Frosty Treats, whose ice cream trucks have trundled up and down neighborhood streets for years blaring “Turkey in the Straw” and other children’s standards, is being sued for allowing a convicted sex criminal to fondle himself in front of children.
The suit was filed this week in state court by representatives of the two children, ages 9 and 11. The suit asks for a judgment of more than $75,000.
In the account contained in the lawsuit, Bruce Hays was driving a Frosty Treats ice cream truck in Wichita on Aug. 10, 2016, and “used the defendant’s truck to attract children to satisfy his perversion.” When the children approached his truck to buy ice cream, they discovered he was naked below the waist and fondling himself.
Hays was arrested, charged and pleaded no contest to three counts of lewd and lascivious behavior for crimes committed on Aug. 10 and 11. He was sentenced in January to two years in prison, plus six months in jail.
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What brought on the civil lawsuit is that Hays had an earlier set of sex crimes convictions, for aggravated sexual batteries that occurred in Cowley County in 2007.
Attorney Randy Rathbun, who represents the children, maintains that Frosty Treats has a duty to screen its drivers to prevent such incidents.
“The defendant is liable for its failure to perform even a cursory background search in this case,” he said.
Telephone messages left for the Kansas City, Mo., company were not returned Friday. A man at the Wichita location, 436 N. St. Francis, referred questions to a site manager who wasn’t there Friday afternoon.
The lawsuit turns on a point of labor law: Was Hays an employee of Frosty Treats or an independent contractor? In other words, was the company responsible for his criminal behavior on the job or not?
It’s a question that comes up a lot in business liability and labor law and has grown in prominence with the rise of sharing platforms such as Uber and Airbnb.
Rathbun said that in past lawsuits, Frosty Treats has maintained that the drivers are independent contractors and the company is not responsible for their conduct.
He said the Kansas Supreme Court has a detailed test on whether a worker qualifies as an employee or a contractor.
“It all comes down to the ability to control,” he said.
In a 2009 Eagle story about the Wichita Frosty Treats operation, the company called its drivers independent contractors. The company said, at the time, that drivers are run through background checks before they are signed.
The company said drivers paid the company 70 percent of their gross to cover the cost of the ice cream, truck rent and truck insurance. They keep the rest and pay for gas from that.
The company has locations in more than two dozen cities in 14 states. Frosty Treats arrived in Wichita when it bought Andy’s Ice Cream in 2005. In Kansas, it also has trucks in Topeka and the Kansas City area.
Contributing: Amy Leiker