64 N.E.3d 923
Ind. Ct. App.2016Background
- On Sept. 23, 2011, Ideal employee Brian Bemish drove an Ideal company truck after dropping off his foreman; while driving he struck a line of stopped vehicles, injuring Thomas Hudgins; Bemish fled, later arrested and admitted recent use of a synthetic drug.
- Ideal supplied Bemish the truck, paid maintenance and fuel, required a signed vehicle-usage policy forbidding personal use, and allowed employees to keep vehicles at home.
- Hudgins sued Bemish and Ideal (respondeat superior and negligent hiring/retention under Restatement § 317); Ideal moved for summary judgment.
- Ideal’s designated evidence included an affidavit from its president (asserting Bemish was commuting and not on company business) and Bemish’s deposition from another suit; the Hudginses designated the employee handbook, police reports, and depositions (including of foreman Ramser).
- The trial court granted summary judgment for Ideal; the Court of Appeals reversed, holding genuine factual disputes existed about whether Bemish was acting within the scope of employment and that Ideal failed to meet its burden to negate the § 317 claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bemish was acting within scope of employment (respondeat superior) | Bemish was using a company vehicle, hauling ladders after an out-of-county job during company hours; handbook/policies and his testimony create disputed facts that he was performing company-related duties | Bemish was ‘‘commuting’’ home after his shift and not performing work; commuting is normally outside scope | Reversed — genuine factual dispute exists; Ideal did not affirmatively negate scope element |
| Whether Ideal is liable under Restatement (Second) § 317 (negligent hiring/retention) | Employer knew or should have known it could control employee using employer’s chattel; risk of intoxicated employee driving company vehicle was foreseeable; disputed facts preclude summary judgment | Hudgins presented no evidence that Ideal had actual/constructive knowledge of Bemish’s propensity; no duty arose | Reversed — Ideal failed to designate evidence negating an element of § 317; summary judgment improper |
Key Cases Cited
- Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788 (Ind. 2015) (Indiana summary judgment standard and appellate review)
- Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184 (Ind. 2016) (movant must affirmatively negate opponent’s claim to obtain summary judgment)
- Hughley v. State, 15 N.E.3d 1000 (Ind. 2014) (summary judgment proper only where no genuine issue of material fact)
- Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118 (Ind. 1994) (movant must show absence of genuine fact on determinative issue)
- Biel, Inc. v. Kirsch, 161 N.E.2d 617 (Ind. 1959) (going-and-coming rule: employee en route to/from work normally not acting for employer)
- Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665 (Ind. Ct. App. 1995) (exception to going-and-coming rule when employee also performs errand for employer)
- Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450 (Ind. 2000) (scope of employment: act must be incidental to authorized conduct or further employer's business)
- Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244 (Ind. 1989) (employer may be liable for employee acts committed within scope of employment)