                                                                       FILED
                                                                   Jan 31 2017, 8:44 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Elizabeth A. Knight                                        Matthew J. Schad
Byron D. Knight                                            George A. Budd, V
Lisa A. Baron                                              Schad & Schad, P.C.
Knight Hoppe Kurnik & Knight, Ltd.                         New Albany, Indiana
Schererville, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Harrison County                                            January 31, 2017
Sheriff’s Department,                                      Court of Appeals Case No.
Appellant-Defendant,                                       22A01-1605-CT-1080
                                                           Appeal from the Floyd Circuit
        v.                                                 Court
                                                           The Honorable J. Terrence Cody,
Leandra Ayers, Personal                                    Judge
Representative of the Estate of                            Trial Court Cause No.
Christine Britton, Deceased,                               22C01-1104-CT-558
Appellee-Plaintiff




Baker, Judge.



Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017                Page 1 of 9
[1]   The Harrison County Sheriff’s Department (the Sheriff) appeals the trial court’s

      denial of its motion to correct error in which the Sheriff argued that it was

      entitled to judgment on the evidence. The trial court’s order came after a jury

      returned a verdict in favor of Leandra Ayers, representative of the Estate of

      Christine Britton (the Estate), for $1.2 million. The jury found the Sheriff

      vicariously liable under the doctrine of respondeat superior because Christine’s

      husband, Sheriff’s Deputy John Britton, knew that Christine had expressed

      suicidal thoughts but left her in a room by herself with his gun. The Sheriff

      argues that there is insufficient evidence, as a matter of law, that John was

      acting in the scope of his employment during the incident, and that the trial

      court made several errors in the admission of evidence and in its jury

      instructions. Finding that John’s actions were undertaken in a purely private

      capacity and had no connection to his employment as a sheriff’s deputy, we

      reverse and remand with instructions to grant the Sheriff’s motion to correct

      error.


                                                      Facts     1




[2]   On March 29, 2009, Christine called her husband, John, to tell him that they

      had dinner plans that evening. He arrived home after 3:00 p.m., and Christine

      invited him into bed. After having sex, the couple showered together and spent

      time watching television. They began to get ready to leave, but they were




      1
       We held oral argument on January 10, 2017, in Indianapolis. We thank the attorneys for their stimulating
      and informative oral advocacy.

      Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017                    Page 2 of 9
      running late. John asked Christine whether she was “genetically unable to be

      anywhere on time.” Tr. p. 486.


[3]   This set off an argument. Christine began by telling John that she always had

      to do the work around the house, but she quickly progressed to making

      comments like, “you make me so mad I could kill myself,” to which John

      responded, “oh whatever.” Id. at 488.2 John called the other couple to let them

      know that he and Christine would not be attending dinner.


[4]   As a Sheriff’s Deputy, John always wore his personal weapon when he went

      out, even when he was off duty. Since he had been planning to go out, he had

      his gun on him during this argument. After they argued some more, Christine

      reached for John’s gun but he bear hugged her so that she could not reach it.

      He told her, “don’t touch my gun.” Id. She responded, “I’ll just get one out of

      the safe.” Id. at 489.3 After Christine again threatened to kill herself, John said

      “fine,” took his gun out, and laid it on the bed. Id. at 497. He walked out of

      the bedroom and toward the front door. Before he exited the house, he heard a

      gunshot. He ran back to the bedroom and saw that Christine had shot herself.

      John attempted to administer first aid, and he called the police. Christine died

      as a result of the gunshot.




      2
       John testified that this was not the first time Christine had threatened suicide, and she had even put a gun to
      her temple before, but that she typically calmed down and went on as if nothing had happened.
      3
        John later testified that, in addition to the guns in the safe, they also regularly kept a loaded shotgun under
      the bed, a loaded pistol on each side of the bed, and an AR-15 in the bathroom.

      Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017                            Page 3 of 9
[5]   A forensic investigation confirmed that Christine had pulled the trigger, not

      John. Although there was blood on his sweater, there was no impact splatter,

      indicating that he was not in the room at the time of the gunshot. Christine did

      have impact splatter on her, except for the palm of her hand, indicating that she

      was holding the gun. Expert witnesses later testified, with a reasonable degree

      of scientific certainty, that the gunshot was self-inflicted.4


[6]   The Sheriff brought disciplinary action against John and recommended his

      termination. It charged that John did not conform to laws, engaged in conduct

      unbecoming an officer, and improperly used his weapons.


[7]   The Estate filed a civil complaint against the Sheriff and John for Christine’s

      death, but John was later dismissed from the case. The Estate had four legal

      theories in its amended complaint: 1) Christine’s death was caused by John’s

      negligence and the Sheriff was vicariously liable under the doctrine of

      respondeat superior; 2) Christine’s death was caused by the excessive force used

      by John to restrain her, and the Sheriff was liable under respondeat superior; 3)

      Christine’s death was caused by the Sheriff’s negligent entrustment of John with

      guns and ammunition; and 4) Christine’s death was caused by the Sheriff’s

      negligent retention of John as an employee.




      4
       John was charged by the State with assisting a suicide, and ultimately pleaded guilty to and was convicted
      of criminal recklessness.

      Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017                       Page 4 of 9
[8]    A jury trial was held on February 1-5, 2016. Following the presentation of

       evidence, the Sheriff filed a motion for judgment on the evidence, arguing that

       the Estate did not meet its burden of proof on any of its claims. The trial court

       granted the motion as to the final three counts, but allowed the trial to proceed

       on the Estate’s first theory. The jury found in favor of the Estate and awarded

       it $1.2 million. The Sheriff filed a motion to correct error, reiterating its

       argument in its earlier motion for judgment on the evidence, but the trial court

       denied the motion.5 The Sheriff now appeals.


                                      Discussion and Decision
[9]    The Sheriff argues that, as a matter of law, it cannot be held liable for John’s

       actions. Although it has several theories supporting this conclusion, we will

       focus on one that is dispositive—whether John was acting within the scope of

       his employment during the relevant time period.


[10]   When this Court reviews a trial court’s ruling on a motion for judgment on the

       evidence, we apply the same standard as the trial court, considering only the

       evidence and reasonable inferences most favorable to the nonmoving party.

       City of Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind. Ct. App. 1999).

       Judgment on the evidence is appropriate only if there is no substantial evidence

       or reasonable inference to be drawn therefrom to support an essential element




       5
        The trial court granted one portion of the motion to correct error, remitting the $1.2 million award to
       $700,000, pursuant to the statutory cap in the Indiana Tort Claims Act. Ind. Code § 34-13-3-4(a)(1)(C).

       Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017                       Page 5 of 9
       of the claim. Id. A judgment on the evidence should be entered only if the

       evidence points unerringly to a conclusion not reached by the jury. Id.


[11]   Under the doctrine of respondeat superior, vicarious liability will be imposed

       upon an employer where an employee has inflicted harm while acting “within

       the scope of his employment.” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind.

       2003). An employee acts within the scope of his employment when the act is

       incidental to the conduct authorized by an employer or if it, to an appreciable

       extent, furthers the employer’s business. Id. An employee does not act within

       the scope of his employment when it occurs within an independent course of

       conduct not intended by the employee to serve any purpose of the employer.

       Id. at 284.


[12]   Criminal acts of an employee may produce vicarious liability if the act arises

       out of the context in which an employer put the employee. For example, in

       Stropes v. Heritage House Children Center, our Supreme Court approved the

       application of vicarious liability to an employer whose employee sexually

       assaulted a resident of the center because the sexual assault stemmed from the

       employee’s authorized act of bathing the victim. 547 N.E.2d 244, 250 (Ind.

       1989). In such circumstances, the test is whether the employee’s actions were at

       least for a time authorized by his employer. Id. If some of the employee’s

       actions were authorized, the question of whether any unauthorized acts were

       within the scope of employment is one for the jury, but if none of the

       employee’s acts were authorized, the matter is a question of law. Konkle v.

       Henson, 672 N.E.2d 450, 456 (Ind. Ct. App. 1996).

       Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017   Page 6 of 9
[13]   Regarding the doctrine of respondeat superior, the Estate’s central argument is

       that a police officer is always on duty. The current county Sheriff testified that

       the department has a “sheep dog philosophy and that sheep dog philosophy is

       one that the sheep dog is always protecting the flock.” Tr. p. 424. More

       specifically, the Estate argues that John was furthering his employer’s interests

       when subduing Christine and preventing her from reaching his gun because the

       Sheriff is charged with the authority to apprehend any individual who appears

       mentally ill and in need of treatment. Ind. Code § 12-26-4-1. The Estate argues

       that, at a minimum, several of John’s acts were authorized by the Sheriff, and

       that therefore the issue should be considered a question of fact for the jury

       rather than a question of law.


[14]   We cannot agree that the doctrine of respondeat superior should apply to the

       particular facts of this case. In all of his relevant acts, John was acting as a

       husband, not a sheriff’s deputy. He was not standing in his own bedroom by

       dint of the Sheriff’s authorization—he was in the bedroom in a purely private

       capacity, in the most intimate setting possible, of one spouse engaging with

       another spouse. Under these circumstances, John’s conduct can in no way be

       tied or attributed to his employer, the Sheriff. The Estate is correct to note that

       an employee can still be within the scope of his employment if there is a

       mixture of motives, and that the Estate is not required to “show that the acts of

       the employee were motivated solely or predominately by the desire to serve the

       employer.” Dodson v. Carlson, 14 N.E.3d 781, 783 (Ind. Ct. App. 2014). But we




       Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017   Page 7 of 9
       find that the evidence in this case, construed in the Estate’s favor, shows that

       John was acting solely, not just predominately, in a private capacity.


[15]   Although we have held that where some acts of the employee are authorized by

       his employer, the issue of whether the employee was acting within the scope of

       his employment becomes a question for the jury, we do not believe that the

       word “authorized” should be read as broadly as simply “not unauthorized.” In

       every case upholding the vicarious liability of an employer, there is some

       minimal nexus between the employee’s work and the facts of the case. See, e.g.,

       Stropes, 547 N.E.2d at 245 (employer instructed, and therefore authorized,

       employee to bathe resident of facility, which then shifted into sexual assault);

       Southport Little League v. Vaughan, 734 N.E.2d 261, 268 (Ind. Ct. App. 2000)

       (employer instructed, and therefore authorized, equipment manager to fit boys

       with uniforms, which then shifted into that manager committing molestations);

       Gomez v. Adams, 462 N.E.2d 212, 224-25 (Ind. Ct. App. 1984) (employer

       instructed, and therefore authorized, private security officer to maintain order

       in apartment complex, which then shifted into that officer committing several

       crimes). In the present case, we cannot point to any instruction given by the

       Sheriff to John that placed him into the situation that resulted in Christine’s

       death. Indeed, we cannot find a single act or omission committed by John that

       he would not have done as a member of an entirely different profession.

       Because there is not even a slight nexus between his job as a sheriff’s deputy

       and his actions in his own bedroom, none of his acts were “authorized” for




       Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017   Page 8 of 9
       purposes of the doctrine of respondeat superior, and the question of his scope of

       employment should have never gone before the jury.


[16]   If we were to accept the Estate’s argument, we can find little reason that any

       police department would not be found vicariously liable for every act of its

       officers and deputies. Every police department has an interest in its employees

       advancing its goal of crime prevention. Because every officer is at all times

       authorized to reduce the level of crime, whether on or off duty, the Estate’s

       position would turn every crime or tort committed by an officer into a question

       of fact for a jury. Perhaps there would be some limit based on the officer’s

       jurisdiction, as in Moore, 706 N.E.2d at 604, where we found that the city could

       not be held liable for the actions of an officer committed outside of the city. But

       that would not be a viable limit for county deputies, whose jurisdiction extends

       over hundreds of square miles. It certainly would not be a viable limit for State

       Troopers, whose jurisdiction extends over the entire state.


[17]   In short, because John’s actions took place in the most private and intimate of

       circumstances, during an argument between two spouses, while he was off

       duty, in an encounter to which the Sheriff had absolutely no connection, as a

       matter of law the Sheriff cannot be held vicariously liable for his crimes.


[18]   The judgment of the trial court is reversed and remanded with instructions to

       grant the Sheriff’s motion to correct error consistent with this opinion.


       Najam, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Opinion 22A01-1605-CT-1080 | January 31, 2017   Page 9 of 9
