Hudgins v. Bemish

• Decision Date: 09 December 2016
• Docket Number: No. 49A02–1505–CT–384.,49A02–1505–CT–384.
• Citation: 64 N.E.3d 923
• Parties: Thomas HUDGINS and Sheila Hudgins, Appellants–Plaintiffs, v. Brian BEMISH, Ideal Heating Air Conditioning and Refrigeration, Inc., Appellees–Defendants.
• Court: Indiana Appellate Court

64 N.E.3d 923

Thomas HUDGINS and Sheila Hudgins, Appellants–Plaintiffs,

v.Brian BEMISH, Ideal Heating Air Conditioning and Refrigeration, Inc., Appellees–Defendants.

No. 49A02–1505–CT–384.

Court of Appeals of Indiana.

Dec. 9, 2016.

D. Michael Allen, Jared S. Sunday, Mallor Grodner LLP, Bloomington, IN, Attorneys for Appellant.

Jon K. Stowell, The Cincinnati Insurance Company, Indianapolis, IN, Attorney for Appellee, Ideal Heating Air Conditioning and Refrigeration, Inc.

PYLE, Judge.

Statement of the Case

[1] Appellants–Plaintiffs, Thomas Hudgins ("Hudgins") and Sheila Hudgins ("Sheila") (collectively, "the Hudginses"), appeal the trial court's grant of summary judgment to Appellee–Defendant, Ideal Heating Air Conditioning and Refrigeration, Inc. ("Ideal"), who was the employer of Brian Bemish ("Bemish").¹ This case originates from the Hudginses' complaint, alleging negligence, loss of consortium, and property damage based on a collision that occurred when Bemish drove his Ideal work vehicle into a line of vehicles stopped at a traffic light. The Hudginses alleged that Ideal was vicariously liable under respondeat superior and liable based on negligent hiring and retention under Restatement (Second) of Torts § 317.

[2] The Hudginses argue that the trial court erred by granting summary judgment in favor of Ideal because there remain genuine issues of material fact regarding their claims against Ideal. We conclude that, based on the evidence designated to the trial court, there are conflicting facts or conflicting inferences that can be drawn as to whether Bemish was acting in the scope of his employment with Ideal at the time of the accident. Additionally, we conclude that Ideal has not met its initial burden on its motion for summary judgment on the Hudginses' negligent hiring and retention claim because it has not demonstrated the absence of a genuine issue of material fact regarding that claim and, instead, has merely alleged that the Hudginses have failed to present evidence showing that Ideal was liable under this claim. Accordingly, we reverse the trial court's judgment and remand for further proceedings.

[3] We reverse and remand.

Issue

Whether the trial court erred by granting Ideal's motion for summary judgment.

Facts

[4] The facts most favorable to the Hudginses, the non-moving party in this summary judgment, are set forth herein.

[5] In 2011, Bemish was an employee of Ideal and worked as an installer. As part of Bemish's employment, Ideal supplied Bemish with a company truck ("the Ideal Truck"). Ideal's 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." (App. 117). 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." (App. 117). Bemish drove his Ideal Truck home every day and stored it at his premises. Ideal paid for maintenance and gas for company-issued vehicles.

[6] Ideal required Bemish to sign a "Vehicle Usage Policy," which included a list of "requirements[.]" (App. 96). In relevant part, the Vehicle Usage Policy provided that "[t]he employee [wa]s not to use the company vehicle for any personal use" and that "[t]he employee [wa]s to use the company vehicle ... solely for company business of Ideal Heating A/C & Refrigeration Inc." (App. 96). Bemish used the Ideal Truck to haul materials and tools to job sites.

[7] On September 21, 2011, Bemish was assigned to work a project for Ideal at a job site in Valparaiso, Indiana. That morning, he drove the Ideal Truck and picked up his foreman, Adam Ramser ("Ramser"), at his house in Indianapolis. Bemish and Ramser had previously loaded the Ideal Truck with equipment at the Ideal shop. Bemish drove to the job site in Valparaiso, where he and Ramser performed work for Ideal over the next few days.

[8] On September 23, 2011, Bemish and Ramser worked for a few hours at the job site in Valparaiso. Bemish then drove the pair back to Indianapolis in the Ideal Truck. Upon arriving in Indianapolis around 3:00 p.m., Bemish dropped Ramser off at his house near 34th Street and Georgetown Road and stayed for a few minutes. Thereafter, Bemish, while driving the Ideal Truck near 16th Street and Georgetown Road, collided with a line of vehicles stopped at a traffic light ("the Collision"). The impact from the Ideal Truck caused a chain reaction collision that included Hudgins, who was riding his motorcycle. Hudgins was injured in the Collision. At the time of the accident, Bemish had several ladders on the Ideal Truck, and one of these ladders, which had Ideal's name on it, fell onto the road at the site of the Collision.

[9] Bemish fled the scene of the Collision in the Ideal Truck, drove another few blocks, and was involved in a second collision near 16th Street and Tynhurst Drive when he struck another vehicle stopped at a traffic light ("the second collision"). After Speedway Police officers arrived on the scene of the second collision, they removed Bemish from the Ideal Truck and noticed that he appeared dazed and had difficulty keeping his eyes open. Bemish admitted to the officers that, earlier that day, he had smoked the synthetic drug, spice, on the side of the road near 34th Street and Georgetown Road. The officers arrested Bemish. Thereafter, Ideal terminated his employment.

[10] On September 20, 2013, the Hudginses filed a complaint against Bemish and Ideal and raised claims of negligence, loss of consortium, and property damage. The Hudginses alleged that Bemish was negligent in causing the Collision that resulted in Hudgins' injuries. In their negligence claim against Ideal, the Hudginses alleged that Ideal was liable for Bemish's acts based on: (1) the theory of respondeat superior, which can impose liability on an employer when the employee has inflicted harm while acting within the scope of employment; and (2) negligent hiring and training under the Restatement (Second) of Torts § 317 ("Restatement § 317"), which can impose liability on an employer for acts of an employee acting outside the scope of employment when certain circumstances are met.²

[11] In July 2014, Ideal moved for summary judgment. Ideal's designated evidence consisted of the Hudginses' complaint and an affidavit from Ideal's President, David Gooderum ("Gooderum"). In his affidavit, Gooderum acknowledged that Bemish was an employee of Ideal at the time of the Collision and that Ideal had given Bemish permission to drive the Ideal Truck to his house. Gooderum, however, averred that, at the time of the Collision, Bemish "was driving the company vehicle on his commute home after ending his work shift for Ideal" and that he "was not performing any task or activity relating to his employment for Ideal Heating while driving the company vehicle home." (App. 34–35). Relying on the averments in Gooderum's affidavit, Ideal argued that it was entitled to summary judgment under the respondeat superior theory of liability because the facts were "undisputed" that Bemish was not acting within the scope of his employment. (App. 22).

[12] Ideal also asserted that summary judgment should be granted with respect to the Hudginses' negligent hiring/retention claim. Ideal acknowledged that Restatement § 317 imposes a duty on an employer to exercise reasonable care to control an employee acting outside the scope of employment under certain circumstances, but it asserted that it "had no actual or constructive knowledge of any information which would show a propensity of Bemish to commit the tortious acts which led to this suit." (App. 22). Ideal did not designate any specific evidence to support its assertion.

[13] Ideal also argued, in regard to this Restatement § 317 claim, that the trial court should consider the relationship between the parties, the reasonable foreseeability of harm to Hudgins as the victim, and public policy concerns to determine whether a duty of care even arose. It contended that, given these considerations, it "had no duty to the plaintiffs because they were not patrons of Ideal Heating and because Ideal Heating could not have foreseen the harm." (App. 24).

[14] In their summary judgment response, the Hudginses argued that Ideal's motion for summary judgment was inappropriate because: (1) Bemish had not yet responded to their discovery requests; (2) there were issues of material fact regarding whether Bemish was acting within the scope of his employment at the time of the Collision; (3) Indiana had adopted the Restatement § 317, which, under certain conditions, imposed a duty on an employer when an employee was using an employer's chattel or vehicle outside the scope of his employment; and (4) Ideal had a duty to Hudgins because the danger posed to drivers by a driver under the influence of drugs, such as Bemish, was foreseeable to Ideal.

[15] The Hudginses first argued that the trial court should deny Ideal's summary judgment motion because "[t]he Indiana Supreme Court ha[d] recognized that it is generally improper for a court to grant summary judgment while reasonable discovery requests that bear on issues material to the motion are still pending." (App. 39). The Hudginses designated evidence to show that they had served interrogatories on Bemish on March 6, 2014, but they had not yet received his response as of the date of their summary judgment response filing, which was September 5, 2014. They also pointed to an interrogatory question that specifically asked Bemish whether he was doing work-related activity at the time of the collision.

[16] Additionally, in regard to Ideal's respondeat superior argument, the Hudginses argued that Ideal's "self-serving affidavit" claiming that Bemish was not acting within the scope of his employment with Ideal conflicted with Ideal's Employee Handbook and its Vehicle Usage Policy, both of which...