FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEES:
                                               Attorneys for Seven Corners, Inc.
RYAN K. JOHNSON                                RICHARD R. SKILES
RANDALL L. JUERGENSEN                          JANET M. PRATHER
Keller & Keller, LLP                           Skiles DeTrude
Indianapolis, Indiana                          Indianapolis, Indiana

                                                                      Jul 25 2014, 9:28 am



                             IN THE
                   COURT OF APPEALS OF INDIANA

PHYLLIS DODSON, as Special Administrator of    )
the Estate of EBONI DODSON, Deceased,          )
                                               )
      Appellant-Plaintiff,                     )
                                               )
             vs.                               )     No. 49A04-1305-CT-267
                                               )
CURT D. CARLSON, CARMEL HOTEL                  )
COMPANY, d/b/a GRILLE 39, SEVEN                )
CORNERS, INC., and CARMEL HOTEL,               )
d/b/a RENAISSANCE HOTEL,                       )
                                               )
      Appellees-Defendants.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Theodore M. Sosin, Judge
                           Cause No. 49D02-1009-CT-41815


                                     July 25, 2014

                              OPINION – FOR PUBLICATION

MAY, Judge
       On February 22, 2010, Curt Carlson was driving home from a business meeting

over dinner and drinks at the Renaissance Hotel in Carmel, Indiana. He struck a disabled

vehicle on the side of I-465 and its driver, Eboni Dodson, was killed. Dodson’s estate

(hereinafter “Dodson”) sued Carlson’s employer, Seven Corners, Inc., and others. The

trial court granted summary judgment for Seven Corners1 on the ground there was no

issue of fact as to whether Carlson was acting in the scope of his employment when he hit

Dodson’s car. We affirm.2

                         FACTS AND PROCEDURAL HISTORY3

       Carlson’s meeting began at approximately 5:15 p.m. at the hotel bar. Carlson and

his employer, Jim Krampen, typically conducted business meetings at the hotel, and there

were other occasions when meetings involved dinner and drinks. Carlson had four beers

while discussing business with Krampen, who owned Seven Corners, and a client.

Carlson was not “required” as a part of his employment to be at the business meeting, but

this was a “natural part of [his] employment.” (Appellant’s App. at 37.) The meeting

carried over into dinner, at which Carlson had two glasses of wine. Carlson was made

“point man on [the] business deal.” (Id. at 44). Krampen bought the alcohol. Carlson

1
  Carlson and the hotel are also named defendants, but the summary judgment now being appealed
addressed only Seven Corners.
2
  As we affirm summary judgment for Seven Corners, we do not address whether Dodson was entitled to
punitive damages.
3
  We heard oral argument on June 19, 2014, at Trine University, Angola Indiana, before participants in
Hoosier Boys State. We thank Hoosier Boys State and Trine University for their hospitality, and
commend counsel on the quality of their oral advocacy.


                                                  2
left the hotel to drive home and the accident occurred a few minutes later. Carlson was

arrested on suspicion of operating a vehicle while intoxicated after he registered .12 on an

alcohol breath test machine.

       Dodson brought a wrongful death and negligence action against Carlson, the hotel,

and Seven Corners. Dodson alleged Seven Corners was liable for Carlson’s actions under

a theory of respondeat superior. The trial court entered summary judgment for Seven

Corners, noting “It is assumed from the case citations of the parties that Indiana case law

has not addressed a circumstance involving an employee consuming alcohol within the

course of scope of [sic] employment, and then immediately engaging in a non-

employment related activity, such as driving home.” (Id. at 12–13.)

                            DISCUSSION AND DECISION

       If pleadings, depositions, answers to interrogatories, admissions on file, and

testimony show there is no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law, a motion for summary judgment will be

granted. Bell v. Northside Fin. Corp., 452 N.E.2d 951, 953 (Ind. 1983). The motion

should be resolved in favor of the party opposing it if there is any doubt as to the

existence of a material factual issue. Id. The contents of all pleadings, affidavits, and

testimony are liberally construed in the light most favorable to the non-moving party. Id.

Summary judgment is not an appropriate vehicle for the resolution of questions of

credibility or weight of the evidence, nor is it appropriate when conflicting inferences

may be drawn from undisputed facts. Id.

                                             3
       The standard by which we review a summary judgment is well-established.

While the party losing in the trial court must persuade us the decision was erroneous, we

face the same issues as did the trial court and analyze them in the same way. Butler v.

City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). We carefully scrutinize a

summary judgment to assure the losing party is not improperly prevented from having its

day in court. Id.

       An employer may have vicarious liability under the doctrine of respondeat

superior when an employee inflicts harm while acting within the scope of the

employment. Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). To be within the scope

of employment, “the injurious act must be incidental to the conduct authorized or it must,

to an appreciable extent, further the employer’s business.” Id. The facts need not show

that the acts of the employee were motivated solely or predominately by the desire to

serve the employer; an employee may be within the scope of his employment where his

conduct “is motivated to any appreciable extent by the purpose to serve the [employer].”

Gibbs v. Miller, 152 Ind. App. 326, 330, 283 N.E.2d 592, 595 (1972).

       Carlson was not acting in the scope of his employment at the time of the accident.

The doctrine of respondeat superior is limited by the “going and coming” rule: “an

employee on his way to work is normally not in the employment of the corporation.”

Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617, 618 (1959). In Biel, Ethel Biel was

president of Biel, Inc. She was in the habit of taking an automobile belonging to the

corporation home at night and driving it back to work each morning. One morning as she

                                            4
was returning to work she hit a motorcyclist. The action was dismissed as to Ethel Biel

and maintained only against Biel, Inc.

       Our Supreme Court said:

       An essential part of the proof necessary to hold the appellant corporation
       liable was that Ethel H. Biel, at the time and place of the accident, was the
       appellant’s corporate agent, acting within the scope of her employment and
       authority for and on behalf of the corporation as her principal; otherwise no
       negligence may be imputed to the appellant corporation.


Id. at 70, 161 N.E.2d at 618 (emphasis added). Relying on the emphasized passage

above, Seven Corners asserts it is “uncontroverted that Carlson was entirely on personal

time when the accident occurred.” (Br. of Appellee, Seven Corners, Inc. at 5.)

       Seven Corners also points to Dillman v. Great Dane Trailers, Inc., 649 N.E.2d

665, 668 (Ind. Ct. App. 1995), where we affirmed summary judgment for the employer.

The employee, Welliever, was driving to a Great Dane sports banquet. He was Great

Dane’s Employee Relations Supervisor, and his job was to coordinate and be present at

such functions. Welliever was to be the master of ceremonies. He was subject to

disciplinary action if he did not attend any social activity. We determined Welliever was

driving to work when the accident occurred and not acting in the scope of his

employment. Id.

       Whether an employee was acting within the scope of his employment is a question

of fact for the jury only if there are conflicting facts, or conflicting inferences to be drawn

from the facts, regarding why the motorist was on the road at the time of the accident. Id.

at 668. The trial court noted the decisions on which Dillman relied:
                                             5
      all involve a mixed trip or a mixed activity where part of the trip may be said
      to serve the employee and part of the purpose of the trip may have been said to
      have furthered the interest of the employer. In those cases of mixed elements
      clearly the case should go to the jury because of the question of fact
      considering the purpose of the trip and whether or not the employee was acting
      within the scope of his employment at the time. Here, there was nothing about
      the furthering of Great Dane’s interest that required Welliever to make this trip
      other than the normal and usual going to work.

Id.

       Dillman also argued the use of the word “normally” in Biel suggested that whether

an employee is acting within the scope of his employment when travelling to work is a

question of fact. We disagreed:

       The use of the qualifying word “normally” merely allows for an exception
       to the general rule for those instances where the employee is not just going
       to work, but also performing an errand for or otherwise providing some
       service or benefit to the company, other than merely showing up for work.

Id. (emphasis in original.)

       That Carlson’s drinking before he drove home might have been in some way work-

related does not render inapplicable the “going and coming” rule. In Cunningham v.

Petrilla, 817 N.Y.S.2d 468, 469 (App. Div. 2006), the court noted the general rule that an

employee driving to and from work is not acting in the scope of his employment.

Cunningham was completing his construction shift on a highway when he was struck by a

car Petrilla was driving home from her employment at a bar. Cunningham pointed to

evidence the bar encouraged its employees to drink alcohol with customers to help

“promote social good will and business for the bar,” id., and he argued it was foreseeable

that an employee might become impaired in her ability to safely operate her automobile

                                             6
on leaving the bar.

       The court noted Petrilla was not acting in furtherance of any duty she owed the

bar, nor did the bar exercise any control over her activities. Id. “Even assuming,

arguendo, that the Pub encouraged the consumption of alcohol by its employees, we

conclude that Petrilla was on a strictly personal venture and thus as a matter of law was

not acting within the scope of her employment at the time of the accident.” Id.

       In Bell v. Hurstell, 743 So.2d 720, 721 (La. Ct. App. 1999), writ denied, 748 So.2d

1165 (La. 1999), Hurstell was involved with tour groups and events. She did networking

after hours in furtherance of her employer’s objectives. At the end of one business day

she met at her office with Andrew Messina, with whom Hurstell’s employer had a

business relationship. After the meeting was concluded, Messina drove Hurstell to a

lounge where she consumed alcohol Messina bought her. He then drove her to a party

given by another company with which Hurstell’s employer had a business relationship.

There she had one or more drinks. At approximately 11:00 p.m., Hurstell decided to go

home. As she was driving home she collided with the Bells’ parked car.

       The Bells argued Hurstell’s intoxication occurred in the course and scope of her

employment. The court said:

       According to this theory, any damages to which this intoxication could have
       a causal relationship could be said to arise in the course and scope of her
       employment, in spite of the fact that Hurstell was no longer acting in the
       course and scope of her employment at the time she caused the damage.

Id. The court noted there was no evidence Hurstell was forced to consume alcohol by her

employer, either by means of physical threats or by threats of demotion or loss of
                                        7
employment.      Nothing prevented Hurstell from ordering non-alcoholic beverages.

Hurstell’s employer did not furnish or serve the alcohol:

       We can see no public policy in holding an employer liable for damage
       caused by an employee on the way home from work just because that
       employee may have consumed alcohol as a matter of personal choice while
       entertaining clients off premises after hours. . . . In other words, the
       consumption of alcohol does not expand the definition of course and scope
       of employment. To put it another way, an accident that would not normally
       be considered as occurring during the course and scope of employment, will
       not be considered as occurring during the course and scope of employment
       merely because alcohol, which may have contributed to the accident, was
       consumed (but not required to be consumed as a condition of employment)
       while the employee-tortfeasor was acting in the course and scope of
       employment.

Id. at 721-22.

       We acknowledge Indiana decisions to which Dodson directs us that have found an

employee may be acting in the scope of his or her employment while driving. In Gibbs v.

Miller, Gibbs, a commission salesman, was not scheduled to work in the store but he had

made several appointments to see prospective customers. One involved a sale from

which Gibbs received a commission. He received a mileage reimbursement. While

enroute to his home for lunch Gibbs hit a car driven by Miller.

       Gibbs was within the scope of his employment:

       Gibbs was engaged in a task incidental to his everyday employment, that is,
       calling on a prospective customer. In fact the sale was completed and
       Gibbs received the commission therefrom. At the time of the accident
       Gibbs was returning from this appointment. He was carrying samples and
       supplies furnished by Sears and had the sales contract in his possession. He
       had other appointments scheduled later in the day, and he telephoned Sears
       immediately after the collision to cancel these appointments. He was within
       Sears’ area of distribution and was exercising the discretion allowed him by
       Sears in choosing the routes to take and times for scheduling his
                                             8
       appointments. He testified that he often did paper work at home. He also
       testified that he was reimbursed for his mileage both to and from Elkhart.

152 Ind. App. at 330-31, 283 N.E.2d at 595.

       Gibbs is distinguishable, as there is no evidence in the case before us that Dodson

was, at the time of the accident, in any way “engaged in a task incidental to his everyday

employment.” Id. Rather, he had completed all tasks incidental to his employment and

was going home. Nor do we find controlling decisions such as Gullett by Gullett v.

Smith, 637 N.E.2d 172, 175 (Ind. Ct. App. 1994), trans. denied, and State v. Gibbs, 166

Ind. App. 387, 392, 336 N.E.2d 703, 705 (1975), where the employees were on call

twenty-four hours per day and using employer-provided vehicles. In such cases, “the trier

of fact could find or infer that it was essential that [the employee] have the use of the car

since his duties entailed considerable driving and he was on call 24 hours a day.” Id. at

391-92, 336 N.E.2d at 705.

       As there was no designated evidence that would suggest Carlson was outside the

“going and coming” rule, the trial court properly entered summary judgment for Seven

Corners, and we accordingly affirm.

       Affirmed.

BAKER, .J., and BRADFORD, J., concur.




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