1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o . 114,937

K EVIN E. R EARDON , Special Administrator,

for the Estate of M ARILY N K. P ARSON S , Appel lee
,

v

.
J ON M. K ING , Defendant

, a nd T HE T RUST C OMPANY OF K ANSAS ,

Appellant

.

SYLLABUS BY THE COUR T

In Kansas, an employer owes a duty of reasonable care under the circumstances to prevent harm to third parties caused by its employees when those employees are acting within the scope of their employment

. More particularized articulations of this duty are
dis approved.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 17, 2017. Appeal from Leavenworth D istrict C ourt; D AVID J. K ING , judge . Opinion filed November 15 , 20 19. Judgment of the Court of Appeals reversing the distr ict court is reversed. Judgment of the district court is
reversed and the case is remanded with directions

.

Rachel N. Wetta , of Foulston Siefkin LLP , of Wichita , argued the cause , and Darrell L. Warta , of the same firm, was with her on the briefs for appellant.

Michael P. Crow , of Crow & Associates, of Leavenworth, argued the cause, and Peter C.
Rober t son and Dan Heinz , of the same firm, were with him on the brief for appellee

.2

The opinion of the court was delivered by

S TEGALL , J.: The Trust Company of Kansas (TCK) employed Jon M. King, a
Kansas

- licensed attorney, as a trust officer. TCK had a policy prohibiting employees from practicing law during employment. U nbeknownst to TCK, King represented his
TCK client

— Marilyn K. Parsons

— in legal matters before, during, and after his employment with TCK. In his capacity as a trust officer, King would transfer funds from
Parsons' TCK account to her personal account to pay a flat rate legal fee of $5,000 per
month. Once TCK learned a bout King's attorney

- client relationship with Parsons, TCK
filed a complaint of suspected elder abuse with the Kansas Department of Social and
Rehabilitation Services and an ethic s complaint with the Kansas Disciplinary
Administrator's Office.

Further investigation by the Kansas Disciplinary Administrator's Office revealed that Parsons paid King approximately $250,271.50 in attorney fees during his employment at TCK. As a result, King voluntarily surrendered his license to practice law.
See In r e King , 297 Kan. 208 , 300 P.3d 643 (2013). Soon after, Parsons filed a lawsuit against TCK and King , asserting various theories of liability

. The case went to trial
, and a jury found TCK liable for " negligent training " and King liable for breach of fiduciary duty. The Court of Appeals reversed the jury's verdict against TCK , finding the evidence
insufficient. Accordingly, the panel remanded the case with instructions to enter judgment as a matter of law in favor of TCK

.

On review, we conclude the district court ' s instructions failed to present the jury with an accurate statement of our negligence law and incorrectly separated Parsons ' negligence claim against TCK into two causes of action. As a result of these errors, questions of fact remain . We reverse the Court of Appeals and remand this matter for a new trial decided on proper instructions.3 P ROCEDURAL B ACKGROUND

At this stage of the litigation, the key facts are procedura l and they are not in dispute. Parsons sued TCK and King seeking $250,271.50 in damages plus an additional $12,111.99 for loss of income and loss of investment appreciation. After Parsons
amended her complaint several times and each party filed multiple pretrial questionnaires, the district court issued a pretrial order describing three separate claims against TCK : " (1) breach of contract, (2) breach of fiduciary duty, and (3) failure to properly supervise its employee, Jon King. "

The case proceeded to a four

- day jury trial. At the close of Parsons' case

- in

- chief, TCK moved for judgment as a matter of law on all claims against TCK. After hearing oral argument, the court granted TCK's motion for judgment as a matter of law on part of
Parsons' breach of contract claim. The court then summarized Parsons ' remaining claims
as follows :

"What I have is

— is the

— the claims that plaintiff h as asserted against TCK that survived is their breach of contract claim, partially, one of their specifications of breach of contract, I've ruled that there's not evidence to support there was a breach.

" [S] o, breach of contract, breach of fiduciary duty, negligent representation, and negligent supervision."

The district court proceeded to finalize its jury instructions and verdict form. The
instructions included a claim of " negligent supervision and train ing " against TCK :4

" INSTRUCTION NO . 18

" Negligent supervision and training claim against Trust Company of Kansas

" The plaintiff, Marilyn Kay Parsons, claims the defendant, Trust Company of Kansas, failed to adequately supervise and train Jon M. King by the following:

" (1) Failing to train and orient Jon M. King that he was prohibited from practicing law for TCK clients while employed by TCK

" (2) Failing to provide training regarding TCK company policies

" (3) Failing to provide training regarding fi duciary duties to TCK clients

" (4) Failing to verify that Jon M. King did not engage in the private practice of law while employed by TCK

" The plaintiff must prove her claim for negligent supervision and training by a preponderance of the evidence.

" In response to this claim, the defendant, Trust Company of Kansas, denies that it failed to adequately supervise and train Jon M. King. It maintains that plaintiff's losses are not attributable to any failure of training and supervision on its part, but rathe r to the intentional wrongful acts of Jon M. King, of which it was not aware. "

" INSTRUCTION NO . 25

" Negligent s upervision and t raining

" In considering the plaintiff's claim against Trust Company of Kansas for negligent supervision and training, you should consider the following:

" 1. An employer has a duty to supervise an employee it knows, or has reason to know, is unfit to undertake the responsibilities of his or her employment.5 " 2. Negligent supervision entails either inadequate oversight and rev iew of an employee in the performance of his or her job duties or failing to control an employee with propensities that might pose a danger.

" 3. A claim based on negligent training depends upon establishing facts showing that more or better training would have prevented the harm.

" The plaintiff must prove her claim for negligent supervision and training by a preponderance of the evidence. "

But the verdict form separated the " claims " of negligent supervision and negligent training into two distinct causes of action:

" PLAINTIFF '

S CLAIMS AGAINST THE DEFENDANT TRUST COMPANY OF KANSAS

. . . .

" 10. Do you find that plaintiff has proven by a preponderance of the evidence that the defendant Trust Company of Kansas negligently failed to supervise Jon M. King?

. . .

" 11. Do you find that plaintiff has proven by a preponderance of the evidence that the defendant Trust Company of Kansas negligently failed to train Jon M. King?"

TCK then questioned the instructions and informed the court that " [t]he cl aim against us was stated negligent supervision and training claim. There was ' and ' it was one claim with both supervision and training. " But the court explained t he separation was
intentional because negligent supervision and negligent training had " different
standard [ s ]

. " After this explanation, TCK had no further objection

.6

These instructions, along with the verdict form, were given to the jury. In the end,

t he case submitted to the jury include d five claims against TCK: (1) breach of contract; (2) breach of fiduciary duty; (3) n e gligent misrepresentation; (4) n egligent failu re to supervise King; and (5) n egligent failure to train K ing.

Ultimately, the jury found TCK liable for negligent training and King liable for
bre ach of fiduciary duties. The jury returned a defendant's verdict on the remainder of Parsons' claims against TCK and King. The jury awarded damages of $125,135. 7 5 plus interest of $6,055.99

— half the amount claimed

— jointly and severally against TCK and King.

TCK timely filed a renewed motion for judgment as a matter of law, or, in the alternative, a new trial. The district court denied the motion and TCK timely appealed. King did not appeal the jury's finding against him for breach of fiduciary duty, and
Parsons did not cross

- appeal.

At the Court of Appeals, TCK a rgued : (1) there was insufficient evidence to support the verdict; (2) the district court should have granted its motion for judgment as a matter of law; and (3) the jury instructions on P arsons' negligence claims were erroneous

. Parsons v. King , No. 114 , 937, 2017 WL 1035190, at *1 (Kan. App. 2017) (unpublished opinion) . The Court of Appeals reversed and remanded with instruction s for the district

court to enter judgment as a matter of law in favor of TCK

. 2017 WL 1035190, at *5. The panel found the evidence could not support the jury verdict for negligent failure to train even when considering all the facts and inferences that could reasonably be drawn in
Parsons ' favor. 2017 WL 1035190, a t *4. According to the panel
, the evidence failed to
show more or better training would have prevented Parsons ' loss and that it " rather

. . . focused on whether TCK adequately supervised King. " 2017 WL 1035190, at *4.7

Parsons filed a petition for review arguing the Court of Appeals erred by finding TCK was entitled to judgment as a matter of law on Parsons ' negligence claim. TCK responded to Parsons' petition
, asking us to consider the district court's jury instructions on Parsons' negligence claim or claims. We granted Parsons' petition and review TCK's
issue raised in its response to provide guidance on remand. See Supreme Court Rule 8.03(c)(3) (2017 Kan. S. Ct. R. 55) (" In a civil case, the response also may present for review adverse rulings or decisions of the district court that should be considered by the Supreme Court in the event of a new trial, provided that the respondent raised the issues
in the Cour t of Appeals." ) ; see also Puckett v. Mt. Carmel Regional Medical Center , 290 Kan. 406, 443, 228 P.3d 1048 (2010) (reviewing an issue raised in a response to petition
for review under Supreme Court Rule 8 .03[c][3] ).

A NALYSIS

W e take the unusual step of beginning with our conclusion. In short, w e agree with both parties. The trial court's jury instructions on Parsons' negligence claim were

erroneous. And as a direct result of this error, the Court of Appeals erred in granting judgment as a matter of law i n favor of TCK. T he instructions and verdict form in this

case were so erroneous that an after

- the

- fact evaluation of the evidence is not possible. The jury instructions did not adequately or accurately explain the elements of Parsons ' negligence claim. Th is prevented the jury from ever being able to consider whether Parsons had sufficiently proven each of the elements of the claim. Given this failure, any review of the evidence for sufficiency became futile and the case must now be returned to
the district court for a new trial on proper instructions.

The proper place to begin our analysis is with the jury instructions

. When

re viewing jury instruction issues, we follow a three step process to determin e : (1) whether the issue is reviewable; (2) whether any error occurred; and (3) whether the error requires reversal. Siruta v. Siruta , 301 Kan. 757, 771 , 348 P.3d 549 (2015)

.8

The first and third steps are related because the standard for determining whether an error requires reversal depends on whether the party preserved the issue. 301 Kan. at
771. TCK failed to object to the district court's jury instruction and verdict form with respect to Parsons ' claim of negligent su pervision and negligent training

. When an alleged instruction error was not objected to below we still review whether the instruction was legally and factually appropriate
, but will reverse only for " clear error. " 301 Kan. at
772 ( " '" A n instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury
would have returned a different verdict. "' " ).

When conducting an error analysis, we must determine whether the instruction s

were legally and factually appropriate. 301 Kan. at 77 5

. W e consider the instructions as a
whole and review whether the instructions " 'properly and fairly stated the law as applied
to the facts of the case and could not have reasonably misled the jury. '" 301 Kan. at 775 ( quo ting State v. Horton , 300 Kan. 477, 491, 331 P.3d 752 [ 2014 ] ). For an instruction to be legally appropriate, it must fairly and accurately communicate the applicable law to the jury

. Castleberry v. DeBrot
, 308 Kan. 791, 802, 424 P.3d 495 (2018). Thus, determining whether the instructions in this case were legally appropriate require us to
review the law applicable to a negligence cause of action

.

In its simplest form, a negligence claim requires a plaintiff to prove four essential
elements: (1) defendant owed a duty to the plaintiff; (2) defendant breached that duty; (3) plaintiff's injuries were caused by the defendant's breach; and (4) plaintiff suffered damages. Patt erson v. Cowley County, Kansas , 307 Kan. 616, 622, 413 P.3d 432 (2018).

The first of these elements

— the existence of a duty

— is actually a question of law
rather than one of fact

. Siruta , 301 Kan. at 76 6

- 6 7. Because the existence of a duty is a question of law, the court must decide whether a duty exist s and how to articulate that9

duty

. Dobbs, Hayden & Bublick, The Law of Torts § 164 (2d ed. 2019 ). Thus, one of the crucial jury instructions in any ne gligence c ause of action must be the trial court ' s articulation of the duty owed by the defendant to the plaintiff. If this instruction is wrong or misleading, the jury will be incapable of performing its fact

- finding role in determining the existence (or lack thereof) of the latter three elements.

Here, Parsons asserted a negligence claim against TCK as an employer. Although
this claim involves the conduct of TCK's employee and alleged harm to a third person
, the cause of action seeks to impose direct liabili ty on TCK for its allegedly negligent acts causing the harm, not for any negligence or faul t on the part of the employee. As a general rule, in the absence of a " special relationship " a defendant does not owe a duty to third parties. C.J.W. v. State , 253 Kan. 1, 7

- 8, 853 P.2d 4 (1993). Kansas common law, however, recognizes a " special relationship " between employers and third parties who come into contact with their employees. See, e.g., Kansas State Bank & Tr. Co. v. Specialized Transp or t

ation Services, I

nc. , 249 Kan. 348, 362 , 819 P.2d 587 (1991). This relationship creates a legal duty owed to the third party by the employer

. But how is this duty defined by Kansas law and how should it be explained to a jury?

A review of our caselaw makes it clear that an employe r owes a duty of reasonable

care under the circumstances to prevent harm to third parties caused by its employees when those employees are acting within the scope of their employment

. See, e.g., Kansas
State Bank & Tr. Co. , 249 Kan. at 362 (expla ining that liability results from the employer having " reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor " ); Plains Res ources , Inc. v. Gable , 235 Kan. 580, 59 0 , 682 P.2d 653 (1984) ( " an employer has a duty to use reasonable care in the
selectio n and retention of employees " ) ; see also Restatement (Third) of Torts § 41,

comment c (2012) ( "The duty

. . . is to exercise reasonable care under the
circumstances. " ).10

By defining a n employer's duty as one of " reasonable care
, " we reserve the question of what specific acts constitute " reasonable care " in any of the infinite factual circumstances that could exist to the second element of a neglig ence claim

— breach of the duty. And determining whether a legal duty was breached is a question of fact for the jury.

We acknowledge that there has been a trend in recent years toward defining the legal duty owed in negligence cases in ever narrower and more particularized ways. This

c an have the deleterious effect of taking the fact question of breach away from the jury

" under the guise of deciding the question of ' duty ' in its primary sense. " Goldberg & Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law , 54 Vand . L. Rev. 657, 7 13 (2001). Particularized duties tend to sneak conclusions about the facts of particular cases into what are intended to be general standard s . Dobbs, The Law of Torts § 226 (2000). But d uty rules are not meant to be fact specific. Rather, they are to set broadly applicable guidelines for public behavior. Cardi, Purging Foreseeability , 58 Vand. L. Rev. 739, 754 (2005 ). Otherwise, the line between the first and second elements of a negligence claim

— duty and breac h

— are blurred.

T oday ' s case is a good example of that trend. The instructions told the jury below that TCK had specific, discrete duties " to train " and " to supervise. " But this misstates Kansas law. Employers in Kansas do not have a duty to third parties to train or to supervise their employees. They have a duty to exercise reasonable care under the
circumstances. A failure to either train or to supervise may (or may not) constitute a breach of that duty

—

just as other specific facts may (or may not) consti tute a breach

. But these are fact questions properly belonging to the second element of the negligence claim,
not the first.

The Supreme Court of Illinois helpfully confronted this unfortunate trend in Marshall v. Burger King Corp oration , 222 Ill. 2d 422, 856 N.E.2d 1048 (20 06)

. There
,11

t he plaintiff had filed a negligence action against Burger King due to the death of his son.
The decedent was killed when a car crashed through the window of the Burger King restaurant where the decedent was eating. Plaintiff alleged that Burger King and Davekiz
, Inc.

— Burger King's franchisee

— were negligent for failing to place safety barriers such
as vertical concrete pillars or poles in front of the restaurant. This, they argued, would have prevented Fritz' car from comin g through the window and killing the decedent.
Defendants moved to dismiss arguing they owed no duty to protect the decedent from the injury caused by Fritz' car. The trial c ourt granted the motion holding there was no duty owed by the defendants to place barriers in front of their restaurant. The court reasoned
that
, given the likelihood of such an accident happening was minor , recognizing a duty
for a ll restaurant owners to construct such barriers was impractical. Marshall , 222 Ill. 2d
at 427.

Ultimately, the Illinois Supreme Court reversed the trial court . 222 Ill. 2d at 425. In doing so, the court observed that by advocating for a particularized statement of duty
, Burger King and the other defendants were

"actually requesting that we determine, as a matter of law, that they did not breach their duty of care. It is inadvisable for courts to conflate the concepts of duty and breach in this manner. Courts could, after all, ' state an infinite number of duties if they spoke in highly particular terms, ' and while particularized statements of duty may be comprehensi ble,

' they use the term duty to state conclusions about the facts of particular cases, not as a general standard. ' 1 D. Dobbs, Torts § 226, at 577 (200 1 ); see also 54 Vand. L. Rev. at 712

- 17 (discussing problems associated with using the duty element of ne gligence to render decisions that no breach occurred as a matter of law). Thus, the issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact

- specif ic formulation. Because of the special relationship between defendants and the decedent, they owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That ques tion cannot be answered at this stage of the12

proceedings. See Espinoza , 165 Ill.2d at 114 (issue of breach is for jury to decide provided there is genuine issue of material fact regarding that issue)." 222 Ill. 2d at 443

- 44.

We find this discussion instru ctive and adopt the same posture toward today ' s

case. Like the trial court in Marshall , the trial court here constructed a definition of TCK's duty so fact specific that on review by the Court of Appeals, the line between duty and breach disappeared. In other words, the duty was defined with such particularity that on review, the Court of Appeals determined that th ere was no evidence of breach.

Instructing the jury on a " duty to supervise " or a "duty to train" is analogous to instructing a jury that Bur ger King has a duty to install concrete barriers outside its

restaurants . Rather than providing the jury with a standard against which it could judge
T CK's actions, the instructions described allegations which, if proven, might constitute a breach of TCK's reasonable care duty. T he breach element of Parsons' negligence claim

concerns the factual question of whether TCK took reasonable steps, in light of the foreseeable probability and magnitude of any harm, to prevent harm. See Restatement (Third) of Torts : Physical & Emotional Harm § 41, comment e (2012). To fulfill its duty of reasonable care to protect Parsons against risks posed by King, TCK did not necessarily have to supervise or train King. A jury might find that, through other actio ns, TCK did fulfill its duty of reasonable care. Or alternatively, the jury might decide that some act or omission by TCK falling outside the categories of " train " or " supervise " amounted to a breach of its duty of reasonable care. This determination
, however, should
be left to the jury.

The instructions, c ombined with the verdict form, likewise erroneously created two negligence causes of action where only one existed. By separating negligent supervision and negligent training into two separate c laim s the jury was left to a ssume that an employer owes two separate legal duties to a third party: (1) a duty to supervise13

its employees and (2) a duty to train its employees. Negligence causes of action, however, are wholly derivative of the duty owed by th e defendant. See Boulanger v. Pol
, 258 Kan. 289, 296

- 97, 900 P. 2 d 823 (1995) ( " ' In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. ' " ). And in Kansas, an employer

owes third parties a sing le duty of reasonable care
, as we have described

.

While an employer's practices when hiring, training, and supervisi ng its employees may be evidence of a breach of an employer's duty of reasonable care to third parties, they are not separate causes of action

. Here , TCK only owed Parsons one duty

— the duty
to exercise reasonable care under the circumstances to prevent Parsons or any other customer from being harmed by its employees. And with only one duty recognized, only
one cause of action for breach existed. To the extent our pri or caselaw contributed to this confusion by using terms like " negligent supervision " or " negligent training, " we make the conscientious decision today to move away from such characterizations of the anatomy of a negligence claim in Kansas.

We have concluded the jury instructions erred : ( 1) by failing to properly state the legal duty owed by TCK to Parsons; and ( 2) by separating Parson s ' negligent claim into two separate causes of action . Now we must determine whether the se error s were harml ess o r whether they require reversal. Because TCK failed to object to the
instruction s at trial, we will reverse only for clear error. Siruta , 301 Kan. at 772. " ' " An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have
returned a different verdict. " ' " Siruta , 301 Kan. at 772 (quoting Hawkinson v. Bennett
, 265 Kan. 564, 581, 962 P.2d 445 [ 1998 ] ). In other words, if we are firmly convinced that the legally inappropriate definition of negligence affected the verdict, we must reverse. See Siruta , 301 Kan. at 780; State v. Williams , 295 Kan. 506, 516, 286 P.3d 195 (2012 ).14

This case is unique in that the e ffect of the error on the ver dict did not become
clear until the Court of Appeals reviewed the verdict. After all, Parsons won at trial. But due to the defects in the instructions, the verdict was infirm on appeal. In fact, the verdict was flawed at the outset because the jury found T CK liable for breaching a duty that does

n o t exist.

Had the jury been properly instructed, any jury verdict in favor of Parsons on her negligence claim would likely have surviv ed a sufficiency challenge. It was only because the jury was factually cramped by the erroneous instructions that the Court of Appeals
was able to reach its conclu sion of insufficient evidence. We do not know whether a properly instructed jury would return a verdict in favor of Parsons. But we are firmly convinced that the legal erro rs we have identified with the instructions did affect the verdict. Therefore, we must reverse and remand for a new trial on l egally appropriate
instructions.

Reversed and remanded with directions

.

B EIER and J OHNSON , JJ., not participating. 1
D AVID W ILLIAM R OGERS , District Judge, assigned. 2

1 REPORTER'S NOTE: Justice Johnson heard oral arguments but did not participa t e in the final decision in cas e No. 114,937. Justice Johnson retired effective September 6, 2019.

2 REPORTER'S NOTE: District Judge Rogers was appointed to hear case No. 114,937 vice Justice Beier under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Cons titution.