Sedam v. 2JR Pizza Enters., LLC

• Decision Date: 27 September 2016
• Docket Number: No. 39A05–1602–CT–296.,39A05–1602–CT–296.
• Citation: 61 N.E.3d 1191
• Parties: Dale SEDAM, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, deceased, Appellants–Plaintiffs, v. 2JR PIZZA ENTERPRISES, LLC doing business as Pizza Hut # 013413, Amanda Parker, individually and as an employee of 2JR Pizza Enterprises, LLC, and Ralph Bliton, Appellees–Defendants.
• Court: Indiana Appellate Court

61 N.E.3d 1191

Dale SEDAM, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, deceased, Appellants–Plaintiffs,

v.2JR PIZZA ENTERPRISES, LLC doing business as Pizza Hut # 013413, Amanda Parker, individually and as an employee of 2JR Pizza Enterprises, LLC, and Ralph Bliton, Appellees–Defendants.

No. 39A05–1602–CT–296.

Court of Appeals of Indiana.

Sept. 27, 2016.

Scott A. Faultless, Craig Kelley & Faultless, LLC, Indianapolis, IN, Merritt K. Alcorn, Alcorn Sage Schwartz & Magrath, LLP, Madison, IN, Attorneys for Appellants.

Tricia Kirkby Hofmann, Rebecca L. Didat, Waters Tyler Hofmann & Scott, LLC, New Albany, IN, Attorneys for Appellees.

MATHIAS

, Judge.

[1] David C. Hamblin (“Hamblin”) was killed in a car accident involving Ralph Bliton (“Bliton”) and Amanda Parker (“Parker”), who was employed as a Pizza Hut delivery driver. Dale Sedam, Kim Sedam, and Bryan Norris, the co-personal representatives of Hamblin's Estate (collectively “the Estate”), filed a complaint against Parker and her employer, Pizza Hut, alleging that Parker, acting in the course and scope of her employment with Pizza Hut, negligently operated her vehicle and caused the accident that resulted in Hamblin's death.

[2] The Estate also alleged Pizza Hut negligently hired, trained, supervised, and retained Parker. Pizza Hut filed a motion for summary judgment on that claim, and the Jefferson Circuit Court granted partial summary judgment in Pizza Hut's favor. The Estate appeals and argues that the trial court erred when it concluded that the Estate could only proceed with its negligence claim against Pizza Hut under a theory of respondeat superior in light of Pizza Hut's admission that Parker was acting with the scope of her employment.

[3] Concluding that an employer's admission that its employee committed the alleged negligent act within the course and scope of her employment does not preclude an action for negligent hiring, training, supervision, and retention, we reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[4] At approximately 8:57 p.m. on August 24, 2012, Parker, who was employed by Pizza Hut as a delivery driver, was operating her vehicle in the northbound lane of State Road 62 in Jefferson County, Indiana. Hamblin was operating a scooter in the same lane of travel. Parker collided with the rear of Hamblin's scooter, and Hamblin fell onto the roadway as a result of the impact. Tragically, a vehicle operated by Bliton ran over Hamblin. On September 1, 2012, Hamblin died from severe injuries he sustained in the accident.

[5] Thereafter, the Estate filed a wrongful death lawsuit against Parker, Pizza Hut, and Bliton (collectively “the Appellees”). The Estate later amended its complaint and alleged that Pizza Hut negligently hired, trained, supervised, and retained Parker (“the negligent hiring claim”).

[6] On March 9, 2015, Pizza Hut and Parker filed a motion for partial summary judgment. They argued that the trial court should enter judgment in their favor on the negligent hiring claim because Pizza Hut had admitted that Parker was acting within the scope and course of her employment when the accident occurred, and therefore, Pizza Hut could only be held liable for Parker's alleged negligence under a theory of respondeat superior.

[7] After a hearing, the trial court entered partial summary judgment in favor of Pizza Hut on the Estate's negligent hiring claim. On January 4, 2016, the trial court concluded that its order granting partial summary judgment was final and appealable pursuant to Trial Rule 54(B)

. The Estate now appeals.

Standard of Review

[8] Pursuant to Indiana Trial Rule 56(C)

, “[s]ummary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Missler v. State Farm Ins. Co., 41 N.E.3d 297, 301 (Ind.Ct.App.2015). A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Devereux v. Love, 30 N.E.3d 754, 762 (Ind.Ct.App.2015), trans. denied. “If the material facts are not in dispute, our review is limited to determining whether the trial court correctly applied the law to the undisputed facts.” Id. We review pure questions of law de novo. Id.

Discussion and Decision

[9] The issue at the heart of this appeal is whether a plaintiff may establish an employer's liability proceeding on both the theory of negligent hiring and the theory of respondeat superior where the employer has admitted that the employee was acting within the course and scope of his or her employment. To support their respective arguments, the Estate cites to our supreme court's opinion in Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907)

, and Pizza Hut directs our attention to this court's opinion in Tindall v. Enderle, 162 Ind.App. 524, 320 N.E.2d 764 (1974).

[10] In Broadstreet, a business owner ordered his nine-year-old son to deliver a message to one of his customers. The son was permitted to make his delivery by riding a horse that the business owner knew was dangerous. He also knew that his son was a reckless rider. After trial, the business owner was found to be negligent because his son negligently rode the horse causing the accident and resulting injury, and because he knew that his son had a reputation for reckless riding and was not capable of controlling the horse.

[11] On appeal, the business owner challenged the trial court's decision to admit evidence of his son's reputation for reckless riding. However, the court held that the evidence was admissible:

to charge appellant with knowledge or notice of his son's careless and reckless manner of riding and controlling horses, and therefore of his incompetency for that reason to be intrusted with the control and management of the horse at the time the appellant sent him upon the errand or mission in question.

The specific acts of appellant's son's reckless and careless riding at the time and place testified to by the witnesses were also admissible for the same purpose of charging appellant with knowledge, or notice, of his son's incompetency to control or manage the horse at the time he employed him to serve in carrying the message.

The trial court, at the time the evidence in question was received, by an instruction to the jury limited the consideration thereof by that body to the legitimate purpose for which it was introduced. There was no error in admitting the evidence in question.

Broadstreet, 168 Ind. at 204, 80 N.E. at 149

(internal citations omitted).

[12] The court also held that it was permissible for the jury to find the business owner was vicariously liable for the negligent acts of his son and to find him liable for negligently entrusting his son with the horse knowing full well his son's reputation for reckless riding. Specifically, our supreme court stated:

The evident theory of the first paragraph, as outlined by the facts, is that the relation of master and servant existed between appellant and his minor son at the time of the accident in question and that, therefore, under a well-settled rule, appellant is responsible for the negligence of his said servant to which the injury of appellee is imputed. This negligence, as shown, was committed by appellant's son and servant within the scope of the employment or service which he was performing at the time for his father.

The third paragraph proceeds upon the theory that the injuries received by appellee are due to the negligence of appellant, under the circumstances, in placing his minor son in the control and management of his horse upon the occasion and for the purpose in question and allowing him to ride the horse along the public highway in the performance of the business or mission upon which he sent him; that by reason of the boy's carelessness, his youth, and inexperience in the management of horses, and his want of strength and inability to govern the horse at the time in question, he ran into appellee's buggy, and threw her to the ground, thereby injuring her, as alleged in the pleading.

Id. at 195–96, 80 N.E. at 146

.

[13] In Tindall v. Enderle, 162 Ind.App. 524, 320 N.E.2d 764 (Ind.Ct.App.1974)

, the appellants relied on Broadstreet to argue that the trial court erroneously excluded evidence that the tavern owner had knowledge of his employee's prior assaults on tavern patrons. Specifically, Tindall and Thomas Ryan, as administrator of the estate of Robert Slusher, “sought to introduce prior assault evidence in support of their cause of action alleging that Falls Tap, Inc. was negligent in employing and retaining Enderle in its employ after obtaining corporate knowledge of his violent propensities.” Id. at 526, 320 N.E.2d at 765.

[14] The appellants argued that they should have been allowed to present the excluded evidence because they claimed that the appellees were negligent under the theories of negligent hiring and retention and respondeat superior. Our court summarily rejected the controlling Broadstreet decision by citing to a federal district court case that concluded that Broadstreet “was of limited scope, applicable to only ‘special’ situations.”¹ Id. at 529

, 320 N.E.2d 767 (citing Lange v. B & P Motor Express, Inc., 257 F.Supp. 319 (N.D.Ind.1966) ).

[15] The Tindall court also concluded that the negligent hiring cause of action “generally arises only when an agent, servant or employee steps beyond the recognized scope of his employment to commit a tortious injury upon a third party.” Id. at 529–30, 320 N.E.2d at 767–68

(citing 34 A.L.R.2d 372 ; 53 Am.Jur.2d Master–Servant §§ 422 and 458 (1970)). The court concluded that a cause of action for negligent hiring “is of no value where an employer has stipulated that his employee was within the scope of his employment.” Id....