Stropes by Taylor v. Heritage House Childrens Center of Shelbyville, Inc.

• Citation: 547 N.E.2d 244
• Decision Date: 05 December 1989
• Docket Number: No. 41S04-8912-CV-893,41S04-8912-CV-893
• Parties: David A. STROPES, by next friend, Pamela TAYLOR, Appellant, v. The HERITAGE HOUSE CHILDRENS CENTER OF SHELBYVILLE, INC., and Robert Griffin, Appellees.
• Court: Supreme Court of Indiana

Page 244

547 N.E.2d 244

David A. STROPES, by next friend, Pamela TAYLOR, Appellant, v. The HERITAGE HOUSE CHILDRENS CENTER OF SHELBYVILLE, INC. and Robert Griffin, Appellees.

No. 41S04-8912-CV-893.

Supreme Court of Indiana.

Dec. 5, 1989.

Rehearing Denied March 1, 1990.

Douglas N. Ryan, George Clyde Gray, Gray Robinson Eckert & Ryan, Indianapolis, for appellant.

James L. Petersen, Alan L. Weldy, Ice Miller Donadio & Ryan, Indianapolis, for appellees.

DeBRULER, Justice.

Fourteen-year-old David Stropes was the victim of cerebral palsy and severe mental retardation. He had the mental capacity of a five-month-old infant and was without the verbal and motor skills necessary to perform or assist in even the simplest tasks associated with his own sustenance or sanitation. David had been placed at the Heritage House Childrens Center of Shelbyville, Inc., (Heritage) as a ward of the Marion County Welfare Department to assure his maintenance, security, and well-being.

Robert Griffin, a nurse's aide employed by Heritage, was expected to feed, bathe, and change the bedding and clothing of residents, including David Stropes, as well as to monitor their comfort and safety. To fulfill these duties, Griffin was required to minister to residents in their beds, remove their clothing, and touch and handle their bodies. During his 11:00 p.m. to 7:00 a.m. shift on February 28, 1986, Griffin entered David's room to change the boy's bedding and clothes for the day. After Griffin stripped off the sheets, he got into bed with David and performed oral and anal sex upon him. Griffin stopped the assault when David made a sound indicating that he was in pain, then finished changing the boy's clothes. This incident was seen and reported by another Heritage employee, and Griffin ultimately was charged with and pleaded guilty to criminal deviate conduct, a Class B felony, and child molesting, a Class C felony.

David Stropes, by his next friend, Pamela Taylor, filed a complaint against Heritage and Griffin which asked for compensatory and punitive damages and which was based in part on a claim that Heritage was responsible for acts committed by Griffin while on duty. Heritage moved for summary judgment on that claim, arguing that this sexual assault was outside the scope of Griffin's employment and that, therefore, Heritage could not be held liable under the doctrine of respondeat superior. The trial court granted that motion with no accompanying findings of fact or conclusions of law on May 29, 1987. On July 20, 1987, the trial court modified its initial order by adding the following conclusion of law:

That the act of committing a sexual assault was[,] as a matter of law, outside the scope of Robert Griffin's employment and, as a result, plaintiff cannot recover against The Heritage House, Inc. based upon a theory of respondeat superior.

David filed his motion to correct errors on September 17, 1987.

On the same day, David filed a motion for leave to file an amended complaint pursuant to Trial Rule 15(A). The new claim sought recovery under a theory of liability which would hold Heritage responsible for the wrongful acts of its employee regardless of whether the acts were within the scope of employment. The court allowed the amendment, to which Heritage filed a general denial. David's motion to correct errors was denied, and an appeal ensued. David petitioned for transfer to this Court after the Court of Appeals affirmed the decision of the trial court in an unpublished opinion. 531 N.E.2d 250. Transfer is granted.

Heritage argued as a preliminary procedural matter that the Court of Appeals was without jurisdiction because David had not timely filed his motion to correct errors. Under the rules of procedure in effect in 1987, the filing of a motion to correct errors within sixty days of the entry of a final judgment or appealable final order was an absolute precondition to any appeal. ¹ T.R. 59(C). See also City of Mishawaka v. Stewart (1974), 261 Ind. 670, 310 N.E.2d 65 (filing of motion to correct errors within the prescribed time limit is a condition precedent to perfecting an appeal). Heritage argued that the trial court's initial order of May 29, 1987, set the sixty-day period running, that David's filing on September 17, 1987, came too late, and that his appeal was therefore barred. In its memorandum decision, the Court of Appeals rejected this argument, finding that the initial order had not created an order from which an appeal could properly be taken under Trial Rule 56(D). That rule provides: "If on a motion under this [summary judgment] rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall thereupon make an order specifying the facts that appear without substantial controversy...." The Court of Appeals correctly held that because summary judgment was rendered on only one of David's claims, the trial court was required to specify the material facts not in controversy to bring its order into compliance with T.R. 56(D) and that the time for filing began to run on July 20, 1987, the date the modified order was entered. Therefore, David's motion to correct errors was timely filed and the appeal was properly before the Court.

A second procedural issue poses an apparent obstacle to consideration of the substance of this appeal. No formal judgment was entered with respect to the claim set forth in David's amended complaint, and this Court could refuse to reach the merits of this appeal on that basis.

Heritage denied the amended complaint's allegations, but filed no motion for summary judgment on the new claim. In fact, no action was taken on this claim at all until David's motion to correct errors was considered. David and Heritage then submitted researched statements in support of their positions, both of which focused almost exclusively on the new claim, and the trial court heard oral argument. Although the trial court's denial of the motion to correct errors was accompanied by no formal judgment on the amended complaint, it nevertheless effected a determination on the viability of that claim after an adversarial presentation of the issue.

The Court of Appeals gave express consideration both to the doctrine of respondeat superior as traditionally applied and to the imposition of liability as asserted in David's amended complaint and as briefed and argued below. The Court found neither theory viable and affirmed the trial court's decision. The trial court had obviously considered and determined the second claim, and the lack of a formal judgment by that court served as no impediment to the filing of extensive briefs and the issuance of a decision on the merits of that claim in the Court of Appeals. Nor does it here. See First Equity Security Life Ins. Co. v. Keith (1975), 164 Ind.App. 412, 329 N.E.2d 45 (where the substantive issue had been fully briefed and argued, the issue was clearly severable from those still pending in the trial court, and no prejudice would result to the parties by consideration of the merits, lack of a formal judgment did not bar review by appellate court). The law does not require the doing of a useless thing, and to remand this case to perform a charade of filing motions and entering orders on issues which have long since been determined would be a truly useless exercise in form over substance. Therefore, we now turn to the substantive issue of this appeal.

The question presented for our review is whether, as a matter of law, Heritage may be subject to liability for its employee's wrongful acts under the doctrine of respondeat superior as traditionally applied or under a theory of liability which has been described as the "common carrier" or "non-delegable duty" exception to respondeat superior. The trial court and the Court of Appeals found that neither theory had sufficient merit to escape summary judgment. ²

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard applicable in the trial court. Brandon v. State (1976), 264 Ind. 177, 179, 340 N.E.2d 756, 758. Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552, 553. The contents of all pleadings, affidavits and testimony are to be liberally construed in the light most favorable to the non-moving party. Id. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences which would alter the outcome arise, Bridgewater v. Economy Engineering Co. (1985), Ind., 486 N.E.2d 484, 487, or if the trial court incorrectly applied the law. Board of Aviation Comm'rs v. Hestor (1985), Ind.App., 473 N.E.2d 151, 153. For the reasons stated below, we find that summary judgment was inappropriate for both claims and reverse.

Respondeat superior imposes liability, where none would otherwise exist, on an employer for the wrongful acts of his employee which are committed within the scope of employment. The Court of Appeals has stated, "In order to be within the scope of employment the employee must be in the 'service of the employer.' " Shelby v. Truck & Bus Group Div. of GMC (1989), Ind.App., 533 N.E.2d 1296, 1298. Acts for which the employer is not responsible are those done "on the employee's own initiative," City of Crawfordsville v. Michael (1985), Ind.App., 479 N.E.2d 102, 104, "with no intention to perform it as part of or incident to the service for which he is employed," Gomez v. Adams (1984), Ind.App., 462 N.E.2d 212, 223. However, an employee's wrongful act may still fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business, even if the act was predominantly motivated by an intention to benefit the employee himself. Id. Two cases decided under Indiana law have held...