                                                                     Oct 02 2015, 9:32 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE THE
Joseph E. Allman                                           TRUSTEES OF INDIANA
Macey Swanson and Allman                                   UNIVERSITY
Indianapolis, Indiana                                      Cory Brundage
                                                           Cory Brundage LLC
                                                           Indianapolis, Indiana
                                                           ATTORNEYS FOR APPELLEE
                                                           CLARIAN HEALTH PARTNERS
                                                           John David Hoover
                                                           Laurie E. Martin
                                                           Amanda L.B. Mulroony
                                                           Hoover Hull Turner LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Courtney R. Robbins,                                       October 2, 2015
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A04-1412-CT-583
        v.                                                 Appeal from the Marion Superior
                                                           Court
The Trustees of Indiana                                    The Honorable Timothy W.
University and Clarian Health                              Oakes, Judge.
Partners, Inc.,                                            Trial Court Cause No.
Appellees-Defendants.                                      49D13-1207-CT-27728




Brown, Judge.


Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015                   Page 1 of 26
[1]   Courtney R. Robbins appeals the trial court’s grant of summary judgment in

      favor of the Trustees of Indiana University and Clarian Health Partners, Inc.

      She raises the following two issues, which we revise and restate as:


              I. Whether the trial court erred in granting summary judgment
                 in favor of the Trustees and Clarian on the issue of vicarious
                 liability; and
              II. Whether the trial court erred in granting summary judgment
                  in favor of the Trustees on the issue of negligent hiring.


      We affirm.


                                       Facts and Procedural History

[2]   In September 2010, Tiffaney DeBow, a licensed practical nurse, applied for a

      job at the Indiana University School of Medicine. Her application revealed that

      she had been a nurse for twelve years and had worked at three hospitals and a

      nursing home. Her application also revealed that she had been convicted of

      misdemeanor battery in May 2009. When questioned about the conviction,

      DeBow explained that during a confrontation with a woman who had made

      comments about DeBow’s daughter on the Internet, DeBow poked the woman

      on the forehead.


[3]   As part of the application process, DeBow also read and signed the Indiana

      University Department of Medicine Commitment to Confidentiality

      Agreement, which provides in relevant part as follows:

              The IU Department of Medicine regards the security and
              confidentiality of its data and information to be of utmost
      Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 2 of 26
              importance. Each information user holds a position of trust in
              which he or she must preserve the confidentiality, privacy and
              security of Indiana University (IU), Indiana University
              Foundation (IUF), practice plan, patient medical record and
              protected health information (PHI) that is accessed, maintained,
              or transmitted in any form or medium.

      Appellant’s Appendix at 49.


[4]   The Confidentiality Agreement also provided in part:


              As an information user:
              a. I will only access, use (read, add, change, or delete), or
              disclose information for which I have a business reason and am
              authorized to do so. At no time will I access, use, or disclose
              confidential or sensitive information to any person or third party
              for a personal, unauthorized, unethical, or illegal reason. I will
              not share my password(s) nor will I use a sign-on/password that
              is not assigned to me.
              b. I understand that my obligation to safeguard confidentiality at
              all times, both on duty and off-duty, remains in full force during
              the entire term of my employment/affiliation and continues in
              effect after such employment/affiliation terminates. . . .

      Id.


[5]   After DeBow completed her employment application, an independent company

      conducted a pre-employment background check on her for the Trustees. The

      search revealed the misdemeanor battery conviction, which resulted in a one-

      year sentence with all but four days suspended, community service, six months

      on probation and twelve anger management classes. The search also revealed

      dismissed charges for class A misdemeanor criminal mischief in 2006 and class

      Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015    Page 3 of 26
      A misdemeanor driving while suspended in 2008 as well as a probation

      violation.


[6]   Following the background check, DeBow was offered a position providing

      health care services to the patients of the School of Medicine’s

      Gastroenterology Department. After DeBow accepted the position, Nada

      Phoenix, acting on behalf of the School of Medicine, submitted an Access

      Request to Clarian Data Security to provide DeBow a username and password

      so she could access two electronic medical records systems owned by Clarian.

      Phoenix also submitted DeBow’s signed Responsibility Statement wherein

      DeBow agreed to keep information in the medical records confidential and not

      to disclose it for personal, unauthorized, unethical, or illegal reasons. Both the

      Access Request and Responsibility Statement identified DeBow as a non-

      Clarian employee.


[7]   On October 11, 2010, her first day of work, DeBow began accessing the

      medical records of Robbins and her children. Specifically, a medical records

      access report shows that on October 11 and 13, DeBow accessed the medical

      records of Robbins and her children forty-two times between 2:05 p.m. and 4:28

      p.m. Robbins was not a patient of the gastroenterology department, and the

      medical records DeBow accessed were not created in connection with treatment

      and care of Robbins at the School of Medicine. DeBow found the information

      in one of the medical records systems owned by Clarian. On October 13,

      DeBow posted medical information about Robbins obtained from these records

      on Robbins’s former boyfriend’s internet blog. When confronted by her

      Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 4 of 26
       employer, DeBow admitted what she had done and that she knew it was

       wrong. She admitted “that there was no legitimate business reason for her to

       access the records and explained that her sole motivation was that . . . [she]

       desired revenge.” Id. at 54.


[8]    Pursuant to a plea agreement executed in February 2012, DeBow pled guilty in

       federal court to the felony charge of wrongful disclosure of individually

       identifiable health information for obtaining Robbins’s health information

       during the course of her employment with the intent to transfer and use that

       information for personal gain and malicious harm and to embarrass Robbins,

       and DeBow was sentenced to probation for a term of three years and was fined

       $1,000.


[9]    In November 2012, Robbins filed an amended complaint against the Trustees

       and Clarian wherein she alleged that the defendants were vicariously liable for

       the actions of DeBow, who allegedly committed the torts of invasion of privacy

       by the public disclosure of private facts and intentional infliction of emotional

       distress. Robbins alternatively argued that if the Trustees were not vicariously

       liable to her for these acts, they were liable to her for negligently hiring DeBow.


[10]   The Trustees and Clarian filed summary judgment motions. The Trustees

       designated DeBow’s affidavit in support of their motion. In the affidavit,

       DeBow explained that she accessed Robbins’s medical records for “personal

       reasons.” Id. at 57. According to DeBow, she and Robbins “had been involved

       in an acrimonious personal feud for many years and that was [her] motivation


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 5 of 26
       to disclose protected medical information.” Id. DeBow further explained that

       she “was acting on [her] own initiative and not within the scope of [her]

       employment when [she] accessed and published [] Robbins’ records,” that she

       “was not involved in any way in the provision of medical care to [] Robbins or

       her children,” and that she “knew it was against [her] employer’s policies and

       rules and [her] acts were not part of [her] job.” Id. Following a hearing, the

       trial court granted summary judgment in favor of the Trustees and Clarian.


                                                     Discussion

[11]   Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to judgment as a matter of law.

       Ind. Trial Rule 56(C). In reviewing a trial court’s ruling on summary judgment,

       this court stands in the shoes of the trial court and applies the same standard in

       determining whether to affirm or reverse the grant of summary judgment. Doe

       v. Lafayette Sch. Corp., 846 N.E.2d 691, 696 (Ind. Ct. App. 2006), reh’g denied.

       We must therefore determine whether there is a genuine issue of material fact

       and whether the trial court has correctly applied the law. Id.


[12]   Relying on specifically designated evidence, the moving party bears the burden

       of making a prima facie showing that there are no genuine issues of material fact

       and that it is entitled to judgment as a matter of law. Id. If the moving party

       meets this burden, the burden then shifts to the nonmovant to set forth

       specifically designated facts showing that there is a genuine issue for trial. Id.




       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 6 of 26
[13]   A genuine issue of material fact exists where facts concerning an issue that

       would dispose of the issue are in dispute or where the undisputed material facts

       are capable of supporting conflicting inferences on such an issue. Id. In our

       review, we consider all of the designated evidence in the light most favorable to

       the nonmoving party. Id.


                                                           I.


                                                     A. Clarian


[14]   The first issue is whether the trial court erred in granting summary judgment in

       favor of the Trustees and Clarian on the issue of vicarious liability. According

       to Robbins, the Trustees and Clarian are vicariously liable to Robbins for the

       actions of DeBow, who allegedly committed the torts of invasion of privacy

       with the public disclosure of private facts and intentional infliction of emotional

       distress. 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).


[15]   At the outset, we note that the parties agree that Clarian was not Debow’s

       employer. Robbins, however, argues that Clarian can be held liable under the

       respondeat superior doctrine because Clarian and the Trustees were in a joint

       venture and DeBow was Clarian’s agent.




       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 7 of 26
[16]   A joint venture is an association of two or more persons formed to carry out a

       single business enterprise for profit. Walker v. Martin, 887 N.E.2d 125, 138 (Ind.

       Ct. App. 2008), reh’g denied, trans. denied. In a joint venture, the parties must be

       bound by an express or implied contract providing for (1) a community of

       interests, and (2) joint mutual control, which is an equal right to direct and

       govern the undertaking that binds the parties to the agreement. Id. A joint

       venture is similar to a partnership except that a joint venture contemplates a

       single transaction. Id. A joint venture agreement must also provide for the

       sharing of profits. Id.


[17]   Our review of the designated materials reveals a Definitive Health Care

       Resources Consolidation Agreement, which sets forth the relationship between

       Clarian and the Trustees. Specifically, the Agreement provides in relevant part

       as follows:


               11.01 General Relationships; Retention of Profits and Losses
               [Clarian] is a separate operational, financial and corporate
               organization from the Trustees . . . [A]ll revenue of the Hospitals
               . . . shall be the sole property of [Clarian] and likewise [Clarian]
               shall be solely responsible for all costs and expenses related to the
               ownership, management, and operations of the Hospitals and its
               other property, assets, and business. Any losses from the
               operation of the Hospitals shall remain [Clarian’s] sole
               responsibility . . . and shall not be subject to allocation to or
               payable by . . . the Trustees . . . . Any revenue exceeding
               expenses shall remain the property of [Clarian] and shall not be
               subject to distribution to . . . the Trustees . . . .”




       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 8 of 26
       Appellant’s Appendix at 536. Because this Agreement does not give Clarian

       and the Trustees an equal right to direct and govern any undertaking and does

       not provide for the sharing of profits, Clarian and the Trustees were not in a

       joint venture for the purpose of a finding of vicarious liability.


[18]   And DeBow was not Clarian’s agent. For the liability of an agent to be

       imputed to a principal, an agency relationship must exist. Smith v. Delta Tau

       Delta, Inc., 9 N.E.3d 154, 164 (Ind. 2014). An essential element of that

       relationship is that the agent must act on the principal’s behalf. Id. The agent

       must also consent to act on the principal’s behalf and be subject to the

       principal’s control. Id. Whether an agency relationship exists is generally a

       question of fact, but if the evidence is undisputed, summary judgment may be

       appropriate. Id.


[19]   Our review of the designated evidence reveals that DeBow, who took care of

       patients in the medical school’s gastroenterology department, did not act on

       Clarian’s behalf and was not subject to Clarian’s control. Rather, at the

       medical school’s request, Clarian simply issued a username and password to

       DeBow so that she could access the electronic medical records that Clarian

       owned. Clarian is not subject to vicarious liability for DeBow’s actions.

                                                    B. Trustees

[20]   We next turn to whether the Trustees as DeBow’s employer may be held

       vicariously liable for the actions of DeBow. In her amended complaint,

       Robbins alleged that the Trustees were vicariously liable for the actions of

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 9 of 26
DeBow and that DeBow committed the tort of invasion of privacy by the public

disclosure of private facts as well as the tort of intentional infliction of

emotional distress. If the Trustees may not be held vicariously liable for the

actions of DeBow, then the Trustees are entitled to summary judgment with

respect to Robbins’s claim based on the alleged public disclosure of private facts

by DeBow, and her claim based on the alleged intentional infliction of

emotional distress by DeBow.1




1
  The Trustees maintain that the tort of invasion of privacy by public disclosure of private facts is not a valid
cause of action in Indiana. There is some support for this position. See Doe v. Methodist Hosp., 690 N.E.2d
681, 682-693 (Ind. 1997) (plurality opinion) (considering the tort of invasion of privacy and “whether one
branch of that tort, public disclosure of private facts, may form the basis of a civil action in Indiana,” holding
that “[o]n the facts of this case, we decline to recognize that it may,” and concluding that “[t]he facts and the
complaint in this particular case do not persuade us to endorse the sub-tort of disclosure”); see also Felsher v.
Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001) (observing statements in Doe referencing the Second
Restatement’s view of the four injuries involved in the privacy tort and stating that “[o]ur discussion of this
history and the Second Restatement served as a prelude to our decision not to recognize a branch of the tort
involving the public disclosure of private facts”); Westminster Presbyterian Church of Muncie v. Yonghong Cheng,
992 N.E.2d 859, 868 (Ind. Ct. App. 2013) (citing Doe and stating that the public disclosure of private facts is
not a recognized cause of action in Indiana), trans. denied. But see J.H. v. St. Vincent Hosp. & Health Care Ctr.,
Inc., 19 N.E.3d 811, 815-816 (Ind. Ct. App. 2014) (addressing the claim of invasion of privacy by public
disclosure where a health care provider gave information to a family member of the plaintiff, citing Doe for
the proposition that the public disclosure of private facts, described by the Second Restatement, occurs when
a person gives “publicity” to a matter that concerns the “private life” of another and that would be “highly
offensive” to a reasonable person and that is not of legitimate public concern, and holding that no publicity
occurred in the case and thus that the defendant was entitled to summary judgment on the claim); Dietz v.
Finlay Fine Jewelry Corp., 754 N.E.2d 958, 966 (Ind. Ct. App. 2001) (stating that the parties, citing Doe,
disputed whether Indiana recognizes an action for public disclosure of private facts, that under the specific
facts and complaint presented in Doe the plurality was not persuaded “to endorse the sub-tort of disclosure,”
and that “[t]he plurality [in Doe] did not, however, foreclose all future claims for public disclosure of private
facts,” and holding that, because the defendants negated the publicity element of the plaintiff’s claim, they
were entitled to summary judgment (citing Ledbetter v. Ross, 725 N.E.2d 120, 123 (Ind. Ct. App. 2000)
(discussing the plaintiff’s claim of invasion of privacy by public disclosure of private facts related to the
transmission of confidential information and holding that the plaintiff failed to allege there was a public
disclosure of the facts)). Robbins cannot prevail against the Trustees unless she can establish that the
Trustees were vicariously liable for DeBow’s acts of committing the tort of invasion of privacy by public
disclosure of private facts, if the claim may form the basis of a civil action on the facts of this case, or the tort
of intentional infliction of emotional distress. Because we conclude that the Trustees may not be held
vicariously liable for DeBow’s actions, and consequently that the Trustees are entitled to summary judgment
as to both Robbins’s claim of invasion of privacy by public disclosure of private facts and her claim of
intentional infliction of emotional distress, we need not address whether the Trustees would be entitled to

Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015                              Page 10 of 26
[21]   Under the doctrine of respondeat superior, an employer, who is not liable

       because of its own acts, can be held liable “for the wrongful acts of his

       employee which are committed within the scope of employment.” Doe, 846

       N.E.2d at 701. An employee is acting within the scope of her employment

       when she is acting, at least in part, to further the interests of her employer. Id.

       Where an employee acts partially in self-interest but is still partially serving her

       employer’s interests, liability will attach. Id. at 701-702. However, simply

       because an act could not have occurred without access to the employer’s

       facilities does not bring it within the scope of employment. Id. at 702.


[22]   In addition, although Indiana courts have established that an employer can be

       vicariously liable for the criminal acts of an employee, this determination

       depends upon whether the employee’s actions were authorized by the

       employer. Id. If it is determined that none of the employee’s acts were

       authorized, there is no respondeat superior liability. Id. “Furthermore, acts for

       which the employer is not responsible are those done ‘on the employee’s own

       initiative, [] with no intention to perform it as part of or incident to the service

       for which he is employed.” Id. (quoting Stropes v. Heritage House Childrens Ctr.,

       547 N.E.2d 244, 247 (Ind. 1989), reh’g denied). “However, an employee’s




       summary judgment as to these claims on other grounds. See Brown v. Wabash Nat. Corp., 293 F. Supp. 2d 903,
       905 (N.D. Ind. 2003) (holding that, “[e]ven assuming Indiana courts recognize such a claim for public
       disclosure of private facts based on the facts presented in this matter,” the plaintiff’s allegations did not state a
       claim upon which relief can be granted for the tort of invasion of privacy based on public disclosure of private
       facts). Thus, we need not delve into whether the tort of invasion of privacy by public disclosure of private
       facts is a valid civil cause of action.

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015                             Page 11 of 26
       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.”

       Stropes, 547 N.E.2d at 247. If some of the employee’s actions were authorized,

       the question of whether the unauthorized acts were within the scope of

       employment is one for the jury. Doe, 846 N.E.2d at 702. The Indiana Supreme

       Court, in addressing an employer’s vicarious liability for an employee’s

       wrongful actions, addressed whether the employee was explicitly or impliedly

       authorized to take the action and whether the acts were an extension of

       authorized acts, were incidental to or associated with the employee’s authorized

       duties, furthered the employer’s business, or were motivated to any extent by

       the employer’s interests. See Barnett, 889 N.E.2d at 286.


[23]   In support of her argument that the trial court erred in granting summary

       judgment in favor of the Trustees, Robbins directs us to this court’s opinion in

       Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind. Ct. App. 2014), on reh’g, 25 N.E.3d

       748, trans. denied. In Walgreen, a pharmacist, while at work, looked up the

       prescription profile of a customer in the Walgreen computer system. 21 N.E.3d

       at 104. A person who was in a relationship with the pharmacist sent text

       messages to the Walgreen customer stating that he had a printout related to the

       customer’s prescription information. Id. at 104-105. The customer later

       contacted Walgreen to report her suspicion that the pharmacist had looked at

       her personal records and disclosed the information she learned to an

       unauthorized individual. Id. at 105. In addressing vicarious liability under the


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 12 of 26
       doctrine of respondeat superior, this court found that the pharmacist’s actions

       were of the same general nature as those authorized, or incidental to the actions

       that were authorized, by Walgreen. Id. at 108. The court noted that the

       pharmacist was authorized to use the computer system, handle prescriptions for

       customers, look up customer information, review patient prescription histories,

       and make prescription-related printouts. Id. The court further observed that the

       customer belonged to the general category of individuals to whom the

       pharmacist owed a duty of privacy protection by virtue of her employment as a

       pharmacist. Id. The court held that the fact that some of the pharmacist’s

       actions were authorized, or incidental to authorized actions, or of the same

       general nature as authorized actions, precluded summary judgment. Id.


[24]   The court in Walgreen also discussed this court’s previous opinion in Doe, 846

       N.E.2d 691. In Doe, a teacher gathered email addresses from his students in

       order to communicate with them about homework and other matters. Id. at

       695. The teacher later advertised in an email to his students that he and his

       wife were looking for a babysitter, Doe responded, and soon thereafter began

       babysitting for the teacher. Id. The relationship between the teacher and Doe

       became romantic, and the email exchanges between them became sexually

       charged. Id. In emailing Doe, the teacher used a personal email account but

       regularly sent the emails using a school-provided laptop computer, and some of

       the emails were sent during school hours. Id. The teacher was later convicted

       of child seduction and engaging in deviate sexual conduct. Id. Doe filed a

       complaint for damages against the school, and the trial court entered summary

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 13 of 26
       judgment in favor of the school, noting the teacher was not acting within the

       scope of his employment but rather acting on his own initiative. Id. at 695-697.

       Doe appealed and argued in part that the school was vicariously liable for the

       acts of the teacher by way of the doctrine of respondeat superior. Id. at 701.


[25]   In support of her argument that the school was vicariously liable, Doe argued

       that the teacher used a school-provided laptop to send her emails and that

       emailing students was an act authorized by the school. Id. This court observed

       that, if some of an employee’s actions were authorized, the question of whether

       the unauthorized acts were within the scope of employment is one for the jury.

       Id. at 702. We noted that, simply because the teacher used the school’s

       equipment and facilities to initiate a relationship with Doe, his acts did not

       necessarily fall within his scope of employment. Id. We held that, while the

       school authorized the teacher “to send emails to students for school purposes,”

       there was no indication that the school “authorized him to send emails to

       students for personal reasons.” Id. On this basis, we concluded that the

       teacher, “on his own initiative and unrelated to any school function,” instigated

       an intimate relationship with Doe. Id. We also concluded that his actions

       “were not incident to any service provided by [the school], but rather were

       fueled entirely by self-interest in a romantic relationship with Doe.” Id. We

       affirmed the entry of summary judgment in favor of the school. Id.


[26]   We find the reasoning in Doe persuasive in light of the particular facts and

       circumstances of this case. DeBow accessed Robbins’s medical records while at

       work. However, like in Doe, the fact that DeBow used the access provided to

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 14 of 26
       her to obtain Robbins’s medical information does not necessarily mean that her

       acts were within her scope of employment. Id.


[27]   Importantly, in signing the Indiana University Department of Medicine

       Commitment of Confidentiality Agreement, DeBow agreed that she would

       “only access, use (read, add, change, or delete), or disclose information for which

       [she had] a business reason and [was] authorized to do so” and that “[a]t no time

       [would she] access, use, or disclose confidential or sensitive information to any

       person or third party for a personal, unauthorized, unethical, or illegal reason.”

       Appellant’s Appendix at 49 (emphases added). The designated evidence thus

       establishes that, while DeBow’s employer authorized her to access patient

       information for business reasons, she was expressly not authorized to access, use,

       or disclose the information for personal, unauthorized, unethical, or illegal

       reasons. Indeed, DeBow stated in her affidavit, which was designated by the

       Trustees, that she accessed Robbins’s medical records “for personal reasons and

       not as part of [her] employment by Indiana University.” Id. at 57. DeBow also

       stated that she “was acting on [her] own initiative and not within the scope of

       [her] employment when [she] accessed and published [] Robbins’ records,” that

       she “was not involved in any way in the provision of medical care” to Robbins,

       and that she “knew it was against [her] employer’s policies and rules and [her]

       acts were not part of [her] job.” Id.


[28]   The affidavit of an administrative supervisor in the gastroenterology

       department, also designated by the Trustees, stated that, when DeBow was


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015    Page 15 of 26
       asked about improperly accessing Robbins’s health records, DeBow “admitted

       that there was no legitimate business reason for her to access the records and

       explained that her sole motivation was that . . . [she] desired revenge.” Id. at

       54. Robbins does not point to designated evidence opposing these statements.

       Robbins does not claim that DeBow accessed her records for business reasons.

       The Trustees’ designated evidence establishes that Robbins was not a patient of

       the School of Medicine’s Gastroenterology Department, unlike in Walgreen

       where the person whose information was accessed was a Walgreen customer.

       In her amended complaint, which was designated by the Trustees, Robbins

       claimed that DeBow “had no reason to access [her] and her children’s health

       care records” and that DeBow “was not involved in any way with providing

       any heath [sic] care or treatment of Robbins or her children.” Id. at 36.


[29]   DeBow of her own initiative and unrelated to any business function of her

       employment or her employer, accessed and disclosed the private medical

       records of Robbins. This disclosure was unauthorized and illegal. DeBow pled

       guilty in federal court to the wrongful disclosure of individually identifiable

       health information for obtaining Robbins’s health information for personal

       gain. DeBow’s wrongful act was not to any extent to further her employer’s

       business. DeBow was not explicitly or impliedly authorized to access or

       disclose medical records for personal reasons, her actions were not an extension

       of authorized access for the purpose of treating Robbins, and the acts were not

       motivated to any extent by her employer’s interests. DeBow’s actions were not

       incident to any service provided by her employer but were motivated entirely by

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 16 of 26
       self-interest related to a personal relationship with Robbins and to humiliating

       Robbins. The actions of DeBow were not sufficiently associated with her

       employment duties so as to fall within the scope of her employment.


[30]   Walgreen does not require a different outcome. Some of the pharmacist’s

       actions in Walgreen were authorized, such as handling prescriptions for

       Walgreen customers, reviewing prescription histories, and making prescription-

       related printouts. The Walgreen opinion did not discuss whether the pharmacist

       signed an agreement explicitly limiting her access to customer records and

       forbidding the use of records for personal reasons. As revealed by the

       confidentiality agreement and other designated evidence discussed above, none

       of DeBow’s conduct, including accessing and disclosing Robbins’s medical

       records for personal reasons, was authorized by her employer.


[31]   We conclude that the Trustees designated evidence making a prima facie

       showing that DeBow’s wrongful acts were not committed within the scope of

       employment, that Robbins did not set forth designated facts showing there is a

       genuine issue for trial, and thus that the Trustees established that they as

       DeBow’s employer may not be held vicariously liable for DeBow’s actions

       under the doctrine of respondeat superior. Accordingly, we affirm the entry of

       summary judgment in favor of the Trustees as to Robbins’s claim of invasion of

       privacy by public disclosure of private facts and her claim of intentional

       infliction of emotional distress.




       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 17 of 26
                                                           II.


[32]   The next issue is whether the trial court erred in granting summary judgment in

       favor of the Trustees on the issue of negligent hiring.2 Specifically, Robbins

       argues that the Trustees knew or should have known that Debow had a

       propensity to commit criminal acts and they “[were] asking for trouble.”

       Appellant’s Brief at 28.


[33]   Indiana recognizes the tort of negligent hiring and retention of an employee.

       Konkle v. Henson, 672 N.E.2d 450, 460 (Ind. Ct. App. 1996). We have adopted

       the Restatement (Second) of Torts § 317 (1965), which provides:

               A master is under a duty to exercise reasonable care so to control
               his servant while acting outside the scope of his employment as
               to prevent him from intentionally harming others or from so
               conducting himself as to create an unreasonable risk of bodily
               harm to them, if
                        (a) the servant
                                 (i) is upon the premises in possession of the master
                                 or upon which the servant is privileged to enter only
                                 as his servant, or
                                 (ii) is using a chattel of the master, and
                        (b) the master
                                 (i) knows or has reason to know that he has the
                                 ability to control his servant, and




       2
        Because Clarian did not hire Debow, the trial court did not err in granting summary judgment in favor of
       Clarian on the negligent hiring issue.

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015                     Page 18 of 26
                                 (ii) knows or should know of the necessity and
                                 opportunity for exercising such control.

[34]   In addition, there are general rules and concepts surrounding the imposition of

       a duty that must also be satisfied. Clark v. Aris, Inc., 890 N.E.2d 760, 763 (Ind.

       Ct. App. 2008), trans. denied. In determining whether to impose a duty of care,

       three factors must be considered: (1) the relationship between the parties, (2) the

       reasonable foreseeability of harm to the person injured, and (3) public policy

       concerns. Id. (citing Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991)).

       Imposition of a duty is limited to those instances where a reasonably

       foreseeable victim is injured by a reasonably foreseeable harm. Id. at 764 (citing

       Webb, 575 N.E.2d at 995). Whether a duty exists is ordinarily a question of

       law, but sometimes the existence of a duty depends upon underlying facts that

       require resolution by the trier of fact. Id.


[35]   Sandage v. Board of Commissioners of Vanderburgh County, 897 N.E.2d 507 (Ind.

       Ct. App. 2008), is instructive on the issue of negligent hiring and an employee’s

       criminal history. There, an employer hired Travis Moore, a jail inmate on work

       release who had been convicted of robbery and recently tested positive for

       THC, to clean parking lots. Instead of returning to jail after work one evening,

       Moore went to a private home and killed three people. The victims’ estates

       filed a complaint for damages against Sandage’s employer alleging that the

       employer had negligently hired and retained Sandage. The trial court granted

       the employer’s summary judgment motion. On appeal, this court pointed out

       that Moore’s employment did not put him in contact with the victims and the


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 19 of 26
       murders did not constitute a recurrence of criminal behavior for which Moore

       had earlier been convicted. Id. at 513. We therefore affirmed the trial court’s

       grant of summary judgment in favor of the employer. See also Clark, 890 N.E.2d

       at 765 (concluding that where Baer’s employment did not put him in contact

       with the victims and nothing in his criminal history suggested that he was

       capable of murder, neither the victims nor the tragic harm that befell them was

       reasonably foreseeable).


[36]   Here, as in Sandage and Clark, DeBow’s employment did not put her in contact

       with the victim, who was not a department of gastroenterology patient. DeBow

       was not authorized to access Robbins’s electronic medical records when she

       was not a patient of DeBow’s employer, and DeBow’s violation of medical

       confidentiality did not constitute a recurrence of criminal behavior for which

       DeBow had earlier been convicted. Specifically, there were no prior reports of

       DeBow accessing and publishing any other patient’s confidential medical

       records. Under these circumstances, Robbins was not a reasonably foreseeable

       victim and DeBow’s internet posting of information that humiliated Robbins

       was not a reasonably foreseeable harm. The trial court did not err in granting

       summary judgment in favor of the Trustees on the negligent hiring issue.


                                                     Conclusion

[37]   For the foregoing reasons, the trial court did not err in granting summary

       judgment in favor of the Trustees and Clarian.


[38]   Affirmed.


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 20 of 26
Pyle, J., concurs.
Crone, J., concurs in part and concurs in result in part with separate opinion.




Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 21 of 26
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Courtney R. Robbins,                                       Court of Appeals Case No.
                                                                  49A04-1412-CT-583
       Appellant-Plaintiff,

               v.

       The Trustees of Indiana
       University and Clarian Health
       Partners, Inc.,
       Appellees-Defendants.




       Crone, Judge, concurring in part and concurring in result in part.


[39]   I fully concur in the majority’s affirmance of summary judgment in favor of

       Clarian and in favor of the Trustees on Robbins’s negligent hiring and

       intentional infliction of emotional distress claims. I would also affirm summary

       judgment in favor of the Trustees on Robbins’s claim for invasion of privacy by

       the public disclosure of private facts, but I would do so on the basis that the

       Trustees cannot be held vicariously liable for a nonexistent tort. Whether




       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015              Page 22 of 26
       Indiana recognizes this tort is technically an open question, but for all practical

       purposes the answer is currently no.3


[40]   In Doe v. Methodist Hospital, 690 N.E.2d 681, 682 (Ind. 1997), a plurality of our

       supreme court “decline[d] to recognize” the tort, notwithstanding the insistence

       of two justices that “[f]or almost half a century, Indiana courts have clearly

       recognized the common law tort of invasion of privacy, including the

       unwarranted public disclosure of private matters.” Id. at 694 (Dickson, J.,

       joined by Sullivan, J., concurring in result). Four years later, in Felsher v.

       University of Evansville, 755 N.E.2d 589, 593 (Ind. 2001), a unanimous supreme

       court essentially characterized the Doe plurality’s view as a majority holding:

       “Our discussion of [the history of the privacy tort] and the Second Restatement

       served as a prelude to our decision not to recognize a branch of the tort

       involving the public disclosure of private facts.” More recently, in Westminster

       Presbyterian Church of Muncie v. Cheng, 992 N.E.2d 859, 868 (Ind. Ct. App.

       2013), trans. denied (2014), another panel of this Court cited Doe in stating that

       “public disclosure of private facts is not a recognized cause of action in

       Indiana,” and our supreme court denied transfer in that case. 4


[41]   In sum, since Felsher was decided in 2001, our state’s highest court has acted as

       if public disclosure of private facts is not a valid cause of action in Indiana, even




       3
        Unlike the Trustees in this case, the employer in Walgreen, 21 N.E.3d 99, did not properly raise the issue on
       appeal, and this Court declined to address it. Id. at 112 n.2.
       4
           Disappointingly, Robbins fails to acknowledge either Felsher or Cheng in her reply brief.


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015                        Page 23 of 26
       though a majority of the court has not so held. Although neither Doe nor Felsher

       is binding precedent on this point, I am not inclined to rock this particular boat.

       Consequently, I would affirm summary judgment in favor of the Trustees on

       Robbins’s invasion of privacy claim on the basis that they cannot be held

       vicariously liable for a nonexistent tort.


[42]   Nevertheless, I respectfully urge our supreme court to revisit its

       pronouncements in Doe and Felsher in light of the exponential increase in the

       amount and sensitivity of personal information that has become available

       online since those cases were decided and the corresponding increase in the

       speed and ease with which that information may be broadcast to the public. It

       is difficult to overstate the extent to which we have surrendered, by choice or

       compulsion, the most intimate details of our lives to the digital domain. Many

       Hoosiers are paid (or, as in the case of state employees, must be paid) online.

       And many Hoosiers bank, shop, conduct business, pay taxes, engage in social

       and political activity, seek medical and legal advice, and (pursuant to federal

       law) have their health records stored online. Although much of this

       information is expected and intended to be disseminated to a wide audience

       (family vacation photos, job résumés), much is expected and intended to be

       kept under the electronic equivalent of a lock and key (financial records,

       psychiatric treatment notes). See Neil M. Richards & Daniel J. Solove, Prosser’s

       Privacy Law: A Mixed Legacy, 98 CAL. L. REV. 1887, 1920 (Dec. 2010) (“People

       expose information with varying expectations of the extent and nature of its

       future exposure. When they go about their daily activities, most people expect


       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 24 of 26
       not to have the information about them recorded, compiled, or widely

       disseminated.”). As Justice Dickson presciently recognized in his separate

       opinion in Doe, “With our ever-increasing population and the growing

       technological opportunities for invasive scrutiny into others’ lives, the

       compilation of private data, and the disclosure of purely personal matters, this

       common law tort [of public disclosure of private facts] grows in importance as a

       valuable source of deterrence and accountability.” 690 N.E.2d at 695 (Dickson,

       J., concurring in result).5


[43]   Assuming for argument’s sake that the tort is in fact alive and well in Indiana, I

       would agree with the majority that DeBow’s acquisition and disclosure of

       Robbins’s medical information for purely personal reasons was not within the

       scope of her employment and therefore the Trustees may not be held

       vicariously liable under a respondeat superior theory. I would not find the




       5
         One basis for the Doe plurality’s refusal to recognize the tort was its “potential conflict with the libel
       provision of the Indiana Bill of Rights: ‘In all prosecutions for libel, the truth of the matters alleged to be
       libelous may be given in justification.’” 690 N.E.2d at 687 (quoting IND. CONST. art. 1, § 10). I find greater
       merit in Justice Dickson’s view that “our constitution provides a strong basis for continuing to recognize this
       tort”:
              [A] primary harm that can result from a public disclosure of private facts is an injury to a
              person’s reputation. The Indiana Constitution provides express recognition of an individual’s
              interest in reputation and accords it specific protection. Bals v. Verduzco, 600 N.E.2d 1353, 1355
              (Ind. 1992). It expresses distinct protection for personal reputation: “[E]very person, for injury
              done to him in his person, property, or reputation, shall have remedy by due course of law.”
              IND. CONST. art. 1, § 12 (emphasis added). Furthermore, the provision protecting the “right to
              speak, write, or print, freely, on any subject whatever” is expressly qualified by the limitation
              “but for the abuse of that right, every person shall be responsible.” IND. CONST. art. 1, § 9.
              While the framers were concerned that the defense of truth be permitted in prosecutions for
              libel, e.g., defamatory falsehoods, it does not follow that they would have intended to prohibit
              accountability for harm resulting from the unwarranted public disclosure of private facts, albeit
              truthful disclosures.
       Id. at 695 (footnote omitted) (Dickson, J., concurring in result).

       Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015                         Page 25 of 26
Confidential Agreement to be dispositive in this regard, however, and I would

note that other courts have recognized that direct liability may arise in similar

situations. See, e.g., Doe v. Guthrie Clinic, Ltd., 5 N.E.3d 578, 581 (N.Y. 2014)

(“A medical corporation may … be liable in tort for failing to establish adequate

policies and procedures to safeguard the confidentiality of patient information

or to train their employees to properly discharge their duties under those

policies and procedures.”). This is an area in which technology is advancing

faster than the law, and I am sure that we will be required to revisit it in the

future.




Court of Appeals of Indiana | Opinion 49A04-1412-CT-583 | October 2, 2015   Page 26 of 26
