      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                              Jan 24 2017, 8:33 am

      regarded as precedent or cited before any                               CLERK
                                                                          Indiana Supreme Court
      court except for the purpose of establishing                           Court of Appeals
                                                                               and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Neal F. Eggeson, Jr.                                     Jeffrey C. Gerish
      Eggeson Appellate Services                               Plunkett Clooney
      Indianapolis, Indiana                                    Bloomfield Hills, Michigan
                                                               Pamela A. Paige
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jessica Mataranglo,                                      January 24, 2017
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               71A03-1604-CT-849
              v.                                               Appeal from the St. Joseph Circuit
                                                               Court
      Meijer Stores Limited                                    The Honorable Michael G.
      Partnership and Shannon                                  Gotsch, Judge
      Fuentes-LaCross,                                         Trial Court Cause No.
      Appellees-Defendants                                     71C01-1410-CT-394




      Mathias, Judge.


[1]   Jessica Mataranglo (“Mataranglo”) appeals the St. Joseph Circuit Court’s entry

      of partial summary judgment in favor of Meijer Stores Limited Partnership

      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017      Page 1 of 14
      (“Meijer”) on Mataranglo’s claims that Meijer is liable for pharmacist Shannon

      Fuentes-LaCross’s (“LaCross”) acts of negligence and invasion of privacy

      under the theory of respondeat superior. LaCross and Meijer (collectively “the

      Defendants”) cross appeal and argue that they are entitled to judgment as a

      matter of law on Mataranglo’s claims of negligence and invasion of privacy.


[2]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History

[3]   In 2014, LaCross was a pharmacist at a Meijer Pharmacy in Mishawaka,

      Indiana. Mataranglo was a customer of the pharmacy, and on March 22, 2014,

      she took a prescription to the Meijer Pharmacy to have it filled. Mataranglo

      gave her prescription to LaCross, with whom she had been acquainted for a few

      years because the two women had a mutual ex-boyfriend, Scott Geisler

      (“Geisler”).


[4]   On March 23 or 24, 2014, LaCross allegedly divulged Mataranglo’s

      prescription information to Geisler. On March 24, Geisler spoke with

      Mataranglo. Geisler stated that LaCross gave him information about

      Mataranglo’s prescription and told Geisler that Mataranglo was “with a black

      guy.” Appellant’s App. p. 168. Geisler told LaCross that the man was

      Mataranglo’s boyfriend. When Mataranglo stated she was going to report

      LaCross for sharing her private information, Geisler asked her to not do so.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 2 of 14
[5]   The following month when Mataranglo refilled her prescription at the Meijer

      Pharmacy, LaCross was working at the pharmacy counter. Mataranglo became

      angry when she saw LaCross and reported to the on-duty pharmacist that

      LaCross had shared her prescription information with Geisler. Mataranglo

      discussed the incident with another Meijer employee that same day. LaCross

      told Geisler that she had been reported for sharing Mataranglo’s prescription

      information.

[6]   LaCross’s supervisor discussed Mataranglo’s report with her, and LaCross

      denied the allegation. No record of the incident is in LaCross’s personal file.


[7]   On October 31, 2014, Mataranglo filed a complaint against LaCross and Meijer

      in St. Joseph Circuit Court. Mataranaglo alleged that LaCross was liable for

      negligence and invasion of privacy, and Meijer was also liable for LaCross’s

      alleged acts under a theory of respondeat superior. Mataranglo claimed that

      Meijer was directly liable for negligent training, supervision, and retention.


[8]   Meijer agreed that LaCross’s alleged acts were done in the course and scope of

      her employment with Meijer, but the Defendants argued that they were entitled

      to summary judgment on Martaranglo’s claims. In April 2016, the trial court

      denied LaCross’s motion for summary judgment but entered summary

      judgment in favor of Meijer.


[9]   Mataranglo appeals the trial court’s entry of summary judgment in favor of

      Meijer on all claims. The Defendants cross-appeal and argue that the trial court



      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 3 of 14
       erred when it denied LaCross’s motion for summary judgment on Mataranglo’s

       negligence and invasion of privacy claims.


                                          Standard of Review

[10]   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.


                                           Procedural Claims

[11]   Mataranglo argues that our court lacks jurisdiction over the Defendants’ cross-

       appeal because she was not given the opportunity to respond to the Defendants’

       motion to certify the order denying summary judgment to LaCross. However,

       Mataranglo has not cited any persuasive authority to support her position, and

       Appellate Rule 14(B), which governs interlocutory appeals, has no provision

       requiring the trial court to allow for a response before jurisdiction vests with this

       court.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 4 of 14
[12]   Mataranglo also argues that Defendants should not be permitted to challenge

       the admissibility of Scott Geisler’s affidavit in their cross-appeal because the

       trial court ruled on the motion to strike in a separate order. The Defendants did

       not seek certification of the order denying the motion to strike pursuant to

       Appellate Rule 14(B). Generally, only issues that were properly raised in the

       trial court in ruling on the certified interlocutory order are available on

       interlocutory appeal. Harbour v. Arelco, 678 N.E.2d 381, 386 (Ind. 1997).


[13]   However, the trial court’s consideration of Geisler’s affidavit in ruling on the

       motion for summary judgment is inexorably tied to the issue presented in this

       appeal. Indiana Trial Rule 56(E) provides in relevant part that affidavits

       submitted in support of or in opposition to a summary judgment motion “shall

       be made on personal knowledge, shall set forth such facts as would be

       admissible in evidence, and shall show affirmatively that the affiant is

       competent to testify to the matters stated therein.” “The requirements of T.R.

       56(E) are mandatory—therefore, a court considering a motion for summary

       judgment should disregard inadmissible information contained in supporting or

       opposing affidavits.” Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App.

       2005) (citing Interstate Auction, Inc. v. Cent. Nat’l Ins. Group, Inc., 448 N.E.2d

       1094, 1101 (Ind. Ct. App. 1983)). In accordance with Rule 56(E) and the

       interests of judicial economy, we will consider the merits of the Defendant’s

       argument that Geisler’s affidavit should not have been considered in ruling on

       the Defendant’s motion for summary judgment.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 5 of 14
         The Trial Court’s Denial of Summary Judgment to LaCross

[14]   In their cross-appeal, the Defendants argue that the trial court erred when it

       determined that genuine issues of material fact precluded the entry of summary

       judgment in favor of LaCross. Specifically, the Defendants contend that their

       “designated evidence proved the absence of a genuine issue of material fact as

       to whether LaCross conveyed” Mataranglo’s prescription information to

       Geisler. Cross-Appellants’/Appellees’ Br. at 17.


[15]   First, we observe that negligence is comprised of three elements: (1) a duty on

       the part of the defendant to the plaintiff; (2) a breach of that duty; and (3) an

       injury to the plaintiff resulting from the breach. Kolozsvari v. Doe, 943 N.E.2d

       823, 826 (Ind. Ct. App. 2011). Our courts and General Assembly have

       recognized a relationship between a pharmacist and her customer that gives rise

       to a duty on the pharmacist’s part. See Hooks SuperX, Inc. v. McLaughlin, 642

       N.E.2d 514, 517 (Ind. 1994); Ind. Code § 25-26-13-15(a) (“A pharmacist shall

       hold in strictest confidence all prescriptions, drug orders, records, and patient

       information.”). In this appeal, the parties argue whether genuine issues of

       material fact exist concerning LaCross’s alleged breach of her duty.

[16]   In support of LaCross’s motion for summary judgment, the Defendants

       designated: 1) LaCross’s affidavit wherein she swore she did not disclose

       Mataranglo’s prescription information to Geisler; 2) Geisler’s deposition

       testimony wherein he testified that he knew that Mataranglo had prescription

       medication, but he could not recall who gave him the information and did not

       believe he received it from LaCross; and 3) phone records establishing that
       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 6 of 14
       LaCross did not send a text message to Geisler during the dates during which

       Mataranglo’s prescription information was allegedly conveyed to Geisler.


[17]   Mataranglo responded by designating Geisler’s affidavit executed prior to his

       deposition testimony, in which Geisler stated that LaCross shared “confidential

       information regarding the prescriptions of Meijer Pharmacy customers[.]”

       Confidential Appellant’s App. p. 167. Geisler also averred that on March 23 or

       24, 2014, LaCross told him that Mataranglo “dropped off a prescription for

       [redacted] at the Meijer Pharmacy.” Id. at 168. Geisler stated that on March 24,

       he “phoned” Mataranglo, asked her about her prescription, but also asked her

       not to report LaCross for disclosing Mataranglo’s prescription information. Id.


[18]   Mataranglo also designated her own affidavit stating that she and LaCross were

       acquainted with each other and that she had her prescription filled at the Meijer

       Pharmacy by LaCross on March 22, 2014. Mataranglo averred that on March

       24, 2014, she “received a phone call from Scott Geisler pertaining to” her

       prescription. Id. at 160. Approximately one month later, Mataranglo saw

       LaCross working at the Meijer Pharmacy counter and reported that LaCross

       had disclosed her prescription information to Geisler.

[19]   From the parties’ designated evidence, we conclude that a genuine issue of

       material fact exists. It is within the exclusive province of the fact-finder to

       determine whether LaCross disclosed Mataranglo’s prescription information to

       Geisler.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 7 of 14
[20]   The Defendants argue that our court should not consider Geisler’s affidavit

       because in his subsequent deposition testimony Geisler testified that he knew

       that Mataranglo had prescription medication, could not recall who gave him

       the information, but did not believe he received it from LaCross. The

       Defendants rely on Gadboury v. Ireland Road Grace Brethren, 446 N.E.2d 1310

       (Ind. 1983), in which our supreme court adopted the following statement of

       law:

               If a party who has been examined at length on deposition could
               raise an issue of fact simply by submitting an affidavit
               contradicting his own prior testimony, this would greatly
               diminish the utility of summary judgment as a procedure for
               screening out sham issues of fact.


       Id. at 1314 (citations omitted); see also Bunger v. Brooks, 12 N.E.3d 275, 279-80

       (Ind. Ct. App. 2014), trans. denied.


[21]   The Gadboury court also held that “contradictory testimony contained in an

       affidavit of the nonmovant may not be used by him to defeat a summary

       judgment motion where the only issue of fact raised by the affidavit is the

       credibility of the affiant.” 446 N.E.2d at 1314 (citation omitted). The stated

       purpose for this rule is to “prevent a party from generating its own genuine

       issue of material fact by providing self-serving contradictory statements without

       explanation.” Crawfordsville Square, LLC. v. Monroe Guar. Ins. Co., 906 N.E.2d

       934, 939 (Ind. Ct. App. 2009).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 8 of 14
[22]   The circumstances in this case do not fall squarely within the Gadboury rule.

       Importantly, Geisler is a non-party, and he executed his affidavit approximately

       nine months prior to his deposition testimony. Also, Geisler’s later deposition

       testimony conflicts with his earlier sworn affidavit in only one significant

       respect: in his affidavit Geisler swore that LaCross shared the prescription

       information with him; however, in his deposition, he testified that the

       information was disclosed to him, but he could not remember who divulged it,

       and he did not believe it was LaCross.


[23]   The inconsistencies between Geisler’s statements must be resolved by the fact-

       finder. Because Geisler is not a party in this litigation and his affidavit was “not

       crafted to contradict any then-existing testimony,” the trial court properly

       considered the affidavit in making its determination that genuine issues of

       material fact precluded the entry of summary judgment in favor of LaCross. See

       Smith v. Delta Tau Delta, 9 N.E.3d 154, 158-59 (Ind. 2014).


[24]   For all of these reasons, we conclude that the trial court properly denied

       LaCross’s motion for summary judgment.


            Summary Judgment in Favor of Meijer on Mataranglo’s
              Respondeat Superior and Direct Negligent Claims

[25]   Mataranglo argues that the trial court’s conclusion that genuine issues of

       material fact exist as to her claims against LaCross precludes the entry of

       summary judgment in favor of Meijer on those same claims. Mataranglo

       argues that Meijer is liable for LaCross’s alleged acts of negligence and invasion


       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 9 of 14
       of privacy that were done within the course and scope of her employment under

       a theory of respondeat superior. She also claims that genuine issues of material

       fact preclude the entry of summary judgment on her direct claims against

       Meijer for negligent training, supervision, and retention.


                                            A. Vicarious Liability

[26]   Vicarious liability will be imposed upon an employer under the doctrine of

       respondeat superior “where the employee has inflicted harm while acting

       ‘within the scope of employment.’’ Barnett v. Clark, 889 N.E.2d 281, 283 (Ind.

       2008). An employer is not held liable under the doctrine of respondeat superior

       because it did anything wrong, but “because of the [employer’s] relationship to

       the wrongdoer.” Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind. Ct. App. 2014)

       (quoting Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999)).


[27]   If a fact-finder determines that pharmacist LaCross, while acting within the

       scope of her employment, filled Mataranglo’s prescription and subsequently

       disclosed that information to Geisler, Meijer can also be held liable for

       LaCross’ wrongful act. See Knighten v. East Chicago Housing Authority, 45 N.E.3d

       788, 791 (Ind. 2015). Therefore, the trial court erred when it granted summary

       judgment in favor of Meijer on Mataranglo’s claim that Meijer is liable for

       LaCross’s alleged negligence under the doctrine of respondeate superior.


                                         B. Direct Liability Claims

[28]   In her complaint, Mataranglo alleged that Meijer negligently trained,

       supervised, and retained LaCross. Mataranglo argues that the trial court

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 10 of 14
       improperly granted summary judgment for Meijer on these claims because

       Meijer did not designate evidence to establish that it is entitled to judgment as a

       matter of law.


[29]   Meijer designated evidence that LaCross knew she had a duty not to disclose

       confidential information. Specifically, Meijer submitted copies of text messages

       that LaCross sent to Geisler after Mataranglo reported to Meijer that LaCross

       had disclosed her prescription information. Appellant’s App. pp. 108-09. In the

       messages, LaCross states that she is “bound by HIPPA” and would never

       divulge a customer’s prescription medication. Id.


[30]   Of course, a fact-finder must weigh this evidence against the evidence that

       Geisler knew Mataranglo’s prescription information, which he allegedly

       obtained from LaCross. Importantly, Meijer did not designate evidence

       concerning how its pharmacists are trained. Also, Meijer did not designate any

       evidence concerning the steps it took to investigate Mataranglo’s claim that

       LaCross disclosed her prescription information. In responding to Mataranglo’s

       arguments, the Defendants continually rely on their general denial of

       Mataranglo’s allegations.1

[31]   Although federal practice permits the moving party to merely show that the

       party carrying the burden of proof at trial lacks evidence on a necessary




       1
         To support its argument that we should affirm the grant of summary judgment it its favor, Meijer heavily
       relies on its unsuccessful argument that Geisler “recanted” his affidavit when he gave subsequent,
       inconsistent deposition testimony.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017          Page 11 of 14
       element, Indiana state courts impose a more onerous burden: to affirmatively

       “negate an opponent’s claim.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014) (citation omitted). Meijer's designated evidence and argument in support

       of summary judgment on Mataranglo’s negligent training, supervision, and

       retention claims do not affirmatively negate Mataranglo’s claim. Therefore,

       Meijer failed to make a prima facie showing that there are no genuine issues of

       fact and that it is entitled to judgment as a matter of law. See Dreaded, Inc. v. St.

       Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009).


                                  Public Disclosure of Private Facts

[32]   Finally, we address Mataranglo’s claim that the trial court improperly granted

       summary judgment to the Defendants on her claim for invasion of privacy, and

       specifically, public disclosure of private facts.2 This tort, described by the

       Second Restatement, occurs when a person gives “‘publicity’” to a matter that

       concerns the “‘private life’” of another, a matter that would be “‘highly

       offensive’” to a reasonable person and that is not of legitimate public concern.

       J.H. v. St. Vincent Hosp. & Health Care Center, Inc., 19 N.E.3d 811, 815 (Ind. Ct.

       App. 2014) (citing Doe v. Methodist Hosp., 690 N.E.2d 681, 684 (Ind. 1997)

       (quoting Restatement (Second) of Torts § 652D))).




       2
           Judge Crone recently observed that whether “Indiana recognizes this tort is technically an open question,
       but for all practical purposes the answer is currently no.” Robbins v. Trustees of Ind. Univ., 45 N.E.3d 1, 13
       (Ind. Ct. App. 2015) (Crone, J., concurring). Because it is not necessary for us to comment on the viability of
       the tort to resolve the issue presented on appeal, we decline to do so.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017            Page 12 of 14
[33]   As explained in Doe, under the Restatement view adopted by most courts, a

       communication to a single person or to a small group of persons is not

       actionable because the publicity element requires communication to the public

       at large or to so many persons that the matter is “‘substantially certain to

       become one of public knowledge.’” 690 N.E.2d at 692 (quoting Restatement

       (Second) of Torts § 652D cmt. a); see also Munsell v. Hambright, 776 N.E.2d

       1272, 1282 (Ind. Ct. App. 2002) (holding that the defendants would not have

       been entitled to summary judgment if the tort were recognized under Indiana

       law because the disclosure of private information to “two co-workers does not

       satisfy the publicity requirement”).


[34]   Assuming for the sake of argument that Indiana recognizes the tort, the

       Defendants are entitled to summary judgment on this claim. Mataranglo has

       alleged and designated evidence, which if proven to be true, would establish

       that LaCross disclosed her private prescription information to only one person:

       Geisler. Therefore, Mataranglo has not alleged facts that would satisfy the

       “publicity element” of the tort. See Doe, 690 N.E.2d at 692. Accordingly, we

       affirm the trial court’s grant of summary judgment to the Defendants on

       Mataranglo’s public disclosure of private facts claim.


                                                 Conclusion

[35]   The trial court properly granted summary judgment to the Defendants on

       Mataranglo’s public disclosure of private facts claim. Still, genuine issues of

       material fact preclude the entry of summary judgment on Mataranglo’s

       remaining claims. Therefore, we affirm the trial court’s order denying summary
       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 13 of 14
       judgment to LaCross, but we reverse the trial court’s order granting summary

       judgment to Meijer.


[36]   Affirmed in part, reversed in part and remanded for proceedings consistent with

       this opinion.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CT-849 | January 24, 2017   Page 14 of 14
