• Vicarious liability, through the legal doctrine of respondeat superior; or
• Direct liability (i.e., negligent training, negligent hiring, negligent supervision, etc.).

Recently, the Indiana Supreme Court ruled that plaintiffs in these cases may move forward with one of the two legal theories – but not both.

This Indiana car accident case, according to court records, involves the alleged negligence of a pizza delivery driver that resulted in a fatal crash that killed a man on a scooter.

It occurred in August 2012 while the defendant driver, while working for a franchise of a national pizza chain, was operating her own vehicle when she struck the back of a scooter operated by the decedent. The rider was tossed off the scooter and onto the road, where he was run over by another motorist. His injuries proved fatal.more

The decedent’s estate filed an Indiana wrongful death lawsuit against the pizza delivery driver, the driver who ran over him, and the pizza franchise company. As far as the claims against the pizza franchise, the plaintiff alleged negligence under the doctrine of respondeat superior (Latin for, “let the master answer”) and also direct negligence for negligent hiring, negligent training, and negligent supervision. Vicarious liability does not require proof of direct negligence by the employer, only that the employee – acting in the course and scope of employment – was negligent.

The franchise filed a motion for partial summary judgment, arguing that since it had already conceded the driver was acting in the course and scope of employment, the chain could only be held vicariously liable under the doctrine of respondeat superior. The trial court agreed, granting that motion and dismissing the plaintiff’s claims of negligent hiring, training, and supervision.

The estate appealed, and the Indiana Court of Appeals reversed and remanded. The appellate court ruled the estate could pursue both theories of recovery because they are separate torts not derivative of an employee’s negligence. The court also found this ruling to be consistent with Indiana’s Comparative Fault Act.

However, the Indiana Supreme Court has now vacated the appellate court ruling, reinstating the ruling of the trial court and affirming the 1974 appellate court ruling in Tindall v. Enderle on this issue.

In the Tindall case, a bar employee shot and killed a patron, and the estate of the patron filed a negligence action against the tavern, alleging negligent hiring and retention. Prior to trial, the defendant bar stipulated the worker was acting in the course and scope of employment at the time of the shooting and sought to exclude evidence of the employee’s prior assaults on other patrons. (The estate had intended to use this as evidence of negligent hiring and retention.) The trial court granted the tavern’s motion, effectively killing the negligent hiring and retention claim. The court of appeals decided that allowing both claims was undue because each is derived from the negligence of the employee, so it’s wholly unnecessary to a plaintiff’s recovery of damages to allow both.

The pizza franchise in this case argued the Tindall case is well settled, and absent any special circumstance, claims of respondeat superior and negligent hiring are duplicative. The state supreme court agreed.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Sedam v. 2JR Pizza Enterprises LLC, Oct. 31, 2017, Indiana Supreme Court

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Premises liability refers to the duty owed by the property owner to the visitor. If that duty was breached and injuries resulted, the person hurt can pursue an Indiana premises liability claim against the property owner. The question of “duty” relies heavily on the determination of the visitor’s status. For example, a business invitee, someone invited to a business property for the benefit of the business, is owed the highest duty of care. Property owners must not only warn business invitees of potential dangers and address them quickly, but also they must regularly check for them. By contrast, if you are a trespasser, a property owner need only not intentionally harm you or set traps (although there may be exceptions for child trespassers).

Recently, the Indiana Court of Appeals ruled in favor of a premises liability plaintiff who alleged she was seriously injured when she tripped and fell on a missed step at an aviation company during an open house with her young grandson.

According to court records, the plaintiff fell while she was walking from a pilot’s lounge into the hangar. Just across the threshold was a five-inch step down that she did not realize was there.

A set of double doors was between the two rooms, and usually, when the doors remained open, the facility put chairs in front of the door with a sign warning people to watch their step. However, the plaintiff arrived early to the event, so the chairs were not yet in place.

The area was lit brightly, and the plaintiff was looking straight ahead, looking toward her grandson, who was a few steps ahead of her, walking toward a plane. She didn’t see there was a step down. As she walked through the door, she missed the step and fell. She realized after she fell that there was a red sign with white letters cautioning about the fall, but the sign was laid flat on the floor. Another sign warning of the step was obscured by the door.

She later posted about the incident on social media, saying she was “so excited I didn’t watch my step and fell.” Her ankle was injured, and she was treated at a local emergency room. (This is one example of how social media posts can come back to haunt plaintiffs later, should they decide to pursue legal action.)

Two years later, the plaintiff filed an Indiana personal injury lawsuit against the defendant aviation company. The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed, and the appellate court reversed, meaning the case can now proceed.

Summary judgment, which is a judgment as a matter of law favoring one side or the other prior to trial, is usually not appropriate in negligence cases because so many elements are not matters of law but instead matters of fact. Matters of fact are supposed to be weighed by a jury, rather than a judge.

It’s well-settled in Indiana law that landowners must exercise reasonable care for the safety of invitees, but they are not responsible to ensure an invitee’s safety. Conditions that pose a reasonable risk of harm won’t trigger a finding of premises liability. In this case, the appellate court found the trial court’s grant of summary judgment appeared to result from the conclusion that a step down was not an unreasonable risk of harm. The appellate court said it could not agree with this assessment, posed as a matter of law.

While stair steps are a common occurrence, the court noted, there could be conditions of stairs that create an unreasonable risk. This particular step was located in an unusual spot – right at the threshold of a doorway. The appeals panel ruled there are questions of fact as to whether the step created an unreasonable risk. The case was remanded back to the trial court for further proceedings.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Carol Walters v. JS Aviation, Inc. d/b/a Eagle Aircraft, Sept. 7, 2017, Indiana Court of Appeals

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Corporate responsibility in such cases is based on the legal theory of respondeat superior, which is Latin for “Let the master answer.” What this means is that one can establish a claim of liability against an employer for the negligent acts of an employee carried out in the scope of employment – even if the employer did not engage in any negligent act. This is an important issue because it can directly affect how much compensation you may be able to collect for your injuries. The key determination that has to be made in order for respondeat superior to apply is whether the employee was acting in the scope of employment. Courts have generally broken this down into a four-part test: whether the conduct is similar to that which the employee was hired to perform, whether the action occurred mostly within the authorized spacial and temporal limits of employment, whether the action furthered the employer’s business, and whether the conduct, although unauthorized, was foreseeable in view of the employee’s duties.

In the recent case of Hudgins v. Bemish, the Indiana Court of Appeals held that a trial court erred in granting summary judgment to a business defendant that argued it was not liable for the negligent acts of its employee. The appellate justices decided there were conflicting facts and inferences that could be drawn as to whether the driver was acting in the course and scope of his employment. Also, the defendant company hadn’t met its initial proof burden for summary judgment on the issues of negligent hiring and retention (which are direct liability claims).

According to court records, the defendant driver was an employee of the defendant heating and cooling company in 2011, working as an installer. As part of his job, he was supplied with a company truck. The written policy on company vehicles indicates vehicles are to be used solely for work-related purposes. Company vehicles may be driven home by the employee each day or can be dropped off and kept at the shop. The defendant driver drove his work truck home every day and stored it on his property. The company paid maintenance and gas for those vehicles.

Workers were required to sign a vehicle usage policy that indicated workers weren’t to use the company vehicles for any personal use.

In September 2011, the defendant driver was assigned to work on a project at a site in Valparaiso. He drove the truck, loaded up equipment from the shop, and picked up his foreman and drove to the job site. He and the foreman performed work there over the course of several days. One day, after working for several hours on site, the pair drove back to Indianapolis in the truck. The defendant dropped off the foreman at his house and stayed for a few minutes. He then drove the truck near 16th Street and Georgetown Road and was involved in a collision with a line of vehicles stopped at a a red traffic light.

The impact caused a chain reaction that included the plaintiff, who was on his motorcycle and was injured. At the time of the collision, the defendant driver had several ladders with the defendant company’s logo on it. One of those fell onto the road at the site of the car accident.

The defendant driver then fled the scene in the truck, drove another few blocks, and then was involved in a second crash, when he struck another vehicle at a traffic light. When officers caught up to the defendant driver at the second crash site, they noted he “appeared dazed” and had trouble keeping his eyes open. He reportedly conceded that he had smoked “spice,” a synthetic drug, while on the side of the road.

Thereafter, the defendant company fired the defendant driver.

The motorcyclist and his wife filed claims against the driver and the company, alleging the driver was negligent in causing his injuries, and the employer was liable based on the theory of respondeat superior, as well as for negligent hiring and negligent retention.

The company moved for summary judgment on the claims against it. It alleged the worker was not acting in the scope of his employment because he was driving the company vehicle on his commute home after his shift, and he was not performing any activity related to his employment. As to the negligent hiring and retention claims, the company argued that while employers have a duty to use reasonable care to control employees acting outside the scope of employment in certain situations, it had no actual or constructive knowledge that any information that might show a propensity of the worker to commit these tortious acts would lead to a lawsuit. The defendant also further argued that it had no duty to the plaintiffs because they weren’t patrons of the company.

The appellate court, in reviewing the lower court’s grant of this summary judgment request, found there remained genuine issues of material fact as to whether the driver was acting in the course and scope of employment. Specifically, the company’s arguments seemed to conflict with the policies of its own handbook. There was also evidence that the company did owe a duty of care to the plaintiffs. The case was remanded for trial.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Hudgins v. Bemish, Dec. 9, 2016, Indiana Court of Appeals

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