                                                                              FILED
                                                                         Dec 09 2016, 8:44 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE,
      D. Michael Allen                                          IDEAL HEATING AIR
      Jared S. Sunday                                           CONDITIONING AND
      Mallor Grodner LLP                                        REFRIGERATION, INC.
      Bloomington, Indiana                                      Jon K. Stowell
                                                                The Cincinnati Insurance
                                                                Company
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Thomas Hudgins and Sheila                                 December 9, 2016
      Hudgins,                                                  Court of Appeals Case No.
      Appellants-Plaintiffs,                                    49A02-1505-CT-384
                                                                Appeal from the Marion Superior
              v.                                                Court
                                                                The Honorable Michael D. Keele,
      Brian Bemish, Ideal Heating Air                           Judge
      Conditioning and Refrigeration,                           Trial Court Cause No.
      Inc.,                                                     49D07-1309-CF-35631
      Appellees-Defendants.




      Pyle, Judge.


                                        Statement of the Case
[1]   Appellants-Plaintiffs, Thomas Hudgins (“Hudgins”) and Sheila Hudgins

      (“Sheila”) (collectively, “the Hudginses”), appeal the trial court’s grant of
      Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016                  Page 1 of 24
      summary judgment to Appellee-Defendant, Ideal Heating Air Conditioning and

      Refrigeration, Inc. (“Ideal”), who was the employer of Brian Bemish

      (“Bemish”).1 This case originates from the Hudginses’ complaint, alleging

      negligence, loss of consortium, and property damage based on a collision that

      occurred when Bemish drove his Ideal work vehicle into a line of vehicles

      stopped at a traffic light. The Hudginses alleged that Ideal was vicariously

      liable under respondeat superior and liable based on negligent hiring and

      retention under Restatement (Second) of Torts § 317.


[2]   The Hudginses argue that the trial court erred by granting summary judgment

      in favor of Ideal because there remain genuine issues of material fact regarding

      their claims against Ideal. We conclude that, based on the evidence designated

      to the trial court, there are conflicting facts or conflicting inferences that can be

      drawn as to whether Bemish was acting in the scope of his employment with

      Ideal at the time of the accident. Additionally, we conclude that Ideal has not

      met its initial burden on its motion for summary judgment on the Hudginses’

      negligent hiring and retention claim because it has not demonstrated the

      absence of a genuine issue of material fact regarding that claim and, instead,

      has merely alleged that the Hudginses have failed to present evidence showing

      that Ideal was liable under this claim. Accordingly, we reverse the trial court’s

      judgment and remand for further proceedings.




      1
       Ideal moved for summary judgment on its own behalf. Bemish is not part of this appeal. However, because
      Bemish was a party below, he is also listed as a party on appeal. See Ind. App. R. 17(A).

      Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016                  Page 2 of 24
[3]   We reverse and remand.


                                                      Issue
              Whether the trial court erred by granting Ideal’s motion for
              summary judgment.

                                                      Facts
[4]   The facts most favorable to the Hudginses, the non-moving party in this

      summary judgment, are set forth herein.


[5]   In 2011, Bemish was an employee of Ideal and worked as an installer. As part

      of Bemish’s employment, Ideal supplied Bemish with a company truck (“the

      Ideal Truck”). Ideal’s written policy on company vehicles contained in its

      Employee Handbook provided, in relevant part, that Ideal’s “[v]ehicles are to

      be used solely for work related business.” (App. 117). The company vehicle

      policy also provided that “[d]uring non-working hours, company vehicles may

      be driven home and kept on the employee[’]s property or be returned to the

      shop at the end of the day.” (App. 117). Bemish drove his Ideal Truck home

      every day and stored it at his premises. Ideal paid for maintenance and gas for

      company-issued vehicles.


[6]   Ideal required Bemish to sign a “Vehicle Usage Policy,” which included a list of

      “requirements[.]” (App. 96). In relevant part, the Vehicle Usage Policy

      provided that “[t]he employee [wa]s not to use the company vehicle for any

      personal use” and that “[t]he employee [wa]s to use the company vehicle . . .




      Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 3 of 24
      solely for company business of Ideal Heating A/C & Refrigeration Inc.” (App.

      96). Bemish used the Ideal Truck to haul materials and tools to job sites.


[7]   On September 21, 2011, Bemish was assigned to work a project for Ideal at a

      job site in Valparaiso, Indiana. That morning, he drove the Ideal Truck and

      picked up his foreman, Adam Ramser (“Ramser”), at his house in Indianapolis.

      Bemish and Ramser had previously loaded the Ideal Truck with equipment at

      the Ideal shop. Bemish drove to the job site in Valparaiso, where he and

      Ramser performed work for Ideal over the next few days.


[8]   On September 23, 2011, Bemish and Ramser worked for a few hours at the job

      site in Valparaiso. Bemish then drove the pair back to Indianapolis in the Ideal

      Truck. Upon arriving in Indianapolis around 3:00 p.m., Bemish dropped

      Ramser off at his house near 34th Street and Georgetown Road and stayed for a

      few minutes. Thereafter, Bemish, while driving the Ideal Truck near 16th Street

      and Georgetown Road, collided with a line of vehicles stopped at a traffic light

      (“the Collision”). The impact from the Ideal Truck caused a chain reaction

      collision that included Hudgins, who was riding his motorcycle. Hudgins was

      injured in the Collision. At the time of the accident, Bemish had several ladders

      on the Ideal Truck, and one of these ladders, which had Ideal’s name on it, fell

      onto the road at the site of the Collision.


[9]   Bemish fled the scene of the Collision in the Ideal Truck, drove another few

      blocks, and was involved in a second collision near 16th Street and Lynhurst

      Drive when he struck another vehicle stopped at a traffic light (“the second


      Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 4 of 24
       collision”). After Speedway Police officers arrived on the scene of the second

       collision, they removed Bemish from the Ideal Truck and noticed that he

       appeared dazed and had difficulty keeping his eyes open. Bemish admitted to

       the officers that, earlier that day, he had smoked the synthetic drug, spice, on

       the side of the road near 34th Street and Georgetown Road. The officers

       arrested Bemish. Thereafter, Ideal terminated his employment.


[10]   On September 20, 2013, the Hudginses filed a complaint against Bemish and

       Ideal and raised claims of negligence, loss of consortium, and property damage.

       The Hudginses alleged that Bemish was negligent in causing the Collision that

       resulted in Hudgins’ injuries. In their negligence claim against Ideal, the

       Hudginses alleged that Ideal was liable for Bemish’s acts based on: (1) the

       theory of respondeat superior, which can impose liability on an employer when

       the employee has inflicted harm while acting within the scope of employment;

       and (2) negligent hiring and training under the Restatement (Second) of Torts §

       317 (“Restatement § 317”), which can impose liability on an employer for acts

       of an employee acting outside the scope of employment when certain

       circumstances are met.2


[11]   In July 2014, Ideal moved for summary judgment. Ideal’s designated evidence

       consisted of the Hudginses’ complaint and an affidavit from Ideal’s President,

       David Gooderum (“Gooderum”). In his affidavit, Gooderum acknowledged



       2
        The Hudgins also alleged that Ideal was liable under a theory of negligent entrustment of a vehicle. Neither
       party mentions or discusses this theory on appeal.

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016                       Page 5 of 24
       that Bemish was an employee of Ideal at the time of the Collision and that Ideal

       had given Bemish permission to drive the Ideal Truck to his house. Gooderum,

       however, averred that, at the time of the Collision, Bemish “was driving the

       company vehicle on his commute home after ending his work shift for Ideal”

       and that he “was not performing any task or activity relating to his employment

       for Ideal Heating while driving the company vehicle home.” (App. 34-35).

       Relying on the averments in Gooderum’s affidavit, Ideal argued that it was

       entitled to summary judgment under the respondeat superior theory of liability

       because the facts were “undisputed” that Bemish was not acting within the

       scope of his employment. (App. 22).


[12]   Ideal also asserted that summary judgment should be granted with respect to

       the Hudginses’ negligent hiring/retention claim. Ideal acknowledged that

       Restatement § 317 imposes a duty on an employer to exercise reasonable care

       to control an employee acting outside the scope of employment under certain

       circumstances, but it asserted that it “had no actual or constructive knowledge

       of any information which would show a propensity of Bemish to commit the

       tortious acts which led to this suit.” (App. 22). Ideal did not designate any

       specific evidence to support its assertion.


[13]   Ideal also argued, in regard to this Restatement § 317 claim, that the trial court

       should consider the relationship between the parties, the reasonable

       foreseeability of harm to Hudgins as the victim, and public policy concerns to

       determine whether a duty of care even arose. It contended that, given these

       considerations, it “had no duty to the plaintiffs because they were not patrons of

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 6 of 24
       Ideal Heating and because Ideal Heating could not have foreseen the harm.”

       (App. 24).


[14]   In their summary judgment response, the Hudginses argued that Ideal’s motion

       for summary judgment was inappropriate because: (1) Bemish had not yet

       responded to their discovery requests; (2) there were issues of material fact

       regarding whether Bemish was acting within the scope of his employment at the

       time of the Collision; (3) Indiana had adopted the Restatement § 317, which,

       under certain conditions, imposed a duty on an employer when an employee

       was using an employer’s chattel or vehicle outside the scope of his employment;

       and (4) Ideal had a duty to Hudgins because the danger posed to drivers by a

       driver under the influence of drugs, such as Bemish, was foreseeable to Ideal.


[15]   The Hudginses first argued that the trial court should deny Ideal’s summary

       judgment motion because “[t]he Indiana Supreme Court ha[d] recognized that

       it is generally improper for a court to grant summary judgment while reasonable

       discovery requests that bear on issues material to the motion are still pending.”

       (App. 39). The Hudginses designated evidence to show that they had served

       interrogatories on Bemish on March 6, 2014, but they had not yet received his

       response as of the date of their summary judgment response filing, which was

       September 5, 2014. They also pointed to an interrogatory question that

       specifically asked Bemish whether he was doing work-related activity at the

       time of the collision.




       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 7 of 24
[16]   Additionally, in regard to Ideal’s respondeat superior argument, the Hudginses

       argued that Ideal’s “self-serving affidavit” claiming that Bemish was not acting

       within the scope of his employment with Ideal conflicted with Ideal’s Employee

       Handbook and its Vehicle Usage Policy, both of which indicated that the Ideal

       Truck was to be used for company purposes only.3 (App. 45). The Employee

       Handbook also showed that installers such as Bemish used company vehicles to

       haul tools to various worksites. The Hudginses also designated Ideal’s

       Employee Handbook to show that Ideal’s work hours were Monday through

       Friday, 7:00 a.m. or 7:30 a.m. to 3:30 p.m. or 4:00 p.m., which meant that the

       Collision which occurred around 3:07 p.m., was within established work hours.

       The Employee Handbook also provided that an employee could be paid for

       travel time outside of Marion County (“Whether or not travel time [wa]s to be

       paid w[ould] be determined by the project manager on a job-to-job basis.”) and

       for fuel used when working on a job site outside of Marion County (“Fuel

       required for transportation from the Marion county line to job assignments

       outside of Marion County will be reimbursed by the company.”) (App. 118,

       119). Additionally, the Hudginses designated the police report from the

       Collision and the second collision, which showed that Bemish was hauling

       Ideal’s ladders at the time of the Collision. Thus, the Hudginses argued that

       there were genuine issues of material fact regarding whether Bemish was acting

       within the scope of his employment at the time of the Collision.




       3
           The Hudgins designated both of these documents as evidence, among other documents.


       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016               Page 8 of 24
[17]   The Hudginses also argued that Ideal was not entitled to summary judgment on

       their negligent hiring/retention claim because Ideal had not demonstrated the

       absence of a material fact on that specific claim. The Hudginses argued that the

       trial court should reject Ideal’s lack of duty argument because it “c[ould] not

       seriously be argued that the danger to other drivers posed by an intoxicated

       employee driving a company-owned vehicle was unforeseeable to Ideal.” (App.

       48).


[18]   Thereafter, Ideal filed a reply to the Hudginses’ summary judgment response.

       Ideal argued that Bemish’s lack of response to the Hudginses’ interrogatories

       should not preclude the trial court from entering summary judgment in Ideal’s

       favor because there was no genuine issue of material fact regarding whether

       Bemish was acting within the scope of his employment. As supplemental

       designated evidence, Ideal attached a copy of Bemish’s deposition taken in

       another lawsuit filed against Bemish and Ideal by one of the other motorists

       who had been injured in the Collision. Ideal asserted that Bemish’s deposition

       testimony from this other case would “negate[]” the Hudginses’ “hope” that

       Bemish’s interrogatory answers would “counter the affidavit of [Ideal’s

       President] David Gooderum.” (App. 126).


[19]   Ideal acknowledged that Bemish had testified in his deposition that he

       understood that he was acting within the course and scope of his employment

       when he dropped Ramser off at his house and was driving home. Ideal,

       however, argued that Bemish’s deposition—in which he testified that he

       understood that he was to use the Ideal Truck for “[b]usiness use only” and

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 9 of 24
       testified that, at the time of the Collision, he intended to “go home” and park

       the Ideal Truck at his house until he went to work on Monday—“provide[d]

       support for Ideal Heating’s argument that [Bemish] was acting outside the

       scope of his employment at the time of the accident.” (App. 128). Ideal

       contended that the deposition showed that Bemish was “solely commuting

       home from work,” which, it asserted, was an act that “Indiana courts have

       continuously held is outside the scope of employment.” (App. 128) (citing

       Dodson v. Carlson, 14 N.E.3d 781, 783-84 (Ind. Ct. App. 2014), trans. denied).

       Ideal acknowledged that there was an exception to this rule, but argued that the

       Hudginses had “failed to point to any evidence to contradict Ideal Heating’s

       conclusion that Bemish’s acts fell outside the scope of employment.” (App.

       131) (upper case changed to lower case). Finally, Ideal attempted to counter

       the Hudginses’ designated evidence regarding the fact that the Collision had

       occurred during Ideal’s set work hours by pointing to Bemish’s pay records that

       were attached to his deposition. Ideal contended that Bemish’s deposition

       testimony and his pay records showed that he was paid on an hourly basis and

       had not received compensation for the time period when the Collision had

       occurred.


[20]   In regard to the Hudginses’ negligent hiring/retention claim under Restatement

       § 317, Ideal argued that it was not liable because the Hudginses had failed to

       present any evidence to support such a claim. Ideal also argued that it was not

       liable because Bemish’s actions and the harm caused by him were not

       foreseeable.


       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 10 of 24
[21]   Subsequently, the Hudginses filed a summary judgment surreply to address

       Ideal’s two additional items of designated evidence that it had included in its

       reply. The Hudginses also requested a continuance so that they could depose

       Ramser. They contended that the deposition was necessary to address the

       newly designated evidence introduced by Ideal.4 The Hudginses argued that

       Bemish’s deposition, which Ideal had designated as additional evidence, merely

       provided further support for the Hudginses’ argument regarding the existence of

       disputed material facts because Bemish had testified that he believed that he

       was acting within the scope of his employment with Ideal at the time of the

       Collision. The Hudginses also argued that Bemish was not merely going home,

       but he was returning from an out-of-county job site, which Ideal’s company

       policies treated differently than a mere commute home. The Hudginses

       asserted that Gooderum’s affidavit averments were “insufficient to conclusively

       show that Defendant Bemish was not acting within the course and scope of his

       employment.” (App. 162).


[22]   The parties agreed that the Hudginses should be allowed to depose Ramser.

       Following that deposition, the Hudginses filed a supplemental brief in support

       of their opposition to Ideal’s summary judgment motion and designated

       Ramser’s deposition as further evidence. The Hudginses contended that




       4
        Specifically, the Hudgins wanted to depose Ramser because Ideal had not previously identified Ramser as
       someone with knowledge of the incident. Additionally, the Hudgins had learned for the first time from
       Bemish’s deposition that Ramser was with Bemish immediately before the Collision and that Ramser had
       provided Bemish with the synthetic drug, spice, two days before the Collision.

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016                   Page 11 of 24
       Bemish’s act of driving partially benefitted Ideal and that there was a question

       of fact regarding whether Bemish was acting within the scope of his

       employment and that this question should be decided by a jury. The Hudginses

       also argued that Ideal was not entitled to summary judgment on their

       Restatement § 317 claim because Ideal knew of the necessity and opportunity to

       exercise control over an employee’s use of drugs and alcohol and that Ideal had

       done so by including policies in its Employee Handbook that prohibited such

       use when driving a company vehicle or while on company business.


[23]   In reply to the Hudginses’ supplemental brief, Ideal filed another memorandum

       in support of its summary judgment motion. Ideal argued that it did not receive

       any benefit from Bemish driving home or transporting Ramser to and from the

       job site. It contended that Bemish had already completed his work-related tasks

       and was merely driving home at the time of the Collision, thereby taking his

       actions outside the scope of his employment.


[24]   The trial court held a summary judgment hearing on April 17, 2015.

       Thereafter, the trial court issued an order in which it summarily granted Ideal’s

       summary judgment motion and entered judgment as a final judgment. The

       Hudginses now appeal.5




       5
           While this appeal was pending, the Hudgins and Ideal engaged in appellate mediation.


       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016                 Page 12 of 24
                                                    Decision
[25]   The Hudginses argue that the trial court erred by granting summary judgment

       to Ideal.


[26]   Our standard of review for summary judgment cases is well settled. When we

       review a trial court’s grant of a motion for summary judgment, our standard of

       review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45

       N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the

       moving party has shown that there is no genuine issue of material fact and it is

       entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003

       (Ind. 2014). “Indiana’s distinctive summary judgment standard imposes a

       heavy factual burden on the movant to demonstrate the absence of any genuine

       issue of material fact on at least one element of the [non-movant’s] claim.”

       Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016) (citing

       Hughley, 15 N.E.3d at 1003). Unlike federal practice, in Indiana, a moving

       party is not entitled to summary judgment where it merely asserts that the

       opposing party lacks evidence on an element to prove its claim. Hughley, 15

       N.E.3d at 1003. Instead, our Courts “impose a more onerous burden” and

       require a moving party “to affirmatively ‘negate an opponent’s claim.’” Id.

       (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123

       (Ind. 1994)). Only after the moving party carries its burden is the non-moving

       party then required to present evidence establishing the existence of a genuine

       issue of material fact. Knighten, 45 N.E.3d at 791.



       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 13 of 24
[27]   “In deciding whether summary judgment is proper, we consider only the

       evidence the parties specifically designated to the trial court.” Knighten, 45

       N.E.3d at 791 (citing Ind. Trial Rule 56(C), (H)). Additionally, “[w]e construe

       all factual inferences in favor of the non-moving party and resolve all doubts

       regarding the existence of a material issue against the moving party.” Id. We

       must carefully review a decision on summary judgment to ensure a party is not

       improperly denied his day in court. Mangold ex rel. Mangold v. Ind. Dep’t of

       Natural Res., 756 N.E.2d 970, 974 (Ind. 2001). “Summary judgment is a lethal

       weapon and courts must be mindful of its aims and targets and beware of over-

       kill in its use.” Southport Little League v. Vaughan, 734 N.E.2d 261, 269 (Ind. Ct.

       App. 2000), trans. denied. Indeed, “Indiana consciously errs on the side of

       letting marginal cases proceed to trial on the merits, rather than risk short-

       circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.


[28]   Here, the Hudginses filed their complaint against Ideal and argued that Ideal, as

       employer of Bemish, was liable to the Hudginses for Bemish’s negligent act of

       injuring Hudgins during the Collision. The Hudginses’ negligence claim

       against Ideal was premised on the theories of: (1) respondeat superior; and (2)

       negligent hiring/retention under Restatement § 317.


[29]   When Ideal filed its motion for summary judgment, it set forth two arguments

       as to why it believed that it was not liable to the Hudginses. The trial court

       granted summary judgment to Ideal by entering a general judgment and did not

       enter any specific findings. Thus, the trial court apparently entered summary

       judgment based on Ideals’ arguments.

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 14 of 24
[30]   On appeal, the Hudginses argue that the trial court’s general judgment granting

       Ideal’s motion for summary judgment cannot be affirmed because neither of

       Ideal’s arguments support a grant of summary judgment in Ideal’s favor.

       Specifically, the Hudginses argue that: (1) there are genuine issues of material

       fact regarding whether Bemish was acting within the scope of his employment

       at the time of the Collision that preclude the entry of summary judgment; and

       (2) Ideal did not demonstrate the absence of a material fact on the Hudginses’

       claim under Restatement § 317. We will review each argument in turn.


       1. Respondeat Superior – Acting within Scope of Employment

[31]   The Hudginses argue that the trial court erred by granting summary judgment

       to Ideal on their respondeat superior claim because “factual issues . . . remain

       concerning whether Bemish was acting in the scope of his employment at the

       time of the . . . Collision.” (The Hudginses’ Br. 8). Specifically, the Hudginses

       contend that the trial court erred by determining that Bemish’s act of driving the

       Ideal Truck at the time of the Collision was outside the scope of his

       employment and that, therefore, Ideal was not vicariously liable for Bemish’s

       actions.


[32]   “Respondeat superior is the applicable tort theory of vicarious liability.” Sword

       v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999). “Under respondeat

       superior, an employer, who is not liable because of his own acts, can be held

       liable ‘for the wrongful acts of his employee [that] are committed within the

       scope of employment.’” Id. (quoting Stropes v. Heritage House Childrens Ctr., 547



       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 15 of 24
       N.E.2d 244, 247 (Ind. 1989), reh’g denied). Our Indiana Supreme Court has

       explained that:

               [I]n order for an employee’s act to fall “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. Celebration Fireworks, Inc. v. Smith, 727
               N.E.2d 450, 453 (Ind. 2000). This Court has observed, “an
               employee’s act is not within the scope of employment when it
               occurs within an independent course of conduct not intended by
               the employee to serve any purpose of the employer.” Barnett v.
               Clark, 889 N.E.2d 281, 284 (Ind. 2008) (emphasis omitted)
               (quoting Restatement (Third) of Agency § 7.07(2) (Am. Law Inst.
               2006)). Nonetheless, “an employee’s wrongful act may still fall
               within the scope of his employment if his purpose was, to an
               appreciable extent, to further his employer’s business, even if the
               act was predominantly motivated by an intention to benefit the
               employee himself.” Barnett, 889 N.E.2d at 284 (quoting Stropes,
               547 N.E.2d at 247).

       Knighten, 45 N.E.3d at 791-92 (footnote omitted). “[I]t is well established that

       whether an employee’s actions were within the scope of employment is a

       question of fact to be determined by the factfinder.” Id. at 794 (citation and

       internal quotation marks omitted). See also Gullett by Gullett v. Smith, 637

       N.E.2d 172, 174 (Ind. Ct. App. 1994), trans. denied; State v. Gibbs, 336 N.E.2d

       703, 705 (Ind. Ct. App. 1975).


[33]   Our supreme court has held that “an employee on his way to work is normally

       not in the employment of the corporation.” Biel, Inc. v. Kirsch, 161 N.E.2d 617,

       618 (Ind. 1959) (emphasis added). See also Dodson v. Carlson, 14 N.E.3d 781,

       783 (Ind. Ct. App. 2014) (referring to this general rule in Biel as the “going and

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 16 of 24
       coming” rule and applying the rule to an employee driving home), trans. denied.

       However, our Court has explained that “[t]he use of the qualifying word

       ‘normally’ [in Biel] 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.” Dillman v. Great Dane Trailers, Inc., 649 N.E.2d

       665, 668 (Ind. Ct. App. 1995) (emphasis in original). Thus, “[t]he critical

       inquiry is . . . whether the employee is in the service of the employer.” Warner

       Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997). “Even

       though an employee violates the employer’s rules, orders, or instructions, or

       engages in expressly forbidden actions, an employer may be held accountable

       for the wrongful act if the employee was acting within the scope of

       employment.” Id.


[34]   “To obtain summary judgment in Indiana, a moving party must demonstrate

       the absence of any genuine issue of material fact on at least one element of the

       opposing party’s claim.” Siner, 51 N.E.3d at 1185-86. Because Ideal moved for

       summary judgment, it had the burden of “affirmatively negating” at least one

       element of the Hudginses’ respondeat superior claim. See Id. at 1188.


[35]   On summary judgment, Ideal set forth to negate the element regarding whether

       Bemish was acting within the scope of employment. In order for Ideal to have

       summary judgment granted in its favor, it was required to designate evidence

       demonstrating that this element of the Hudginses’ respondeat superior claim

       was not satisfied. See Jarboe, 644 N.E.2d at 123. Relying on the “going and

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 17 of 24
       coming” rule in Biel, Ideal argued that it was “undisputed” that Bemish was not

       acting within the scope of his employment at the time of the Collision because

       he was driving the Ideal Truck to his home and was not performing an activity

       or service to benefit Ideal. (App. 22). To support this assertion, Ideal

       designated, among other evidence, the affidavit of its president, Bemish’s

       deposition taken in another negligence cause, and Ideals’ Employee Handbook.

       Ideal contends that its designated evidence satisfied its initial summary

       judgment burden, arguing that this designated evidence affirmatively showed

       that Bemish was not acting within the scope of his employment at the time of

       the Collision. We disagree.


[36]   While Gooderum’s affidavit averred that, at the time of the Collision, Bemish

       was “commut[ing] home after ending his work shift” and “was not performing

       any task or activity relating to his employment for Ideal[,]” Ideal’s other

       designated evidence conflicted with that averment. (App. 34, 35). Specifically,

       Bemish’s deposition contains testimony that he believed that he was acting

       within the scope of his employment when he caused the Collision that injured

       Hudgins. In his deposition, he also testified that he used the Ideal Truck to

       haul materials and that his driving of the Ideal Truck was for business use only.

       Additionally, Ideal’s Employee Handbook provides that company vehicles,

       such as the Ideal Truck, were to be used “solely for work related business.”

       (App. 223). The Employee Handbook also revealed that employees, such as

       Bemish, who were given a company vehicle were required to either drive the




       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 18 of 24
       company vehicle to their home and keep it on their property or to return it to

       the shop. (App. 233).


[37]   Considering the facts most favorable to the Hudginses, along with all

       reasonable inferences therefrom, we conclude the trial court erred in granting

       Ideal’s motion for summary judgment. Because Ideal’s own designated

       evidence is conflicting and establishes that there is a genuine issue of fact

       regarding whether Bemish was performing an activity or service to benefit

       Ideal, it did not meet its burden of affirmatively negating the acting within the

       scope of his employment element of the Hudginses’ respondeat superior claim.

       See, e.g., Siner, 51 N.E.3d at 1189 (reversing the trial court’s grant of summary

       judgment to the defendants where their “own designated evidence establishe[d]

       a genuine issue of material fact” and, thereby, failed to meet their summary

       judgment burden of affirmatively negating an element of the plaintiff’s claim)

       (emphasis in original).


[38]   Given the existing question of fact regarding whether Bemish’s act of driving

       the Ideal Truck at the time of the Collision was within the scope of his

       employment, we reverse the trial court’s grant of summary judgment on the

       Hudginses’ respondeat superior claim and remand for further proceedings. See

       Knighten, 45 N.E.3d at 794 (reversing the trial court’s grant of summary

       judgment on the plaintiff’s respondeat superior claim because there were

       questions of fact regarding whether the employee’s actions were within the

       scope of employment); Gullett, 637 N.E.2d at 175 (reversing the trial court’s

       grant of summary judgment to the employer because there was a genuine issue

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 19 of 24
       of fact regarding whether the employee was acting within the scope of his

       employment); Sony DADC U.S. Inc. v. Thompson, 56 N.E.3d 1171, 1180 (Ind. Ct.

       App. 2016) (reversing the trial court’s grant of summary judgment where there

       was a genuine issues of material fact as to whether the employee was acting in

       the scope of his employment at the time of the accident), trans. denied. See also

       Dillman, 649 N.E.2d at 668 (explaining that “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, then the scope of employment

       determination falls upon the fact-finder”); Gibbs, 336 N.E.2d at 705 (affirming a

       judgment that an employee was acting within the scope of his employment

       when driving a company vehicle to his home).6


       2. Restatement (Second) of Torts § 317 – Negligent Hiring/Retention

[39]   The Hudginses next argue that the trial court erred by granting summary

       judgment to Ideal on their negligent hiring/retention claim under Restatement §

       317. Specifically, they argue that “genuine issues of material fact remain as to

       whether Ideal should be held liable for [Bemish’s] acts outside of the scope of

       his employment.” (The Hudginses’ Br. 13).


[40]   “Indiana recognizes the tort of negligent hiring and retention of an employee”

       and has adopted Restatement § 317 as the standard in regard to such a claim.




       6
         Even if Ideal’s own designated evidence had not conflicted, reversal of summary judgment would still be
       required because the Hudgins’ designated evidence showed that there was a genuine issue of fact regarding
       whether Bemish was acting within the scope of his employment.

       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016                    Page 20 of 24
Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 897 N.E.2d 507, 512 (Ind. Ct.

App. 2008) (citing Konkle v. Henson, 672 N.E.2d 450, 460 (Ind. Ct. App. 1996)).

Restatement § 317, provides, in relevant part:

        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

                                              *****

                 (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

                 (ii) knows or should know of the necessity and opportunity
                 for exercising such control.

“Under the Restatement [§ 317], to determine whether an employer is liable for

negligent hiring or retention of an employee, the court must determine if the

employer exercised reasonable care.” Sandage, 897 N.E.2d at 512. “In

negligence cases, summary judgment is ‘rarely appropriate.’” Rhodes v. Wright,

805 N.E.2d 382, 387 (Ind. 2004) (quoting Tibbs v. Huber, Hunt & Nichols, Inc.,

668 N.E.2d 248, 249 (Ind. 1996)). “This is because negligence cases are

particularly fact sensitive and are governed by a standard of the objective




Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016    Page 21 of 24
       reasonable person—one best applied by a jury after hearing all of the evidence.”

       Id.


[41]   In order for Ideal to obtain summary judgment in its favor on this negligent

       hiring/retention claim, it was required to designate evidence to affirmatively

       negate or demonstrate that one of these elements of Restatement § 317 was not

       satisfied. See Siner, 51 N.E.3d at 1188; Jarboe, 644 N.E.2d at 123. In Jarboe, our

       Indiana Supreme Court explained the importance of the parties’ burden in a

       summary judgment proceeding:


               The burden imposed at trial upon the party with the burden of
               proof on an issue is significantly different from that required of a
               non-movant in an Indiana summary judgment proceeding.
               Under Indiana’s standard, the party seeking summary judgment
               must demonstrate the absence of any genuine issue of fact as to a
               determinative issue, and only then is the non-movant required to
               come forward with contrary evidence.

                                                     *****

               Merely alleging that the plaintiff has failed to produce evidence
               on each element of [his cause of action against the defendant] is
               insufficient to entitle the defendant to summary judgment under
               Indiana law.

       Jarboe, 644 N.E.2d at 123.


[42]   Accordingly, our task on appeal is not to determine whether the Hudginses

       have proven each element of their Restatement § 317 claim; instead, we must

       determine whether Ideal has adequately met its initial burden of proving an

       absence of any genuine issue of material fact or of affirmatively negating at least


       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 22 of 24
       one element with respect to the Hudginses’ Restatement § 317 claim. See

       Jarboe, 644 N.E.2d at 123; Siner, 51 N.E.3d at 1188.


[43]   On summary judgment, Ideal acknowledged that Restatement § 317 imposes a

       duty on an employer to exercise reasonable care to control an employee acting

       outside the scope of employment under certain circumstances, but it asserted

       that it “had no actual or constructive knowledge of any information which

       would show a propensity of Bemish to commit the tortious acts which led to

       this suit.” (App. 22). Ideal did not, however, designate any specific evidence to

       support its assertion. In its later summary judgment reply, it argued that it was

       not liable under Restatement § 317 because the Hudginses had failed to present

       any evidence to support such a claim.


[44]   On appeal, Ideal asserts that “no genuine issue of material fact exists as to

       whether Ideal knew or should have known Bemish’s use of the Ideal truck

       posed an unreasonable risk of harm” because “[t]he Hudgins offer[ed] no

       evidence to show [that] Ideal had any knowledge of the unreasonable risk posed

       by Bemish prior to the accident.” (Ideal’s Br. 17).


[45]   Ideal’s mere assertion that the Hudginses would not be able to prove the

       necessary elements of their Restatement § 317 claim does not entitle it to

       summary judgment. “Summary judgment is proper where the movant has

       shown, through its designated evidence, that there is no genuine issue of as to

       any material fact and that it is entitled to judgment as a matter of law.”

       Williams v. Ind. Rail Road Co., 33 N.E.3d 1043, 1062 (Ind. Ct. App. 2015), reh’g


       Court of Appeals of Indiana | Opinion 49A02-1505-CT-384 | December 9, 2016   Page 23 of 24
       denied, trans. denied. See also Hughley, 15 N.E.3d at 1003. Because Ideal did not

       designate any specific evidence to affirmatively negate an element of the

       Restatement § 317 claim, it failed to meet its initial summary judgment burden.

       See, e.g., Siner, 51 N.E.3d at 1189 (holding that the trial court erred by granting

       summary judgment where the defendants did not affirmatively negate the

       plaintiffs’ claim). Accordingly, the trial court erred by granting summary

       judgment on this claim, and we reverse the trial court’s judgment and remand

       for further proceedings.7


[46]   Reversed and remanded.


       Kirsch, J., and Riley, J., concur.




       7
         Ideal also continues to argue that we should consider the factors of Webb v. Jarvis, 575 N.E.2d 992 (Ind.
       1991)—the relationship between the parties; the reasonable foreseeability of harm; and public policy
       concerns—to determine whether a duty of care even arose. It contends that, given these considerations, it
       “had no duty to the plaintiffs because they were not patrons of Ideal Heating and because Ideal Heating
       could not have foreseen the harm.” (App. 24). Our Indiana Supreme Court has recently explained that a
       court need not apply the Webb factors to determine if there is a duty when an established duty already exists.
       See Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016). Here, Restatement § 317 sets forth
       that an employer has a “duty to exercise reasonable care so to control his servant while acting outside the
       scope of his employment” when specific conditions, which are at issue in this case, are met. Accordingly, we
       will not consider the Webb factors nor engage in a redetermination of duty. Additionally, unlike Goodwin,
       which involved an analysis of foreseeability of a criminal act because it was part of the duty analysis, we will
       not engage in an analysis of foreseeability of the harm to Hudgins where it is not part of the duty analysis
       under Restatement § 317.



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