author: Justice COOPER. Justice WINTERSHEIMER.

text:
    Mark Leo THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0989-MR.
    Supreme Court of Kentucky.
    June 16, 2005.
    Rehearing Denied Sept. 22, 2005.

      Michael L. Goodwin, Goodwin & Lasch, Louisville, Counsel for Appellant.

      Gregory D. Stumbo, Attorney General, George G. Seelig, Assistant Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

During the early morning hours of October 9, 2002, Appellant, Mark Leo Thomas, and the two complaining witnesses, Robert Beckwith and Tilden Linker, were involved in an altercation outside the R Place Pub, a bar in Louisville, Kentucky. During the altercation, Appellant drew a handgun and shot Beckwith once in the leg and Linker three times in the hip. Appellant was also injured, suffering fractures of both cheekbones, his jaw, and his left and right maxillary sinuses, as well as injuries to several teeth, which required extraction. Appellant claimed Beckwith and Linker attacked him and that he shot them in self-protection. Beckwith and Linker claimed Appellant shot them without provocation and that other patrons of the bar primarily inflicted Appellant’s injuries while subduing and disarming him after the shootings. The only eyewitness to any of this activity was Jeremy Walls, who came to the bar looking for a friend just as Appellant, Beckwith, and Linker were leaving. Walls testified that as he was entering the bar, he saw either Beckwith or Linker shove Appellant; and that as he was leaving the bar less than a minute later, he saw Appellant shoot Beckwith and Linker.

A Jefferson Circuit Court jury convicted Appellant of intentional assault in the first degree, KRS 508.010(l)(a), a Class B felony, for shooting Beckwith, and of wanton assault in the second degree, KRS 508.020(l)(c), a Class C felony, for shooting Linker. He received consecutive sentences of seventeen and seven years respectively, for a total of twenty-four years. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting eight claims of reversible error, viz: (1) failure to instruct the jury on assault under extreme emotional disturbance, KRS 508.040, a Class D felony, as a lesser included offense of both charges; (2) admission of prior consistent statements of both Beckwith and Linker; (3) admission of opinion evidence that alcohol in the blood of a person with a history of alcohol abuse metabolizes at a faster rate than that of other persons who have consumed the same amount of alcohol; (4) admission of a statement made by Appellant to the police without Miranda warnings; (5) admission of evidence of Appellant’s prior use of controlled substances; (6) admission of improper rebuttal evidence; (7) prosecutorial misconduct during Appellant’s testimony; and (8) misstatements by the prosecutor during penalty-phase argument. We now reverse and remand this case for a new trial because of the failure to instruct the jury on assault under extreme emotional disturbance, the admission of the prior consistent statements of Beckwith and Linker, and the admission of the opinion premised upon an assumption of a history of alcohol abuse. We will also briefly address Appellant’s other claims of error, none of which would warrant reversal.

I. ASSAULT UNDER EXTREME EMOTIONAL DISTURBANCE.

KRS 508.040 provides:

(1) In any prosecution under KRS 508.010, 508.020 or 508.080 in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined, in subsection (l)(a) of KRS 507.020.
(2) An assault committed under the influence of extreme emotional disturbance is:
(a) A Class D felony when it would constitute an assault in the first degree or an assault in the second degree if not committed under the influence of an extreme emotional disturbance; ...

(Emphasis added.) KRS 507.020(l)(a) provides, inter alia:

[A] person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.

(Emphasis added.) In McClellan v. Commonwealth, 715 S.W.2d 464 (Ky.1986), we adopted the following definition of extreme emotional disturbance (“EED”):

Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under circumstances as [the] defendant believed them to be.

Id. at 468-69. Subsequent case law has held that the EED must be “sudden and uninterrupted,” Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky.1991), though the provocation, or “triggering event,” need not occur concurrently with the offense. Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky.2000); Springer v. Commonwealth, 998 S.W.2d 489, 452 (Ky.1999). The provocation need not emanate from the victim, Fields v. Commonwealth, 44 S.W.3d 355, 358 (Ky.2001), and could be the “cumulative impact of a series of related events.” Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky.2003); Fields, 44 S.W.3d at 359.

Because the issue is whether there was evidence to warrant an instruction on assault under extreme emotional disturbance, we must consider the evidence in the light most favorable to Appellant. Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky.1965) (on claim of error in failing to give requested jury instruction, appellate court reviews evidence in light most favorable to party requesting instruction). See also United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir.1979).

Appellant is a resident of Florida but a native of Louisville. He was previously mugged in the parking lot of a Marriott Hotel in Tampa, Florida, resulting in a serious injury to his left eye that required surgery and implantation of metal plates. On October 8, 2002, Appellant arrived in Louisville to spend time with his sister, whose husband was dying of cancer. He intended to stay at a local hotel. He had dinner with his father, then hired a taxi to drive him to the R Place Pub, where he knew the bartender and hoped to meet some former acquaintances. At the bartender’s suggestion, Appellant stored his luggage behind a closed bar on the patio. He removed a holstered handgun from the luggage and placed it between the small of his back and the waistband of his pants. He then, indeed, met and socialized with some old friends. Beckwith and Linker were seated at another table with Beck-with’s domestic companion, Sara Bishop. Appellant caught Bishop’s eye and smiled at her. Bishop smiled back. Beckwith then began staring at Appellant “with anger in his eyes.” When Appellant got up from his table, Beckwith approached him and said, “Let’s take this outside.” Appellant retreated back to his friends’ table and told them, “I’ve got to get out of here.” He asked the bartender to call a taxi to take him to the hotel, retrieved his luggage, and went outside to await the arrival of the taxi. Beckwith and Linker followed him outside. Appellant testified that when he saw them approach, “I knew I was in trouble.” Beckwith and Linker began shoving Appellant. Beckwith then punched Appellant in his surgically repaired left eye, causing blood to “explode” from the eye. Both assailants “whaled” him, knocking him to the ground and causing him to become temporarily unconscious. When Appellant regained consciousness, Beckwith was on top of him, still beating him with his fists. Appellant’s face and body were covered with contusions, abrasions, and blood. He testified, “I felt like I was dying.”

Linker pulled Beckwith off Appellant. Appellant struggled to his feet and drew his pistol, initially fumbling it. Linker mocked him, saying, ‘What are you going to do with that? Look, you’re fumbling it.” Linker grabbed for the pistol but Appellant was able to shift it to his other hand. Appellant testified that when Linker again grabbed him, he thought, “They are going to kill me. I’ve got to get him off of me. They are going to get me down on the ground again and they are going to kill me.” Appellant fired what he intended to be a warning shot into the ground (this may have been the shot that wounded Beckwith in the leg). His assailants appeared unphased. Appellant fired another round, attempting to wound Linker in the leg. When Linker continued the assault, Appellant fired two more rounds. Apparently, these last three rounds were the ones that that struck Linker. Both Linker and Beckwith then fell to the ground, and the bartender and other bar patrons wrestled Appellant to the ground and disarmed him.

Of course, the Commonwealth’s version of these events was different. Beckwith testified that he berated Appellant for attempting to touch Bishop as she walked by his table, and that Appellant invited him outside to discuss the matter. Linker testified that he had been in the restroom and returned to see Appellant and Beckwith go out the door, so he followed them outside. Beckwith testified that when they got outside, Appellant shot Linker and he (Beck-with) attacked Appellant in an attempt to disarm him. Linker testified that he stepped between Beckwith and Appellant who were “having words” and Appellant shot him. The other bar patrons then arrived and assisted Beckwith in subduing Appellant.

The trial court concluded that the evidence did not warrant an instruction on assault under extreme emotional disturbance, perceiving that there was no “triggering event” and that the evidence supported only an instruction on self-defense. That might be true if we considered only the Commonwealth’s version of the events. However, it is the duty of the trial court in a criminal case to instruct the jury on the whole law of the case, RCr 9.54(1), and this rule requires instructions applicable to every state of the case deducible from or supported to any extent by the testimony. Webb v. Commonwealth, 904 S.W.2d 226, 228 (Ky.1995); Reed v. Commonwealth, 738 S.W.2d 818, 822 (Ky.1987). A defendant has the right to have every issue of fact raised by the evidence and material to the defense submitted to the jury on proper instructions. Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky.1993). He is entitled to an instruction on any lawful defense that he has, Slaven v. Commonwealth, 962 S.W.2d 845, 856 (Ky.1997); Sanborn v. Commonwealth, 754 S.W.2d 534, 550 (Ky.1988), including the defense that he is guilty of a lesser included offense of the crime charged. “Although a lesser included offense is not a defense within the technical meaning of those terms as used in the penal code, it is, in fact and principle, a defense against the higher charge.” Slaven, 962 S.W.2d at 856; Gall v. Commonwealth, 607 S.W.2d 97, 108 (Ky.1980), overruled on other grounds by Payne v. Commonwealth, 623 S.W.2d 867, 870 (Ky.1981); Brown v. Commonwealth, 555 S.W.2d 252, 257 (Ky.1977). An instruction on a lesser included offense is required if the evidence would permit the jury to rationally find the defendant not guilty of the primary offense, but guilty of the lesser offense. Commonwealth v. Wolford, 4 S.W.3d 534, 539 (Ky.1999); Smith v. Commonwealth, 737 S.W.2d 683, 687 (Ky.1987). See also Hopper v. Evans, 456 U.S. 605, 611-12, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982).

Evidence supporting the defense of self-protection may also support the defense of extreme emotional disturbance.

Self-protection and emotional disturbance are separate defenses and the presence of the former does not automatically trigger the latter, although under certain circumstances and with certain evidence, both might well be justified.

Carwile v. Commonwealth, 656 S.W.2d 722, 723 (Ky.1983) (emphasis added). Said another way, the mere fact that a defendant claims to have acted in self-defense does not mean that he was acting under the influence of EED, ie., that his state of mind was necessarily “so enraged, inflamed, or disturbed as to overcome [his] judgment, and to cause [him] to act uncontrollably from the impelling force of the extreme emotional disturbance .... ” McClellan, 715 S.W.2d at 468. However, a claim of self-defense does not necessarily negate an alternative claim of EED if the evidence, as here, would support both theories.

In Engler v. Commonwealth, 627 S.W.2d 582 (Ky.1982), we held it was reversible error to refuse to instruct on assault under extreme emotional disturbance where the defendant stabbed two victims during a melee similar to the one described by Appellant in this case. Engler and his brother were engaged in a brawl with the victims, Camden and Perkins. Engler testified that he stabbed Camden because Camden was threatening his brother with a large tow chain and hook, and that he stabbed Perkins because “Perkins was coming toward him with a knife in his hand and, having been cut by someone once before on another occasion, he was ‘scared,’ ‘afraid he was going to stab me.’ ” Id. at 583 (emphasis added).

[U]nder the evidence in this case it would not have been unreasonable for a juror to believe beyond a reasonable doubt that [Engler] was not acting in self-protection or in defense of his brother, yet still believe that he was acting in a state of “extreme emotional disturbance for which there was a reasonable justification or excuse under the circumstances as he believed them to be.”

Id. at 584 (emphasis added).

The evidence here is even more compelling. Appellant’s version of the events is that while he shot Beckwith and Linker because he thought they intended to kill him, he did so only after they had already beaten him “half to death,” and reinjured his surgically repaired left eye that had been initially injured in a previous mugging. The jury could have believed, as they obviously did, that Appellant was not entitled to use deadly physical force against two unarmed men, but also have believed that he acted in enraged retaliation for the beating the victims had already inflicted upon him, thereby shooting them while under the influence of EED. The fact of his previous mugging is relevant to whether “there was a reasonable justification or excuse under the circumstances as he believed them to be.”

Under the facts as viewed in the light most favorable to Appellant, the trial court erred in refusing to instruct the jury on assault under extreme emotional disturbance as a lesser included offense of both charges of assault in the first degree.

II. PRIOR CONSISTENT STATEMENTS.

The Commonwealth’s first two witnesses were Beckwith and Linker, who testified to their versions of the events that occurred at R Place Pub on the night in question. After the altercation, both were taken to the hospital emergency room for treatment of their wounds, where they were subsequently interviewed by Detective Joseph Woosley. The shootings occurred at approximately 1:25 a.m. Woos-ley testified that he arrived at the emergency room at 1:55 a.m. On the second day of the Commonwealth’s case-in-chief, the prosecutor called Woosley as a witness and asked him to repeat what Beckwith and Linker had told him during their interviews. When defense counsel objected on hearsay grounds, the prosecutor explained that Woosley’s testimony would show that each victim’s trial testimony was consistent with the statement each gave shortly after the incident occurred. The trial court correctly concluded that the statements were inadmissible under the hearsay exception for prior consistent statements, KRE 801A(a)(2), because there had been no allegation of recent fabrication or improper influence, but agreed with the prosecutor’s secondary argument that the statements were admissible under KRE 803(2) as “excited utterances.” Without any other foundation having been laid except that the statements were made at least thirty minutes after the altercation and while the declarants were in the hospital for treatment of their wounds, the trial court admitted the statements as excited utterances.

Temporal proximity to the “startling event” is only one factor to consider in determining whether a statement was “made while the declarant was under the stress of excitement caused by the event .... ” KRE 803(2) (emphasis added). “For an out-of-court statement to qualify for admission under KRE 803(2), it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.” Noel v. Commonwealth, 76 S.W.3d 923, 926 (Ky.2002) (emphasis added) (internal citation and quotation omitted). “[S]pontaneity, as opposed to mere proximity in time, is a most important consideration.” Roland v. Beckham, 408 S.W.2d 628, 632 (Ky.1966). See also Honaker v. Crutchfield, 247 Ky. 495, 57 S.W.2d 502, 504 (1933). In Souder v. Commonwealth, 719 S.W.2d 730 (Ky.1986), we identified eight factors to be considered in determining whether a statement was an excited utterance:

(i) lapse of time between the main act and the declaration [the only factor considered here], (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.

Id. at 733. Temporal proximity and, perhaps, the presence of the visible results of the occurrence (their wounds) are the only factors weighing in favor of admission of Beckwith’s and Linker’s statements as excited utterances. Both had a motive to accuse Appellant of being the aggressor; for otherwise, they would have been charged with assaulting him instead of vice versa. Woosley did not testify that Beck-with and Linker were actually excited when they made their statements. Compare United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir.1980) (“Officer Marshall described Lucy as scared and nervous with her eyes still red from crying and her hair was still messed from the assault.”). Beckwith testified that he told Woosley what happened, but he did not claim to have been excited when he gave his statement. Linker denied that he even talked to Woosley in the emergency room, though he maintained that he did give Woosley a statement at an unspecified later time. He, like Beckwith, made no claim that he was excited when he gave his statement. The declarations were not made at the scene of the occurrence. The statements were made in response to questioning and were self-serving.

In Jarvis v. Commonwealth, 960 S.W.2d 466 (Ky.1998), we held that the Commonwealth has the burden to prove that an out-of-court statement is an excited utterance. Id. at 470.

At trial, the Commonwealth offered absolutely no evidence as to C.J.’s emotional state. Specifically, it offered no evidence as to her level of “excitement” at the time these statements were made. The Commonwealth did not establish the temporal lapse between C.J.’s statements and her mother’s death. The Commonwealth did not establish whether the statements were made spontaneously or in response to questioning. The only evidence remotely supportive of the Commonwealth’s position on appeal is testimony that placed C.J. outside her parents’ home sometime subsequent to her mother’s death.
... [S]eemingly, the Commonwealth would have us simply infer C.J.’s mental state.

Id. The same is true here. The party claiming a hearsay exception has the burden of proof that the exception applies. Noel, 76 S.W.3d at 926; Slaven, 962 S.W.2d at 854; Jarvis, 960 S.W.2d at 470. Because the Commonwealth failed in its burden of proof, the trial court’s KRE 104(a) finding that the prior statements of the complaining witnesses were excited utterances was not supported by substantial evidence and was, therefore, clearly erroneous.

III. BLOOD ALCOHOL EVIDENCE.

Dr. Mary Fran Mallory testified from a toxicology report that Appellant’s blood alcohol (B.A.) level at 3:50 a.m. was 0.141 (Beckwith’s B.A. level was 0.076 and Linker’s was 0.223). The prosecutor asked Dr. Mallory to perform a “retrograde extrapolation” to estimate Appellant’s B.A. level as of 1:25 a.m., “assuming a history of alcohol abuse.” The trial court sustained defense counsel’s objection, but permitted the prosecutor to rephrase the question and ask the doctor to “assume, hypothetically, someone with a history of alcohol abuse.” Dr. Mallory’s opinion was that such a person’s B.A. level would have been 0.21 as of 1:25 a.m.

Although several eyewitnesses testified that Appellant appeared intoxicated while inside the R Place Pub on the night in question, there was no evidence that he had a history of alcohol abuse. “It is a fundamental rule of evidence that a hypothetical question must be based upon, or contain, a state of facts supported by some evidence.” Hodge v. Commonwealth, 289 Ky. 548, 159 S.W.2d 422, 423 (1942). Professor Lawson reports that our pre-Rules case law imposed three requirements on the use of hypothetical questions:

(1) the assumptions used in a hypothetical question were required to reflect the true state of the facts in evidence; (2) competent evidence was required to be introduced to support each and every assumption used in such a question; and (3) although the supporting evidence did not have to be uncontradicted, it had to be sufficient to support findings by the jury on every assumption essential to the validity of the opinion.

Robert G. Lawson, The Kentucky Evidence Law Handbook § 6.25[3], at 465 (4th ed. LexisNexis 2003) (internal citations omitted). He also opines that “all of the requirements described above are sound enough to have survived the adoption of KRE 702.” Id. We agree; thus, the objection to Dr. Mallory’s opinion should have been sustained. We also agree with Appellant that since the unsubstantiated “hypothetical fact” could not be used to support Dr. Mallory’s retrograde extrapolation, it served no purpose other than to insinuate that Appellant was a person of bad character in contravention of KRE 404(a)(1). The prosecutor should not have been permitted to ask the hypothetical question and Dr. Mallory should not have been permitted to respond to it.

IV. MISCELLANEOUS ISSUES.

Appellant’s statement to Detective Woosley was made at the hospital and before any charges were filed against him. Appellant was not in custody when the statement was made; thus, Woosley was not required to inform him of his Miranda rights. Callihan v. Commonwealth, 142 S.W.3d 123, 126-28 (Ky.2004). Nor was Appellant charged with a crime at the time of the statement; therefore, his Sixth Amendment right to counsel had not attached. Linehan v. Commonwealth, 878 S.W.2d 8,10 (Ky.1994).

Dr. Mallory testified that Appellant’s urine screen from a sample taken at the hospital showed traces of opiates (pain medication), benzodiazepine (muscle relaxant), and marijuana. Defense counsel conceded that the urine screen results were admissible. Thus, the issue is not preserved for appellate review.

Jeremy Walls testified as a rebuttal witness for the Commonwealth, primarily because he did not respond to a subpoena and could not be produced by the Commonwealth during its case-in-chief. His testimony partially rebutted Appellant’s claim that he shot Beckwith and Linker while they were assaulting him. Ruppee v. Commonwealth, 821 S.W.2d 484, 487 (Ky.1991). The trial court did not abuse its discretion in permitting Walls to testify as a rebuttal witness. Pilon v. Commonwealth, 544 S.W.2d 228, 231 (Ky.1976).

Appellant cites two incidents of alleged prosecutorial misconduct. First, the prosecutor laughed and made some facial gestures during Appellant’s testimony. At a subsequent bench conference, the prosecutor admitted her actions and apologized. The trial court admonished the prosecutor not to repeat such conduct, and defense counsel requested no other relief. The prosecutor also misstated the parole eligibility evidence during her penalty-phase argument. Defense counsel’s objection was sustained, and the prosecutor corrected the misstatement. Again defense counsel requested no other relief. Appellant received all the relief he requested in both instances. Presumably, neither incident will recur at retrial.

Accordingly, the judgment of convictions and the sentences imposed upon Appellant are reversed, and this case is remanded to the Jefferson Circuit Court for a new trial in accordance with the contents of this opinion.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., sitting.

LAMBERT, C.J.; GRAVES, JOHNSTONE, and SCOTT, JJ., concur.

WINTERSHEIMER, J., dissents by separate opinion.

Dissenting opinion by

Justice WINTERSHEIMER.

I must respectfully dissent from the majority opinion because it was not error for the trial judge to deny the giving of an EED instruction, police testimony was properly admitted, as well as evidence of alcohol use, and the admission of prior consistent statements of the victim was not error.

This case has had an interesting journey through the Supreme Court system. Originally, in December 2004, a memorandum opinion of this Court was issued affirming the conviction and sentence. The vote at that time was 4 to 3 with Justice Cooper writing a dissenting opinion. Subsequently, a petition for rehearing was filed by Thomas which focused on Mo issues raised in the dissent, the absence of an EED instruction and the excited utterances of the victims. A petition for rehearing was granted and we are now faced with a majority decision which reverses the conviction as well as the original opinion rendered by this Court.

In my view, the trial judge properly denied the request for an EED instruction. Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky.2003), indicates that there must be some definite and nonspeculative evidence that the onset of the extreme emotional disturbance was caused by a triggering event. There was evidence before the trial judge that Thomas remained in control up to the time of the shooting and that there was no specific triggering event. The trial judge properly determined that Thomas was entitled to self-defense instructions which were given, but not to an EED instruction.

In regard to the prior consistent statements of the two victims, defense counsel at trial conducted a strong legal attack on the credibility of the victims by comparing their trial testimony to their previous statements. When a police detective who had interviewed the two victims was called to testify, he related the statements made by the victims. The contention is that this testimony was inadmissible hearsay. The trial judge after considerable review determined that the statements were admissible as an excited utterance under KRS 803(2). The statements were made by the victims while they were receiving treatment only minutes after having been shot. It has long been held that rulings on the admissibility of evidence by a trial judge will not be disturbed on appellate review in the absence of an abuse of discretion. See Commonwealth v. English, 993 S.W.2d 941 (Ky.1999); Jarvis v. Commonwealth, 960 S.W.2d 466 (Ky.1998).

Here, defense counsel was attempting to demonstrate that the victims were fabricating their story to cover one another and that one of the victims had a civil suit pending against Thomas. The testimony by the police detective was responsive and appropriate. The presentation of this information was not in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). There was no abuse of discretion by the trial judge or any other error in this respect.

The question of evidence of prior alcohol abuse was not properly preserved for appellate review.

I would affirm the conviction in all respects.

      . The verdict of guilty of assault in the second degree was premised upon the jury’s finding that Appellant used deadly physical force in self-defense under a wantonly held belief in the need to do so. KRS 503.120(1); Saylor v. Commonwealth, 144 S.W.3d 812, 818-19 (Ky.2004); Commonwealth v. Hager, 41 S.W.3d 828, 841-44 (Ky.2001); Elliott v. Commonwealth, 976 S.W.2d 416, 419-20 (Ky.1998); Shannon v. Commonwealth, 767 S.W.2d 548, 548-51 (Ky.1988), overruled, on other grounds by Elliott, 976 S.W.2d at 422.


source: Caselaw Access Project

author: Justice COOPER.

license: Public Domain

text:
    PARTS DEPOT, INC.; and CSD America, Inc., Appellants v. Lynn BEISWENGER, Appellee. Housing Authority of Middlesborough, Appellant v. Charles Smith; and Eddie Harrell, Appellees.
    Nos. 2002-SC-0948-DG, 2004-SC-0124-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Mitzi D. Wyrick, Angela C. McCorkle, Wyatt, Tarrant & Combs, Louisville, KY, Ellen E. Boshkoff, Kathy L. Osborn, Baker & Daniels, Indianapolis, IN, Counsel for Appellants (2002-SC-0948-DG).
    Donald Duff, Frankfort, KY, Glenn L. Greene, Jr., Harlan, KY, Counsel for Appellant (2004-SC-0124-DG).
    Philip C. Kimball, Louisville, KY, Counsel for Appellee (2002-SC-0948-DG).
    Bradley C. Freeman, Corbin, KY, Counsel for Appellees (2004 — SC-0124-DG).
    Kembra Sexton Taylor, Labor Cabinet, Frankfort, KY, Counsel for Amicus Curiae Commissioner of the Department of Labor (2004-SC-0124-DG).
   Opinion of the Court by

Justice COOPER.

We have consolidated these two appeals because they present a common issue, viz: Does a circuit court have original subject matter jurisdiction over a wage and hour dispute between an employer and employee, or is original jurisdiction over all such disputes vested exclusively in the Department of Labor by KRS Chapters 336 and 337, subject to only appellate review by the Court of Justice after exhaustion of administrative remedies? Each of these appeals involves a claim that an employer did not pay an employee the agreed compensation for services rendered. In each case, a circuit court determined that it did not have jurisdiction to resolve the dispute. Those decisions were reversed by separate panels of the Court of Appeals; but even those panel members agreeing with the result did not fully agree in the reasoning. Further, the only two previous published opinions addressing the subject, Early v. Campbell County Fiscal Court, 690 S.W.2d 398 (Ky.App.1985), and Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky.App.1986), reached opposite results on different reasoning. We now affirm the decisions of the panels of the Court of Appeals in the case sub judice, and overrule Noel in part and Early in its entirety.

On April 10, 2001, Lynn Beiswenger sued Parts Depot, Inc., and CSD America, Inc., in the Shelby Circuit Court alleging that the two corporations had jointly employed him in various capacities from October 26, 1998, through January 20, 2001, and that they refused to pay him $29,260.00 in compensation, which they had agreed to pay for his services. Beis-wenger alleged a violation of KRS 337.055 (“Any employee who leaves or is discharged from his employment shall be paid in full all wages or salary earned by him_”), and brought his action pursuant to KRS 337.385(1) (action may be maintained in any court of competent jurisdiction to recover unpaid wages earned, an additional equal amount in liquidated damages, and for costs and reasonable attorney fees). The Shelby Circuit Court dismissed the action for lack of subject matter jurisdiction. The Court of Appeals reversed and remanded with directions to permit Beiswenger to proceed with his action. The only issue presented by this appeal is the jurisdictional one.

On June 10, 1997, a complaint was filed with the Kentucky Labor Cabinet (now Department of Labor) alleging that the Housing Authority of Middlesborough (“HAM”) was not paying its “on call” maintenance employees at the on-call rate established in HAM’s personnel policy. Pursuant to KRS 337.345, the name of the complainant remains confidential. An investigator from the Labor Cabinet investigated the complaint and reported that the complainant was not an “on call” employee. The Cabinet took no further action.

On January 20, 1998, Charles Smith and Eddie Harrell, two of HAM’s maintenance employees, sued HAM in the Bell Circuit Court alleging that HAM had breached its contractual obligation to compensate them for their services at the on-call rate. HAM’s personnel policy, officially adopted by HAM’s board of commissioners on September 17, 1991, provides in pertinent part:

c. “ON CALL” Employees. An “On Call” employee is an employee working for the Housing Authority on a regular shift and is then required to be available to meet work requirements which arise outside of the employee’s normal duty hours.
“On Call” maintenance employees who are provided a dwelling unit at reduced rent for restriction of time, shall be paid one and one-half times their basic hourly rate for all hours worked in excess of eight.
Maintenance employees who are not furnished a dwelling unit at reduced rates, and are required to be available after them normal duty hours, shall be paid for their restriction of time and the equivalent of one hour at one and one-half times the basic hourly rate for each day they are required to be “On Call.” In addition, these employees shall be paid at the rate of one and one-half times their basic hourly rate for all hours worked in excess of eight.
d. “Subject to Call” Employees. “Subject to Call” employee is an employee who may be called by the Public Housing Authority (PHA). The employee is not required to be available to the PHA. All maintenance employees not “On Call” are considered “Subject to Call.” These employees shall be paid at the rate of one and one-half times their basic hourly rate for hours actually worked in excess of 40 hours per week. (Part-time employees may, at the option of the PHA, be paid one and one-half times their basic hourly rate for hours actually worked excess [sic] of their normal work week.)

HAM added the “subject to call” status to its personnel policy in 1991 at the suggestion of the Federal Housing Authority. Smith and Harrell assert that they were “on call” maintenance employees and were neither provided a dwelling unit at reduced rent nor compensated at the on-call monetary rate. HAM asserts that Smith and Harrell were “subject to call” employees, not “on call” employees. Smith and Harrell neither asserted a violation of KRS 337.060 (“No employer shall withhold from any employee any part of the wage agreed upon.”) nor purported to file their action under the authority of KRS 337.385(1). Their complaint can best be characterized as one for common law breach of contract.

The Bell Circuit Court initially granted summary judgment to the employees and, after a bench trial, awarded damages of $28,665.70 to Smith and $11,308.26 to Harrell, plus added contributions to Smith’s and Harrell’s retirement accounts commensurate with the unpaid wages. The Court of Appeals reversed in an unpublished opinion, No. 1999-CA-000765-MR (August 25, 2000), concluding that there existed a factual issue as to whether Smith and Harrell were “on call” or “subject to call” employees, thus precluding summary judgment. See Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). On remand, the Bell Circuit Court granted HAM’s belated motion to dismiss the action for lack of subject matter jurisdiction. See Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky.2001) (“Defects in subject-matter jurisdiction may be raised by the parties or the court at any time and cannot be waived.”). The Court of Appeals reversed and remanded with directions to permit Smith and Harrell to proceed with their action.

In addition to the jurisdiction issue, we will also address HAM’s assertion that its personnel policy does not confer contractual rights upon its employees such as would give rise to a cause of action for breach of contract.

I. JURISDICTION.

KRS 337.385, enacted as part of the 1974 General Assembly’s major revision of Kentucky’s Wages and Hours Act, 1974 Ky. Acts, ch. 391, § 9, provides:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 387.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself or themselves.
(2) At the written request of any employee paid less than the amount to which he is entitled under the provisions of KRS 337.020 to 337.285, the commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The commissioner in case of suit shall have power to join various claimants against the same employer in one (1) action.

(Emphasis added.)

Subsection (1) unambiguously authorizes an uncompensated or undercompensated employee to sue the employer in “any court of competent jurisdiction” for the amount due and unpaid, plus liquidated damages, costs and attorney fees. If the amount is $4,000.00 or less, the court of competent jurisdiction is the district court. KRS 24A.120(1). Otherwise, it is the circuit court. Ky. Const. § 112(5). KRS 337.385 is substantially similar to 29 U.S.C. § 216(b) of the federal Fair Labor Standards Act, which also authorizes a private cause of action by an employee against an employer to recover damages, including liquidated damages and attorney fees, for failure to pay wages owed for services rendered. KRS 337.385(2) is admittedly less clear than subsection (1), but the phrases “any legal action necessary” and “in case of suit” appear to authorize the commissioner to file suit on behalf of the employee in a court of competent jurisdiction. Undoubtedly, the General Assembly included the liquidated damages provision in subsection (1) and omitted it from subsection (2) as an incentive for employees to hire their own attorneys and pursue their own claims, thereby relieving the commissioner of much of the burden of litigation.

Appellants urge that KRS 337.810 vests exclusive jurisdiction of all wage-and-hour disputes in the Department of Labor, requiring Appellees to exhaust administrative remedies and limiting circuit court jurisdiction to appellate review. KRS 337.310 now provides: “All orders or decisions of the secretary issued or made under KRS 337.020 to 337.405 may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.” However, the pre-1996 version of KRS 337.310 provided:

(1) All questions of fact arising under KRS 337.020 to 337.405 except as provided in this section, shall be decided by the secretary. There shall be no appeal from the decision of the secretary on any question of fact, but there shall be a right of review by the Circuit Court. Either party may, within twenty (20) days after the rendition of a final order of the secretary, by petition appeal to the Circuit Court that would have jurisdiction to try an action for breach of contract.
(2) The review is limited to determining whether or not:
(a) The secretary or director acted without or in excess of his powers;
(b) The order or decision was procured by fraud;
(c) The order or decision is not in conformity to the provisions of KRS 337.020 to 337.405; and
(d) If findings of fact are in issue, whether they support the order or decision.
(3)The Circuit Court shall enter judgment affirming, modifying, or setting aside the order or decision.

The statute was a provision of the Women and Minors’ Employment Act, 1938 Ky. Acts, ch. 105, a comprehensive statutory scheme establishing procedures to ensure that women and minors were neither overworked nor underpaid. That scheme was subsequently codified within the Wages and Hours Act under the title ‘Women and Minors.” The first part of the scheme, KRS 337.220-.360, created an elaborate system of wage boards, directory orders, and mandatory orders fixing the minimum fair wage for women and minors in various job classifications. KRS 337.310 was included within that scheme. However, it clearly was not intended to preclude women and minors from resorting to the courts for collection of unpaid wages; for, as originally enacted, the last statute in that scheme, KRS 337.360, provided:

If any woman or minor worker is paid by his employer less than the minimum fair wage to which he is entitled under a mandatory minimum fair-wage order he may recover in a civil action the full amount of the minimum wage less any amount actually paid to him by the employer together with costs and such reasonable attorney’s fees as are allowed by the court. Any agreement between him and his employer to work for less than the mandatory minimum fair wage shall be no defense to the action. At the requisition of any woman or minor worker paid less than the minimum wage to which he was entitled under a mandatory order, the commissioner may take an assignment of the wage claim in trust for the assigning employe and may bring any legal action necessary to collect the claim. The employer shall be required to pay the costs and such reasonable attorney’s fees as are allowed by the court. The commissioner shall not be required to pay the filing fee, or other costs, in connection with such action.

That is virtually the same language now contained in KRS 337.385, except that it only applied to women and minors and did not include a liquidated damages clause. Adult men could sue for unpaid wages under KRS 337.020, but that statute did not provide for recovery of attorney fees. In W.W. Mac Co. v. Teague, 297 Ky. 475, 180 S.W.2d 387 (1944), our predecessor court rejected an equal protection challenge under Section 3 of our Constitution and a special legislation challenge under Section 59(29), and held, without mentioning KRS 337.310, that “[t]he effect of this provision is that in case an employer violates the Women and Minors’ Employment Act by paying less than the wages prescribed by the Commissioner of Industrial Relations [now Department of Labor], the full amount of the minimum wage may be recovered, together with the costs of the action and a reasonable attorney’s fee.” 180 S.W.2d at 389. The 1966 General Assembly amended the Women and Minors’ Act to extend its fair-wage provisions, including KRS 337.360, to “any employee.” 1966 Ky. Acts, ch. 158, § 9.

The second part of the Women and Minors’ Act, KRS 337.365-.400, dealt with working hours for women and minors, mandating rest periods and limiting the number of hours that women and minors could work in certain occupations to ten hours per day and sixty hours per week. KRS 337.410 provided that “[t]he department shall have exclusive jurisdiction over the administration and enforcement of KRS 337.370 to 337.400.” There was no similar provision in the “minimum fair wage” scheme of the Act.

In its 1974 revision of the Wages and Hours Act, the General Assembly repealed those provisions establishing wage boards, directory orders, and mandatory orders pertaining to minimum fair wages for women and minors. It also repealed those provisions mandating rest periods and limiting working hours for women and minors. In their place, it enacted statutes adopting the minimum wage mandated by the federal Fair Labor Standards Act, 29 U.S.C. § 206(a)(1), 1974 Ky. Acts, ch. 391, § 2 (KRS 337.275), including time and a half for overtime, 1974 Ky. Acts, ch. 391, § 3 (KRS 337.285), and requiring lunch periods and rest periods for all employees. 1974 Ky. Acts, ch. 333, § 1 (KRS 337.355); 1974 Ky. Acts, ch. 386, § 106 (KRS 337.365). It also enacted KRS 337.055 (payment of all wages to employee who leaves or is discharged), 1974 Ky. Acts, ch. 275, § 1, and repealed KRS 337.410. It did not replace KRS 337.410 with a similar provision vesting in the department exclusive jurisdiction over the administration and enforcement of any provision of the Wages and Hours Act. See generally 1974 Ky. Acts, ch. 391.

The 1974 General Assembly also repealed KRS 337.360, 1974 Ky. Acts, ch. 391, § 14, and replaced it with KRS 337.385, adding the liquidated damages provision. 1974 Ky. Acts, ch. 391, § 9. It retained KRS 337.310, amending it only to provide that “[a]ll questions of fact arising under this Act and KRS 337.34.0 ... shall be decided by the commissioner.” 1974 Ky. Acts, ch. 391, § 5 (emphasis added). The 1978 General Assembly amended that language again to read “[a]ll questions of fact arising under KRS 337.020 to 337405....” 1978 Ky. Acts, ch. 340, § 3 (emphasis added). Thus, KRS 337.310 then provided that all questions of fact arising under the Wages and Hours Act would be decided by the commissioner, subject to judicial review, except that the commissioner’s findings of fact would be conclusive; and KRS 337.385(1) provided that the employee could sue in a “court of competent jurisdiction” for unpaid wages, liquidated damages, costs, and attorney fees.

In Early v. Campbell County Fiscal Court, 690 S.W.2d 398 (Ky.App.1985), a panel of the Court of Appeals addressed the seeming conflict between KRS 337.310 and KRS 337.385(1) and held that KRS 337.385(1) referred only to the appellate jurisdiction conferred by KRS 337.310. Id. at 399. The panel did not further explain the consequences of its holding. However, it must have meant that, despite KRS 337.385(l)’s references to “the court” allowing reasonable attorney fees, “the court” finding good faith on the part of the employer, and “the court” exercising its sound discretion, and despite the statute’s recitation that “[s]uch action may be maintained in any court,” the commissioner would decide in an administrative proceeding the issues of whether wages were improperly withheld, whether liquidated damages should be imposed, and the amount of costs and attorney fees to be awarded, subject only to judicial review.

The following year, the same issue arose before a different panel of the Court of Appeals in Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky.App.1986). That panel rejected an interpretation of Early that all wage disputes must originate before the commissioner (despite the precise language of Early), 722 S.W.2d at 903, and “refined” Early to mean that KRS 337.310 applies only to a wage dispute when the employer has failed to pay the minimum wage required under KRS 337.275 and KRS 337.285, and that KRS 337.385 applies to all other contractual disputes regarding unpaid wages. Id. However, it did not explain why the language in KRS 337.310 that applied that provision to “[a]ll questions of fact arising under KRS 337.020 to 337.405” did not apply to questions of fact arising under KRS 337.055 (failure to pay all wages due when employee leaves or is discharged) or KRS 337.060 (failure to pay any part of the wage agreed upon).

We conclude that both Early and Noel misconstrued the effect of the statutory scheme. “The applicable rule of statutory construction where there is both a specific statute and a general statute seemingly applicable to the same subject is that the specific statute controls.” Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 819 (Ky.1992) (citing 2A Sutherland Statutory Construction § 51.05 (4th ed. 1984)). See also Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 763 (Ky.2003); Commonwealth v. Phon, 17 S.W.3d 106, 107-08 (Ky.2000); DeStock # 14, Inc. v. Logsdon, 993 S.W.2d 952, 959 (Ky.1999). KRS 337.310 purports to apply generally to all wage and hour disputes and KRS 337.385 applies specifically to an employer’s liability for unpaid wages. In fact, the title of the latter provision is “Employers liability — Unpaid wages and liquidated damages.” Early erroneously concluded that KRS 337.310 always takes precedence over KRS 337.385; and Noel erroneously concluded that KRS 337.310 takes precedence over KRS 337.385 when the dispute involves failure to pay a statutory minimum wage. We now hold that KRS 337.385, the more specific statute, takes precedence over KRS 337.310, the general statute, whenever an employee, or the commissioner on employee’s behalf, chooses to exercise the judicial remedy for recovery of unpaid wages. To the extent that Early and Noel hold otherwise, they are overruled.

Our conclusion in this regard is reinforced by the fact that the 1996 General Assembly, concurrently with the effective date of the enactment of KRS Chapter 13B, again amended KRS 337.310, this time removing altogether the mandatory language that “[a]ll questions of fact arising under KRS 337.020 to 337.405 ... shall be decided by the commissioner,” and replacing it with the even-more general provision that “[a]ll orders or decisions of the secretary issued or made under KRS 337.020 to 337.405 may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.” 1996 Ky. Acts, ch. 318, § 313. Nothing in that language or in KRS Chapter 13B can be construed as conferring upon the Department of Labor exclusive jurisdiction to resolve all disputes pertaining to nonpayment of salary or wages.

II. PERSONNEL POLICY AS CONTRACTUAL RIGHT.

HAM claims that it cannot be required to pay Smith and Harrell under the “on call” provision of its personnel policy because that policy does not confer any contractual rights on its employees. We disagree. In Kentucky Unemployment Insurance Commission v. Goode, 631 S.W.2d 28 (Ky.App.1982), employees at Whirlpool Corporation’s Danville, Kentucky, plant sought payment of unemployment compensation benefits during a two-week period when the plant was shut down. The Court of Appeals noted that a company handbook given to all new employees provided that “[t]he company reserves the right to close the plant for a prescribed period of time each year, and to require employees to take their vacations during such period.” Id. at 29. The panel upheld the Unemployment Insurance Commission’s conclusion that this provision in the handbook was a part of the employment contract. Id. at 30. “In effect, the employees agreed to the shutdown and vacation provisions by their acceptance and retention of their employment.” Id. at 29. The same reasoning applies here.

An express personnel policy can become a binding contract “once it is accepted by the employee through his continuing to work when he is not required to do so.” Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 733 (Ala.1987). See also Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221, 224 (1976) (“[T]here is abundant support for the proposition that employer policy directives regarding aspects of the employment relation become contractual obligations when, with knowledge of their existence, employees start or continue to work for the employer.”); Toussaint v. Blue Cross & Blue Shield of Mich., 408 Mich. 579, 292 N.W.2d 880, 885 (1980) (“[S]uch a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s policy statements.”); Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261, 261 (1983) (“Her continued employment after formal delivery of the handbook provides sufficient consideration for modifying the employment agreement by inclusion of the handbook provisions.”); Cook v. Heck’s Inc., 176 W.Va. 368, 342 S.E.2d 453, 459 (1986) (‘We conclude that a promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee’s continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer’s promise binding and enforceable.”).

[E]mployer statements of policy ... can give rise to contractual rights in employees without evidence that the parties mutually agreed that the policy statements would create contractual rights in the employee, and, hence, although the statement of policy is signed by neither party, can be unilaterally amended by the employer without notice to the employee, and contains no reference to a specific employee, his job description or compensation, and although no reference was made to the policy statement in preemployment interviews and the employee does not learn of its existence until after his hiring.

Toussaint, 292 N.W.2d at 892. The principle is akin to estoppel. Once an employer establishes an express personnel policy and the employee continues to work while the policy remains in effect, the policy is deemed an implied contract for so long as it remains in effect. If the employer unilaterally changes the policy, the terms of the implied contract are also thereby changed.

HAM’s reliance on Nork v. Fetter Printing Co., 738 S.W.2d 824 (Ky.App.1987), and McCart v. Brown-Forman Corp., 713 F.Supp. 981 (W.D.Ky.1988), is misplaced. In Nork, a Court of Appeals panel considered three separate cases in which it was claimed that company policy expressed in an employee handbook or manual created an implied contract that overrode the terminable-at-will rule with respect to indefinite employment. In the first, the handbook expressed policies that the employer would merely strive to follow. The panel held this did not create an obligation on the part of the employer to follow those policies. Id. at 825. In the second, the manual contained the following disclaimer:

I understand that this manual is a summary of the policies and rules which guide [employer] in its relationship with its employees. It is not a contract of employment, and I do not construe it as such. I understand it is terminable at the will of either the employee or the employer.

Id. at 826.

Similarly, the third contained this disclaimer:

It should be clearly understood that the continued employment of any associate of the Company will depend upon the successful performance of all work assigned to the associate, and the general following of the guidelines of this booklet, during a trial period of up to ninety (90) days, and upon the continued successful performance and the further need of the associate’s continued employment by the Company.

Id. The panel held that the two disclaimers precluded the employees’ claims that the handbook or manual constituted an agreement not to terminate the employment at will. Id. at 827.

In McCart, the application signed by the employee contained the following provision: “It is agreed and understood that by assigning any work ... that the relations between me and the Corporation shall be a hiring at will, terminable at any time by either of the parties thereto.” The court held that the mere reference to “an employment contract” in a company handbook did not constitute an agreement superseding the terminable-at-will provision in the employment application form. 713 F.Supp. at 983.

Here, the language used in the personnel policy is not precatory, like that held to be insufficient in the first policy addressed in Nork, and there is no disclaimer. The personnel policy adopted by HAM’s board of directors created one rate of compensation for “on call” employees and another for “subject to call” employees. If a jury finds that Smith and Harrell were “on call” employees, the personnel policy created a contractual obligation to pay them at that rate.

Accordingly, the Court of Appeals is affirmed in both of these appeals and these cases are remanded to the Shelby Circuit Court and the Bell Circuit Court, respectively, for further proceedings in accordance with the content of this opinion.

All concur.

      . The record, does not explain why the Housing Authority’s name is spelled differently from that of the city of Middlesboro, where the Housing Authority is located. However, it appears that the city was originally named ''Middlesborough.” See Kentucky Water Serv. Co. v. City of Middlesboro, 247 S.W.2d 40, 41 (Ky.1952).

      . In Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the United States Supreme Court held 29 U.S.C. § 216(b) unconstitutional insofar as it authorized a state to be sued by a state employee in state court. Id. at 712, 119 S.Ct. at 2246.

      . See also KRS 336.985(1) ("The commissioner ... shall initiate enforcement of civil penalties imposed in KRS Chapters 336, 337, and 339.’’) and (3) ("[T]he commissioner ... shall initiate a civil action to collect the penalty ... in the court which has jurisdiction over the location in which the violation occurred.”). We do not decide today whether those statutes preclude attempts to enforce the penalty provisions of the statutory scheme through administrative adjudication, or whether the phrase "any legal action necessary” in KRS 337.385(2) authorizes the commissioner to pursue an administrative adjudication against the employer on behalf of the employee. We only decide that KRS 337.385(1) authorizes the employee, or the commissioner on behalf of the employee, to bring an action in circuit or district court against the employer for unpaid salary or wages.

      . The 1978 General Assembly also amended KRS 337.060 (“No employer shall withhold from any employee any part of the wage agreed upon.”), which had previously applied only to wages agreed upon through collective bargaining and had required that the withholding be "willfully with intent to defraud.” 1978 Ky. Acts, ch. 74, § 1.


author: COOPER, Justice.

text:
    Andrew Stephenson HORNE, Appellant, v. PRECISION CARS OF LEXINGTON, INC., Appellee.
    No. 2002-SC-0104-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    As Modified Sept. 22, 2005.

      Avery L. Stanley, Vanceburg, Marilee Stephenson, Portsmouth, OH, Counsel for Appellant.
    Andrew N. Clooney, O’Bryan, Brown & Toner, Mark Edward Hammond, Louisville, Counsel for Appellee.
   COOPER, Justice.

On May 13, 1998, Appellant, Andrew Stephenson Home, then eighteen years old, injured his wrist when he tripped and fell on the business premises of an automobile dealership owned and operated by Ap-pellees, Precision Cars of Lexington, Inc., and Tom Wood Pontiac, Inc., a general partnership d/b/a Courtesy Pontiac Acura (hereinafter “Courtesy”). He brought this action in the Fayette Circuit Court asserting that the negligence of Courtesy or its employees was a substantial factor in causing his fall and resulting injury. The Fay-ette Circuit Court entered a summary judgment in favor of Courtesy and the Court of Appeals affirmed. We now reverse the Court of Appeals and remand this case to the Fayette Circuit Court with directions to vacate the summary judgment and grant Appellant a trial by jury on the allegations of his complaint.

On May 13, 1998, Appellant drove his own vehicle onto Courtesy’s premises, parked at the rear of the showroom building, and entered the showroom through the rear door. He met Joshua Spencer, one of Courtesy’s salespersons, and advised Spencer that he was interested in possibly purchasing a Pontiac Firebird. Spencer led Appellant out the front door of the showroom, where a red Firebird was parked just to the right of the showroom door. The vehicle had been backed into its parking place so that the left (driver’s) side was immediately adjacent to the showroom door. Appellant got into the driver’s seat and Spencer walked around the car and got into the front passenger seat. Spencer suggested that Appellant test-drive the vehicle but informed Appellant that, because of insurance requirements, he (Spencer) would have to drive the vehicle off the lot. Both men then exited the Firebird, intending to exchange positions in the vehicle. Appellant walked around the rear of the vehicle, still giving his attention to Spencer, who was extolling the virtues of T-tops and other possible accessories. As he rounded the right rear of the Firebird, Appellant tripped on a concrete parking barrier extending outward from under the vehicle, fell, and injured his wrist.

If the previous operator of the Firebird had parked it properly, both rear . tires would have been touching the parking barrier, which would then have been visible from the left side of the vehicle and would not have extended outward past the width of the vehicle. However, the previous operator had parked the Firebird too far to the left and at an angle, so that only its right rear wheel was touching the barrier. The left rear wheel was to the left of and past the barrier, concealing the barrier’s presence from persons observing the vehicle from its left side. Because the vehicle was parked too far to the left, the right side of the barrier projected outward from under the right rear of the vehicle.

Appellant testified in his discovery deposition that he had never previously visited Courtesy’s lot, that he had not noticed any parking barriers when he parked at the rear of the showroom, and that he did not see the barrier in question before he tripped on it and fell. Both the trial court and the Court of Appeals concluded that the barrier was an “open and obvious” hazard, and that Courtesy thus had no duty to warn or otherwise protect its customers, including Appellant, against tripping on it.

“The standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law.” Pearson ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.2002). Summary judgment is only proper when it would be impossible for the plaintiff to produce any evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). In ruling on a motion for summary judgment, the court is required to construe the record in a light most favorable to the party opposing the motion. Id.

Cabinet for Families and Children v. Cummings, 163 S.W.3d 425, 427-28 (Ky.2005). The question is whether the trial court and the Court of Appeals properly held as a matter of law that the concrete parking barrier on which Appellant tripped and fell was so obvious to him that Courtesy owed no duty to warn or protect him against it.

Appellant’s status with respect to Courtesy was that of an invitee. “An invitee enters upon the premises at the express or implied invitation of the owner or occupant on business of mutual interest to them both, or in connection with business of the owner or occupant.” Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 389 (Ky.1955). See also Restatement (Second) of Torts (“Restatement”) § 332(1), (3) (1965). Sections 343 and 343A of the Restatement provide as follows with respect to the special liability of landowners to invitees:

§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
§ 343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

(Emphasis added.)

“Known” means “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” Id. § 343A cmt. b. “Obvious” denotes that “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Id. Concerning the last clause of section 343A(1), ie., when the possessor should anticipate the harm, comment f to section 343A explains:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection....
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it....

Comment f also contains the following illustrations:

2. The A Department Store has a weighing scale protruding into one of its aisles, which is visible and quite obvious to anyone who looks. Behind and about the scale it displays goods to attract customers. B, a customer, passing through the aisle, is intent on looking at the displayed goods. B does not discover the scale, stumbles over it, and is injured. A is subject to liability to B.
4. Through the negligence of A Grocery Store a fallen rainspout is permitted to lie across a footpath alongside the store, which is used by customers as an exit. B, a customer, leaves the store with her arms full of bundles which obstruct her vision, and does not see the spout. She trips over it, and is injured. If it is found that A should reasonably have anticipated this, A is subject to liability to B.

Our case law regarding premises liability has developed within three distinct categories. The first category holds that the owner of a business premises has no duty to protect invitees from injuries caused by “natural outdoor hazards which are as obvious to an invitee as to an owner of the premises.” Standard Oil Co. v. Manis, 433 S.W.2d 856, 858 (Ky.1968) (snow and ice) (emphasis added). See also PNC Bank, Ky., Inc. v. Green, 30 S.W.3d 185, 186 (Ky.2000) (same); Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987) (same) (holding that adoption of comparative negligence and abrogation of assumption of risk defense did not mandate a different result, because negligence is immaterial if there is no duty); Rogers v. Prof'l Golfers Ass’n of Am., 28 S.W.3d 869, 872 (Ky.App.2000) (wet grassy hillside). An exception to this rule occurs when the owner undertakes protective measures that, in fact, heighten or conceal the nature of the hazardous condition, thus making it worse. Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911, 914 (Ky.App.1991), as explained by PNC Bank, 30 S.W.3d at 187. This category has no relevance to the case sub judice because the hazard here, while outdoors, was not “natural.”

The second category holds that if the invitee was injured because of an encounter with a foreign substance or other dangerous condition on the business premises, the owner can avoid liability by proving that the hazard was not caused by the owner or the owner’s employees and that the hazard was not present for a sufficient period of time before the accident to give the owner notice to remove it or to warn invitees of its presence. E.g., Bartley v. Educ. Training Sys., Inc., 134 S.W.3d 612, 615-16 (Ky.2004); Martin v. Mekanhart, 113 S.W.3d 95, 98 (Ky.2003); Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 434-37 (Ky.2003). If the actions of the owner or the owner’s employees created the hazardous condition, notice is immaterial. Wal-Mart Stores, Inc. v. Lawson, 984 S.W.2d 485, 487 (Ky.App.1998) (quoting Cumberland College v. Gaines, 432 S.W.2d 650, 652 (Ky.1968), overruled on other grounds by Lanier, 99 S.W.3d at 436). There is no dispute that Courtesy installed the parking barrier on which Appellant tripped. Spencer’s advice to Appellant that customers could not operate dealership vehicles on the premises is substantial evidence that one of Courtesy’s employees parked the Firebird that partially concealed the barrier’s presence. Thus, notice is not an issue in this case.

The third category involves hazards caused by the owner. If the hazard is “known or obvious to” the invitee, the owner has no duty to warn or protect the invitee against it. These are the cases contemplated by Restatement § 343A, supra, and are best exemplified by Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526 (Ky.1969). In Bonn, a customer of an automobile service center fell into a “grease pit,” an open basement in which employees stand while servicing the undersides of customer’s vehicles. Although Bonn had never been in this particular shop, he admitted that he was familiar with such businesses and knew they commonly contained grease pits. Noting that the risk was inherent in the nature of the activity, itself, that the pit was neither unusual nor hidden (it was two car-lengths long, bisected by a metal bridge, and ridged around its edges), and that the area was well lighted, our predecessor court held that the premises owner “breached no duty to [the plaintiff] which was causative of the harm he suffered.” Id. at 529.

In Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490 (Ky.App.1999), the plaintiff was a customer in a restaurant that provided peanuts to its customers and permitted them to toss empty shells onto the floor. Johnson was in the restaurant for more than two hours and admitted that she was aware of the peanut shells on the floor and considered them a hazard. Upon attempting to exit the restaurant after finishing her meal, she slipped on the peanut shells and fell. Citing Bonn, the Court of Appeals held that the owner of the premises owed no duty to the plaintiff because the hazard was both known and obvious to her. Id. at 491. In such cases, the plaintiffs admission that the hazard was both known and obvious to him or her pertains not only to the issue of contributory fault, but also to whether the hazard was so known and obvious as to obviate any duty on the part of the owner to warn or protect the invitee against the hazard. PNC Bank, 30 S.W.3d at 187.

In affirming the summary judgment against Appellant, the Court of Appeals relied primarily on Bonn and Lone Star. However, unlike the grease pit in Bonn and the peanuts in Lone Star, there was evidence that the parking barrier in this case was neither known nor obvious to Appellant. “In pedestrian fall-down cases arising out of defects in or obstructions on the walking surface the visibility factor is vital.” Jones v. Winn-Dixie of Louisville, Inc., 458 S.W.2d 767, 769 (Ky.1970). While parking barriers, curbing, division strips, and other such obstructions commonly used in parking areas to protect automobiles from property damage (and buildings from automobile damage) are not per se dangerous or unsafe, they can become so when their presence is hidden or otherwise not readily apparent to invitees using the premises. In both Cantrell v. Hardin Hospital Management Corp., 459 S.W.2d 164, 165 (Ky.1970), and Downing v. Drybrough, 249 S.W.2d 711, 712 (Ky.1952), the fact that the accident occurred at night in a poorly-lighted parking lot was held to create a jury question as to liability. See also Holliday v. Great Atl. & Pac. Tea Co., 314 F.2d 682, 684-85 (4th Cir.1963) (yellow paint had peeled off curbing and lighting was inadequate); Geraghty v. Burr Oak Lanes, 5 Ill.2d 153, 125 N.E.2d 47, 52 (1955) (railroad ties used as parking barriers were obscured by weeds); McFarland v. Sears, Roebuck & Co., 91 S.W.2d 615, 620 (Mo.Ct.App.1936) (inadequate fighting); Nary v. Parking Auth. of Town of Dover, 58 N.J.Super. 222, 156 A.2d 42, 45 (Ct.App.Div.1960) (white line observed on previous visit had been replaced with white parking barrier); H.E. Butt Grocery Co. v. Bradfield, 396 S.W.2d 254, 255-56 (Tex.Civ.App.1965) (asphalt ridge between sidewalk and parking lot was same color as asphalt parking lot). Compare Mershon v. Gino’s, Inc., 261 Md. 350, 276 A.2d 191, 194 (1971) (broad daylight, bumpers painted yellow to contrast with black asphalt pavement, openings or walkways between bumpers, and plaintiff admitted that nothing obstructed her view).

In Wilkinson v. Family Fair, Inc., 381 S.W.2d 626 (Ky.1964), the plaintiff was descending some steps into a basement and, upon rounding a corner at the landing, tripped on an abutment extending out level with the floor and covering almost all of the right portion of the upper step. “Though the stairway was well lighted, the lighting is immaterial, for the obstacle which caused the fall was completely concealed from the view of appellant until she had rounded the wall.” Id. at 627. See also Winn-Dixie Louisville, Inc. v. Smith, 372 S.W.2d 789, 792 (Ky.1963) (“While ap-pellee was required to exercise ordinary care for her own safety, such did not require her to look directly down at her feet with each step taken.”). The closest case factually to the case at bar is Magee v. Federated Department Stores, 187 Ga.App. 620, 371 S.E.2d 99 (1988), where the plaintiff tripped over a six-inch-high concrete barrier used as an enclosure for temporary storage of shopping carts. A parked car partially obscured the enclosure from the plaintiffs view, but the barrier projected out approximately two feet from the rear of the car. The plaintiff was momentarily distracted by another vehicle being driven in her direction and tripped over the barrier. Id. at 99. While Magee did not refer to Restatement § 343A, it did hold the owner responsible “where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” Id. at 100.

We conclude from this analysis that the parking barrier on which Appellant tripped and fell was not “known or obvious to” Appellant. In fact, its presence was partially concealed from him by the manner in which a Courtesy employee had parked the Firebird. Even if that were not so, the facts of this case would fall within Restatement § 343A, comment f, because Courtesy would expect that a customer in the process of examining its wares while they were being touted by one of its sales staff “may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Id.

Accordingly, we reverse the Court of Appeals and remand this case to the Fay-ette Circuit Court with directions to vacate its summary judgment and grant Appellant a trial by jury on the allegations of his complaint.

LAMBERT, C.J.; GRAVES, JOHNSTONE, and SCOTT, JJ., concur.

ROACH, and WINTERSHEIMER, JJ., concur in result only.

      . It is unclear from the facts recited in Lone Star whether the plaintiff had any alternative to walking across the strewn peanut shells. If not, then Lone Star is substantially different on its facts from Bonn, where the plaintiff simply stepped into an open pit instead of walking around it, and is more akin to the situation described in Restatement § 343A cmt. f, supra. Cf. Wallingford v. Kroger Co., 761 S.W.2d 621, 624 (Ky.App.1988).


author: GRAVES,

text:
    Kristie SMART, Appellant, v. GEORGETOWN COMMUNITY HOSPITAL; Hon. R. Scott Borders, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-SC-0759-WC.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Theresa Gilbert, Lexington, Counsel for Appellant.
    Walter A. Ward, Clark & Ward, Jonathan David Weber, Lexington, Counsel for Appellee.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) dismissed the claimant’s application for benefits on the ground that an injury sustained while playing volleyball at an employer-sponsored picnic was not work-related. The Workers’ Compensation Board (Board) and the Court of Appeals affirmed. Likewise, we affirm.

The claimant was born in 1969 and completed high school. She became employed by Georgetown Community Hospital in January, 2002, working Monday through Friday in a switchboard/registration position. On Saturday, August 24, 2002, the hospital held its annual picnic for employees and their families at Spindletop Hall in Lexington. The claimant testified that employees received an invitation with their regular paychecks. They were encouraged to attend but were not required to do so. The hospital made the necessary arrangements and provided food but did not conduct any business at the event. Her understanding was that the purpose of the picnic was to boost employee morale, to help them meet other employees they did not encounter daily, and to increase a sense of teamwork. Those who were scheduled to work on the Saturday of the picnic were provided with a meal.

The claimant testified that there were children’s activities, door prizes, and recreational activities such as Karaoke, tennis, volleyball, and swimming for those who chose to participate. About two to three hours after she arrived, a group of about ten people began to play a pick-up game of volleyball. She played until she fell and injured her left knee, tearing the anterior cruciate ligament. After being carried off the field, she was taken to the hospital for treatment. ■ She had knee surgery in December, 2002.

The claimant returned to work around Memorial Day in 2003. She testified that the injury did not affect her ability to work although she did continue to have some pain. When deposed, she stated that she had switched to insurance collections and received the same or greater pay than when she was injured.

Sandra Hickey, the hospital’s human resources director, testified that several employee events were held each year. Part of her job was to plan and make arrangements for them. She stated that the volleyball game at the picnic was not prearranged.

John Phillips, the hospital’s assistant administrator and safety officer, testified that he attended the picnic. He stated that it was held off the hospital premises, for employees and their families only. Its purpose was employee recognition and entertainment. About 50-75 people attended.

The hospital asserted that the claimant’s injury did not occur within the course and scope of her employment. When considering the question of work-relatedness, the ALJ relied on the factors considered in Jackson v. Cowden Manufacturing Company, 578 S.W.2d 259, 261 (Ky.App.1978), in which a worker was injured off the employer’s operating premises, outside working hours, while playing basketball on a team in the local parks department industrial league. To participate in the league, a team had to be “sponsored” by a local business or industry which paid its entry fee. Team membership was limited to employees of the sponsor. Employees purchased their own uniforms but were reimbursed by the company after it withdrew the team from competition following Jackson’s injury. The company name did not appear on the uniforms. Equipment was furnished by team members or the league, and team members rented practice facilities at their own expense. The team was organized by a group of interested employees who recruited others to play by passing around a sign-up sheet. They received no compensation, awards, or privileges for playing, and there was no evidence that the employer urged them to participate.

In concluding that Jackson’s injury was not work-related, the court applied a modified version of the test set forth in A. Larson, Workmen’s Compensation Law § 22 (1978), finding it to be helpful and harmonious with Kentucky workers’ compensation law. Id. As modified, the test provides that an injury that occurs during recreational activity may be viewed as being work-related if:

1. It occurs on the premises, during a lunch or recreational period, as a regular incident of the employment; or
2. The employer brings the activity ■within the orbit of the employment by expressly or impliedly requiring participation or by making the activity part of the service of the employee; or
3. The employer derives substantial direct benefit from the activity beyond the intangible benefit of an improvement in employee health and morale that is common to all kinds of recreation and social life; or
4. The employer exerts sufficient control over the activity to bring it within the orbit of the employment.

The court explained that when an injury occurs off the operating premises and outside working hours, the circumstances must be examined in their entirety to determine what facts connect the injury to the employment. Id. at 262. No one factor should be given conclusive weight. Instead, the weight of the evidence on all of the facts must support imposing liability on the employer.

Analyzing the evidence in the present case, the ALJ noted that the claimant’s injury did not occur on hospital premises or during the claimant’s normal lunch or recreational period. Furthermore, the employer did not expressly or impliedly require participation in the volleyball game or otherwise make it part of the claimant’s service as an employee. Nor did the employer exert sufficient control over the activity to bring it within the orbit of the employment or derive any substantial benefit from the picnic other than the intangible value of employee health and morale. Convinced that the claimant’s injury did not occur within the course and scope of the employment, the ALJ dismissed her claim.

The burden was on the claimant to prove every element of her claim, including that it was work-related. Having failed to do so, her burden on appeal was to show that the favorable evidence was so overwhelming that it compelled a decision in her favor as a matter of law. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986). Convinced that she failed to do so, the Board and the Court of Appeals affirmed.

The claimant’s injury occurred off the hospital premises and outside her normal working hours. Although the employer strongly encouraged employees to attend the picnic, the claimant conceded that she did not feel from reading the invitation that she was required to attend. Any benefit of the event to the employer consisted of improving employee morale, which was only intangible, not substantial. Finally, the pick-up volleyball game in which she was injured was neither organized nor controlled by the employer, and her participation was purely voluntary. Under the circumstances, the evidence clearly did not compel a favorable finding.

The decision of the Court of Appeals is affirmed.

LAMBERT, C.J, and COOPER, JOHNSTONE, ROACH and WINTERSHEIMER, JJ., concur.

GRAVES, J., dissents by separate opinion in which SCOTT, J., joins.

GRAVES,

Dissenting Justice.

Respectfully, I dissent.

The majority opinion and the decisions below deny the reality of the complex employment structure of hospitals in the highly competitive health care market. Having Ms. Smart at the picnic benefited the hospital because large employee attendance promoted community and institutional identity.

The claimant’s injury should be compen-sable under the Kentucky Workers’ Compensation Act as recreational activities have become an integral part of developing cooperation and efficiency at all levels within the hospital. This is particularly true not only when the employer gains a real benefit from the employee’s participation but also the employee perceives “command influence” to attend the event.

The picnic gave Ms. Smart an opportunity to interact with her superiors in an informal setting conducive to candid discussion about her performance in the work place environment.

Ms. Smart’s attendance at the picnic gave the hospital management an opportunity to evaluate her as a team player and observe her promotion potential based on her interactions with other employees in a social setting. Impressions made by the employee and reactions by other employees at the social function gave the hospital valuable personnel information about Ms. Smart’s leadership abilities, cooperativeness, and managerial skills.

Employees are now aware of the important role that social outings play because standard employee performance reports rank employees on the basis of their attitude toward their work. Participation in outings confirms the hospital’s evaluation whether an employee has a positive attitude and is an asset to the hospital.

A significant amount of the time spent at a recreational activity is devoted to cultivating work relationships which will aid in the efficient performance of her job at the hospital. Company gatherings outside the workplace are an important aspect of modern business practices and should be considered a part of the employment duties. The hospital paid for the picnic, planned and managed the picnic, and actively supported and encouraged the picnic.

In Section 22 of his treatise on Work-mens’ Compensation Law, Professor Larson points out that the employer has only to imply requiring participation to bring the “activity within the orbit of employment.” Moreover, Professor Larson adds that an employer derives substantial benefits from recreational activities beyond the intangible value of improvement in employee health and morale. It was logical and reasonable to infer that she should attend because of the advertised attendance of hospital management. She testified that her employer expected her to attend.

SCOTT, J., joins this dissent.