                                                                  FILED
                                                             Sep 27 2016, 8:43 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Scott A. Faultless                                         Tricia Kirkby Hofmann
Craig Kelley & Faultless, LLC                              Rebecca L. Didat
Indianapolis, Indiana                                      Waters Tyler Hofmann &
Merritt K. Alcorn                                          Scott, LLC
Alcorn Sage Schwartz & Magrath, LLP                        New Albany, Indiana
Madison, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dale Sedam, Kim Sedam, and                                 September 27, 2016
Bryan Norris, as co-personal                               Court of Appeals Case No.
representatives of the Estate of                           39A05-1602-CT-296
David C. Hamblin, deceased,                                Appeal from the Jefferson Circuit
Appellants-Plaintiffs,                                     Court
                                                           The Honorable Darrell M. Auxier,
        v.                                                 Judge
                                                           Trial Court Cause No.
2JR Pizza Enterprises, LLC                                 39C01-1209-CT-890
doing business as Pizza Hut
#013413, Amanda Parker,
individually and as an employee
of 2JR Pizza Enterprises, LLC,
and Ralph Bliton,
Appellees-Defendants



Mathias, Judge.



Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016           Page 1 of 13
[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


      Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 2 of 13
      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.

      Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 3 of 13
       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


       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 4 of 13
       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:

       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 5 of 13
               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.
       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 6 of 13
[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. at

       530, 320 N.E.2d at 786.


                The doctrine of respondeat superior provides the proper vehicle
                for a direct action aimed at recovering the damages resulting
                from a specific act of negligence committed by an employee
                within the scope of his employment. Proof of negligence by the
                employee on the particular occasion at issue is a common
                element to the theories of respondeat superior and negligent



       1
         The northern district court described the “special situations” as cases involving a father and son. Lange, 257
       F.Supp at 324 (stating “[t]he act of the father in directing his son to take on a task which was beyond his
       capability to fulfill is the true basis for liability”). However, the Broadstreet court made clear that the
       relationship from which liability arose was the master-servant relationship.

       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016                        Page 7 of 13
                hiring. Under the theory of respondeat superior, however, when
                the employer has stipulated that the employee was acting within
                the scope of his employment in committing the act, upon proof
                of negligence and damages, plaintiff has successfully carried his
                burden of proof against the negligent employee’s employer. Proof
                of the additional elements of negligent hiring under such
                circumstances is not relevant to the issues in dispute, is wasteful
                of the court’s time and may be unnecessarily confusing to a jury.


       Id. (citation omitted).


[16]   The Estate argues that Tindall “is in direct conflict” with our supreme court’s

       Broadstreet opinion, and therefore it is “contrary to law.” Appellants’ Br. at 19-

       20. Importantly, the doctrine of stare decisis requires that we apply “a principle

       of law which has been firmly established.” Snyder v. King et al., 958 N.E.2d 764,

       776 (Ind. 2011) (quoting Marsillett v. State, 495 N.E.2d 699, 704 (Ind. 1986)).

       Stare decisis “is a maxim of judicial restraint supported by compelling policy

       reasons of predictability that we should be reluctant to disturb long-standing

       precedent, and a rule which has been deliberately declared should not be

       disturbed by the same court absent urgent reasons and a clear manifestation of

       error.” Id. (citation and internal quotations omitted).


[17]   Moreover, “it is not this court’s role to reconsider or declare invalid decisions of

       our supreme court.” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App.

       2005).


                We are bound by the decisions of our supreme court. Supreme
                court precedent is binding upon us until it is changed either by
                that court or by legislative enactment. While Indiana Appellate

       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 8 of 13
               Rule 65(A) authorizes this [c]ourt to criticize existing law, it is
               not this court’s role to “reconsider” supreme court decisions.

       Id. (citations omitted).


[18]   As we noted above, over a century ago, the Broadstreet court held that allowing

       a plaintiff to pursue both theories of recovery was proper. Because negligent

       hiring, retention, or supervision are separate torts that are not derivative of the

       employee’s negligence, an employer’s admission that the employee was acting

       within the course and scope of his or her employment should not preclude a

       plaintiff from arguing both theories of recovery.


[19]   We acknowledge that the majority of jurisdictions that have addressed the issue

       have held that “a plaintiff cannot pursue a claim against an employer for

       negligent entrustment, hiring, supervision, or training when the employer

       admits that its employee was acting within the scope of employment when the

       accident that is the subject of the lawsuit occurred.” See Finkle v. Regency CSP

       Ventures Ltd. Partnership, 27 F.Supp.3d 996, 999 (D. South Dakota 2014).


[20]   However, a small number of jurisdictions have concluded that “an admission

       by an employer that its employee was acting within the scope of her

       employment does not preclude an action for both respondeat superior and

       negligent entrustment, training, hiring, retention, or supervision.” Id. at 1000.

       These courts do not allow a “claim of agency to preclude a separate tort claim”

       because “‘negligent entrustment and negligent hiring, retention, or supervision

       are torts distinct from respondeat superior and that liability is not imputed but


       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 9 of 13
       instead runs directly from the employer to the person injured.’” Id. (quoting

       Marquis v. State Farm Fire and Cas. Co., 961 P.2d 1213, 1225 (1998)).


[21]   Aligning itself with the minority view, the Minnesota Court of Appeals

       observed:

               In order to hold an entrustor liable to an injured third party, the
               entrustor’s negligence must be accompanied by negligence on the
               part of the entrustee, but the entrustor’s duty runs directly to
               those who might be put at risk as a result of the negligent
               entrustment. As stated by Prosser, “[o]nce it is determined that
               the [person] at work is a servant, the master becomes subject to
               vicarious liability for his torts. He may, of course, be liable on the
               basis of any negligence of his own in selecting or dealing with the
               servant.”

       Lim v. Interstate System Steel Div., Inc., 435 N.W.2d 830 (Minn. Ct. App. 1989)

       (internal citations omitted). See also Marquis v. State Farm Fire and Cas. Co., 961

       P.2d 1213 (Kan. 1998) (observing that “negligent entrustment and negligent

       hiring, retention, or supervision are torts distinct from respondeat superior and

       that liability is not imputed but instead runs directly from the employer to the

       person injured”).

[22]   We also observe that the Comparative Fault Act, Indiana Code section 34-51-2-

       1 et seq., was enacted over ten years after our court’s Tindall decision. The

       objective of the Act “was to modify the common law rule of contributory

       negligence under which a plaintiff was barred from recovery where he [or she]

       was only slightly negligent.” See Palmer v. Comprehensive Neurologic Servs., P.C.,

       864 N.E.2d 1093, 1098 (Ind. Ct. App. 2007). Under the Act, “each person

       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 10 of 13
       whose fault contributed to the injury bears his or her proportionate share of the

       total fault contributing to the injury.” Id. See also I.C. 34-51-2-8(b) (establishing

       that in a jury trial, the trial court “shall instruct the jury” to “determine the

       percentage of fault of the claimant, of the defendants, and of any person who is

       a nonparty. . . In assessing percentage of fault, the jury shall consider the fault

       of all persons who caused or contributed to cause the alleged injury, death, or

       damage to property . . . regardless of whether the person was or could have

       been named as a party”).

[23]   In the case before us, Hamblin, Parker, and Bilton were involved in the accident

       that resulted in Hamblin’s death. A jury could find that any one of these three

       parties committed acts that proximately caused the accident at issue. However,

       a jury could additionally find that Pizza Hut negligently hired, retained, or

       supervised Parker, and assign a certain percentage of fault for the accident

       directly to Pizza Hut. Under the Comparative Fault Act, it would be illogical to

       disallow a cause of action that could result in the allocation of additional fault

       to a tortfeasor.


[24]   Furthermore, Section 7.05 of the Third Restatement of Agency provides that

       “[a] principal who conducts an activity through an agent is subject to liability

       for harm to a third party caused by the agent’s conduct if the harm was caused

       by the principal’s negligence in selecting, training, retaining, supervising, or

       otherwise controlling the agent.” See also Restatement (Third) of Agency section

       7.03 (explaining that a principal may also be indirectly liable to a third party

       when its agent commits a tort while acting within the scope of his or her

       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 11 of 13
       employment). “A principal who is vicariously liable may, additionally, be

       subject to liability on the basis of the principal’s own conduct.” Id., cmt.


[25]   Tindall, and its progeny, concluded that the tort of negligent hiring “arises only

       when an agent, servant or employee steps beyond the recognized scope of [her]

       employment to commit a tortious injury upon a third party.” 162 Ind. App. at

       529, 320 N.E.2d at 767-68; see also Clark v. Aris, Inc., 890 N.2d 760, 765 (Ind. Ct.

       App. 2008), trans. denied. However, the Broadstreet Court did not limit the tort of

       negligent hiring and retention to acts committed outside an employee’s scope of

       employment.

[26]   Moreover, in Tindall, the court concluded that its holding might not apply

       where a plaintiff seeks punitive damages. See 162 Ind. App. at 530; 320 N.E.2d

       at 768 (stating the “sole possible advantage to the pursuit of a negligent hiring

       theory in cases such as that before us would be the potential assessment of

       punitive damages). We can conceive of no logical reason for limiting the

       separate cause of action to acts committed outside the scope of employment

       unless a plaintiff demands punitive damages. Consideration of an employer’s

       fault in negligently hiring or retaining an employee who causes a tortious injury

       in the course and scope of her employment results in a fairer allocation and

       calculation of damages under our system of comparative fault.

[27]   Under the doctrine of stare decisis, we are bound by our supreme court’s

       Broadstreet decision. Moreover, allowing the fact-finder consider Pizza Hut’s

       and its employee’s fault, if any, in causing the accident that resulted in


       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 12 of 13
       Hamblin’s death is consistent with our Comparative Fault Act. For all of these

       reasons, we conclude that the trial court erred when it granted summary

       judgment to Pizza Hut on the Estate’s negligent hiring and retention claim.


[28]   Reversed and remanded for proceedings consistent with this opinion.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016   Page 13 of 13
