David M. Donovan and Staci Dumas Carson,
for appellees.