by: Colin E. Flora
This week we return to one of the most important doctrines in tort law: respondeat superior. As we’ve discussed before, the doctrine permits an employer to be held liable for the acts of its employees, provided that the employer is acting within the scope of his/her employment. We have previously looked at the doctrine in the context of intentional torts and more recently as it relates to a claim for negligent hiring. Here, we look at more nuanced aspect of applying the doctrine: when might an employee heading to or from work trigger the doctrine. For that, we look to a recent decision from the Court of Appeals of Indiana: Hudgins v. Bemish. For our discussion, we will need to delve into the specific facts of the case.
Bemish was an employee of Ideal Heating Air Conditioning and Refrigeration, Inc. Part of his employment was that Ideal provided a company vehicle for him. In September 2011, Bemish picked up his foreman and drove to an Ideal jobsite in Valparaiso. A couple days later, Bemish and his foreman finished work and drove back to Indianapolis in the Ideal truck. Shortly after Bemish dropped his foreman off at his home, Bemish “collided with a line of vehicles stopped at a traffic light.” The collision injured Hudgins, who was riding a motorcycle. A few other points that will matter to our analysis are that the truck still had Ideal tools on it, including ladders, and Ideal had a
written policy on company vehicles contained in its Employee Handbook provided, in relevant part, that Ideal’s “[v]ehicles are to be used solely for work related business.” The company vehicle policy also provided that “[d]uring non-working hours, company vehicles may be driven home and kept on the employee[‘]s property or be returned to the shop at the end of the day.” Bemish drove his Ideal Truck home every day and stored it at his premises. Ideal paid for maintenance and gas for company-issued vehicles.
Now, let us turn to how the doctrine applies to these facts.
Hudgins filed a claim against both Bemish and Ideal. Among the three theories of liability against Ideal was a claim for vicarious liability under respondeat superior. Ideal argued that Bemish was not acting within the scope of his employment, and, therefore, the doctrine was inapplicable. The trial court agreed and awarded summary judgment. At the core of the trial court’s decision is the rule that “an employee on his way to work is normally not in the employment of the corporation.” The appeal, however, turned on the exception to normality.
To determine whether the case before it was abnormal, the Court of Appeals looked to guidance from the Indiana Supreme Court:
Our supreme court has held that “an employee on his way to work is normally not in the employment of the corporation.” However, our Court has explained that “[t]he use of the qualifying word ‘normally’ [in Biel, Inc. v. Kirsch] merely allows for an exception to the general rule for those instances where the employee is not just going to work, but also performing an errand for or otherwise providing some service or benefit to the company, other than merely showing up for work.” Thus, “[t]he critical inquiry is . . . whether the employee is in the service of the employer.” “Even though an employee violates the employer’s rules, orders, or instructions, or engages in expressly forbidden actions, an employer may be held accountable for the wrongful act if the employee was acting within the scope of employment.”
In order to understand how the rule was applied in Hudgins, we need to look, for a moment, at the procedural posture of the case. The trial court awarded summary judgment to Bemish. Summary judgment is a procedural device, whereby a party is able to seek court determination of an issue or the entire case prior to trial. The standard for doing so is fairly onerous, particularly in Indiana, and requires a party seeking summary judgment to establish the absence of disputes of fact and that the issue(s) before the court may be determined as a pure matter of law.
Let us illustrate when summary judgment might be appropriate and when it might not through an example. Jim is driving down a country road and gets pulled over. Jim is given a ticket for driving fifty-five miles per hour. The ticket states that Jim was driving twenty miles over the speed limit. In the resulting proceedings, Jim raises two arguments against the ticket: (1) that he was only driving forty-five, and (2) that the speed limit where he was stopped is actually forty-five, not thirty-five as the ticket asserts. If Jim sought summary judgment by arguing both issues, one of those issues would be suitable for determination at summary judgment and the other would not. The first issue, whether Jim was driving fifty-five, is the classic dispute of fact; it is a he-said/she-said. Jim says he was only going forty-five and the officer says it was fifty-five. It is a matter for trial to determine whether that is true. The second issue, however, is a pure question of law: what does the law say the speed limit is for that section of road?
Under Indiana law, “it is well established that whether an employee’s actions were within the scope of employment is a question of fact to be determined by the factfinder.” Consequently, unless there is zero dispute of fact as to what Bemish was doing, then summary judgment is not permissible on the respondeat superior issue. However, the trial court found that there was no such dispute–Bemish was just heading home, the trial court concluded. If that is so, then Bemish would be entitled to win on that issue. The Court of Appeals, however, found questions of fact that needed to be resolved by a jury:
While Gooderum’s affidavit averred that, at the time of the Collision, Bemish was “commut[ing] home after ending his work shift” and “was not performing any task or activity relating to his employment for Ideal[,]” Ideal’s other designated evidence conflicted with that averment. Specifically, Bemish’s deposition contains testimony that he believed that he was acting within the scope of his employment when he caused the Collision that injured Hudgins. In his deposition, he also testified that he used the Ideal Truck to haul materials and that his driving of the Ideal Truck was for business use only. Additionally, Ideal’s Employee Handbook provides that company vehicles, such as the Ideal Truck, were to be used “solely for work related business.” The Employee Handbook also revealed that employees, such as Bemish, who were given a company vehicle were required to either drive the company vehicle to their home and keep it on their property or to return it to the shop.
Because the evidence creates an internal contradiction, summary judgment must be denied.
Interestingly, respondeat superior was not the sole theory of liability asserted against Ideal. A second theory was negligent entrustment. Unfortunately, negligent entrustment was not argued on appeal. It is one of my favorite theories of liability. As Mark S. Dennison & Warren Freedman, authors of Handling Toxic Tort Litigation, have pointed out, it is “[a]n old common law cause of action” that is perhaps too often overlooked. The full name of the theory is “negligent entrustment of dangerous instrumentality to an incompetent or minor.” Indiana caselaw provides a classic example in the case Broadstreet v. Hall, in which a father was held liable for dispatching his son, “a minor of tender years,” to deliver a message alone on horseback. The child was known to be a poor rider and the horse was known to be difficult to manage. The child’s horse collided with a buggy, casting the buggy’s occupant to the ground. The father was held liable because he acted negligently in dispatching the unskilled child on the horse, resulting in the patently foreseeable accident to occur.
Notably, negligent entrustment is not a theory of vicarious liability such as respondeat superior. The father in Broadstreet was not held liable merely because the child was acting within the scope of his employment–although that would have been a permissible application of respondeat superior–rather, he was held liable because he knew the risks and created the dangerous circumstances. Modern parents should be mindful of this little slice from nineteenth century Hoosier life, since the logic is no less applicable to giving your teenager the keys.
The third theory of liability, the second argued on appeal, was negligent hiring. As we recently discussed, Indiana is in the minority of states that permits a claim for negligent hiring even when the defendant admits that its employee was acting within the scope of his/her employment, thereby triggering liability under respondeat superior. Indiana as an exception to the general approach does not alter the analysis in this case: Ideal has not conceded that Bemish was acting within the scope of his employment.
The court outlined the requirements for establishing a claim for negligent hiring and retention:
“Indiana recognizes the tort of negligent hiring and retention of an employee” and has adopted Restatement § 317 as the standard in regard to such a claim. Restatement § 317, provides, in relevant part:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
* * * * *
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
“Under the Restatement [§ 317], to determine whether an employer is liable for negligent hiring or retention of an employee, the court must determine if the employer exercised reasonable care.” “In negligence cases, summary judgment is ‘rarely appropriate.’” “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.”
In order for Ideal to obtain summary judgment in its favor on this negligent hiring/retention claim, it was required to designate evidence to affirmatively negate or demonstrate that one of these elements of Restatement § 317 was not satisfied. . . .
* * * * *
Ideal’s mere assertion that the Hudginses would not be able to prove the necessary elements of their Restatement § 317 claim does not entitle it to summary judgment. . . . Because Ideal did not designate any specific evidence to affirmatively negate an element of the Restatement § 317 claim, it failed to meet its initial summary judgment burden.
Notably, the issue of negligent hiring and retention turned on application of Indiana’s summary judgment standard, which is higher than the federal standard. In federal courts, summary judgment may be used to test whether the plaintiff has evidence to create a question of fact. In Indiana, however, the defendant must proactively establish that the plaintiff cannot prove its case at trial. In Hudgins, the defendant argued that the plaintiffs provided no evidence to support the claim. In federal court, that would likely have been enough. In Indiana state court, however, it is not.
Join us again next time for further discussion of developments in the law.
- Hudgins v. Bemish, 64 N.E.3d 923 (Ind. Ct. App. 2016) (Pyle, J.).
- Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617 (1959).
- Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907) (Jordan, J.).
- Mark S. Dennison & Warren Freedman, Handling Toxic Tort Litigation, 57 Am. Jur. Trials 395, 423 § 11 (1995).
- Colin E. Flora, Employer Liability: Respondeat Superior Doctrine, Hoosier Litig. Blog (Apr. 26, 2013).
- Colin E. Flora, Indiana: When Can an Employer be Liable for an Intentional Tort?, Hoosier Litig. Blog (Dec. 11, 2015).
- Colin E. Flora, Indiana Rejoins Minority Permitting Negligent Hiring Claims Even Where Respondeat Superior is Admitted, Hoosier Litig. Blog (Sept. 30, 2016).
- Colin E. Flora, Indiana Court Explains Meaningful Difference Between State & Federal Summary Judgment Standard, Hoosier Litig. Blog (Dec. 13, 2013).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.