Skala v. Comfort Systems USA, Inc.

Cite as 2024 Ark. App. 600
ARKANSAS COURT OF APPEALS
DIVISIONS I & II
No. CV-23-234

Opinion Delivered December 4, 2024

REBECCA SKALA, AS SPECIAL
APPEAL FROM THE INDEPENDENCE
ADMINISTRATOR OF THE ESTATE
COUNTY CIRCUIT COURT
OF SIR CHRISTOPHER EARNEST
[NO. 32CV-21-245]
WALKER SKALA, DECEASED, AND
GUARDIAN OF THE ESTATE OF
XAVIOR ROBERT DAWSON SKALA, A HONORABLE HOLLY MEYER, JUDGE
MINOR; AND JAMES GARDNER, AS
SPECIAL ADMINISTRATOR OF THE
ESTATE OF TAMMY GARDNER,
DECEASED
APPELLANTS

SUPPLEMENTAL OPINION ON
V. DENIAL OF REHEARING

COMFORT SYSTEMS USA, INC.; AND
COMFORT SYSTEMS USA
(ARKANSAS), INC.
APPELLEES

CINDY GRACE THYER, Judge

In their petition for rehearing and in a complete reversal from their argument in their

original brief, the appellees now argue that the Arkansas Supreme Court has, in fact, adopted

the going-and-coming rule in respondeat superior cases. The petition for rehearing is denied

because we affirm our prior holding.1 However, we offer the following in explanation.

1
In addition to this supplemental opinion, we have also issued a substituted opinion
correcting nonmaterial mistakes of fact brought to our attention in the appellees’ petition.
In the petition for rehearing, appellees argue that our supreme court adopted the

going-and-coming rule in respondeat superior cases in Knighton v. International Paper Co., 246

Ark. 523, 438 S.W.2d 721 (1969). The Knighton case was decided five years after the Van

Dalsen decision2 cited in our previous opinion. It also involved a third-party suit against an

employer for an accident involving one of its employees. And, as in Van Dalsen, our supreme

court cited Frank Lyon Co. v. Oats, 225 Ark. 632, 284 S.W.2d 637 (1955).

Our supreme court, however, did not, as appellees suggest, adopt a blanket

application of the going-and-coming rule to respondeat superior cases in Knighton; nor did it

expressly overrule its clear statement in Van Dalsen that liability in respondeat superior cases

is not to be governed by the rules applicable to workers’compensation cases. Instead, the

supreme court simply decided the case under the traditional respondeat superior analysis:

whether the employee was acting withing the scope of his employment at the time of the

collision, taking into account whether the employee was under the control of his employer

at the time of the accident. The court noted that the employee was working on a unit basis,

had delivered the fruits of his labor to the pulpwood yard, had received his pay, and was on

his way home in his own vehicle. As such, our supreme court held he was no longer under

the control of any alleged employer and thus was not acting within the scope of his

employment at the time of the collision. Therefore, the fact that the employee was returning

home at the time of the accident was just one factor in making that determination.

2
Van Dalsen v. Inman, 238 Ark. 237, 379 S.W.2d 261 (1964).

2
As stated in our previous opinion, because reasonable minds could reach different

conclusions as to whether Conboy was acting within the scope of his employment at the time

of the collision, summary judgment was inappropriate.

Petition denied.

HARRISON, C.J., and GRUBER, BARRETT, WOOD, and HIXSON, JJ., 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.

3