MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 20 2020, 8:35 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANTS                                ATTORNEYS FOR APPELLEE
Neal F. Eggeson, Jr.                                   Christopher L. Riegler
Eggeson Privacy Law                                    Kimberly E. Schroder
Fishers, Indiana                                       Patricia B. Freije
                                                       Katz Korin Cunningham PC
                                                       Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Stuck and Cathy Stuck,                            May 20, 2020
Individually and as Parents of D.S., a minor,          Court of Appeals Case No.
Appellants-Plaintiffs,                                 19A-CT-1407
                                                       Appeal from the Morgan Superior
        v.                                             Court
                                                       The Honorable Sara A. Dungan,
Franciscan Alliance, Inc. d/b/a                        Judge
Franciscan St. Francis Health
                                                       Trial Court Cause No.
Mooresville,                                           55D03-1611-CT-1747
Appellee-Defendant,



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                  Page 1 of 26
                                 Case Summary and Issues
[1]   John and Cathy Stuck sued Franciscan Alliance, Inc. (“Franciscan”), doing

      business as Franciscan St. Francis Health Mooresville (“St. Francis”), alleging a

      Franciscan employee had publicly posted protected health information about

      John’s son, D.S. Specifically, they alleged that they learned of D.S.’s death

      through a comment the Franciscan employee had made on a social media post

      about an accident D.S. had been involved in and that they suffered damages as

      a result thereof. They sued Franciscan under a theory of respondeat superior

      liability (among others). A jury found in favor of Franciscan. The Stucks

      appeal the judgment, raising three issues for our review which we reorder and

      restate as: 1) whether the trial court erred in admitting certain evidence over the

      Stucks’ objection; 2) whether the trial court erred in instructing the jury about

      respondeat superior liability; and 3) whether the trial court erred in denying the

      Stucks’ motion for judgment on the evidence following the verdict. Concluding

      the trial court did not err in its admission of evidence, in instructing the jury, or

      in refusing to disturb the jury’s verdict, we affirm.



                             Facts and Procedural History                                  1




      1
        Franciscan has filed a Motion to Strike two passages from Appellants’ Brief. By separate order, we grant
      that motion and have not considered the content of those statements.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                     Page 2 of 26
[2]   John and Cathy were married in July of 2015, after dating for approximately a

      year and a half.2 John had two children, including sixteen-year-old D.S., and

      Cathy had two children, including twelve-year-old P.J., when they married. On

      the evening of August 13, 2015, D.S. and P.J. were riding the family ATV

      around their neighborhood in Mooresville when they had an accident. Both

      children were injured, and two ambulance crews responded.


[3]   One ambulance took P.J. and Cathy to Riley Hospital in Indianapolis. The

      second ambulance crew took D.S. to St. Francis to rendezvous with Lifeline.

      John drove himself to St. Francis to try to meet the ambulance there. By the

      time he arrived, however, D.S. had already come and gone; the ambulance

      arrived at St. Francis at 7:25 p.m., D.S. was taken to the emergency department

      to be intubated, and he was airlifted to St. Vincent Hospital around 8:00 p.m.

      Staff at St. Francis told John that D.S. was either on his way to Methodist

      Hospital or Riley Hospital, but “most likely Riley, since he was still

      underage[.]” [Transcript of] Jury Trial, Volume 3 at 3. On the way to Riley,

      John called his parents to tell them about the accident. John’s brother and

      sister-in-law, Chris and Tiffanie, were at John’s parents’ house at the time. The

      extended family also headed to Riley on hearing the news.


[4]   Also on August 13, 2015, Linda Turk had worked in environmental services at

      St. Francis for a few months. Her job involved cleaning and sterilizing patient




      2
          John and Cathy divorced in 2018, after this lawsuit was filed.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 3 of 26
      rooms and cleaning bathrooms and hallways. Part of her orientation to the job

      involved training regarding patient privacy laws and expectations. Turk

      understood that protecting patient privacy was expected of every Franciscan

      employee. See Tr., Vol. 2 at 174-75. The evening of D.S.’s accident, Turk was

      working an evening shift, due to leave around midnight. Turk was cleaning a

      room at what she thought was “maybe 4:30, 5 o’clock” when an ICU nurse

      entered and said the Lifeline helicopter had just landed, “come here and look.”

      Id. at 143, 152; see also id. at 195 (Turk testifying that it “was between 4 and 4:20

      when the nurses came and grabbed us out of . . . the ICU room, to go see that

      Lifeline had landed”). Turk followed the nurse to a room where they could see

      the helicopter. Another ICU nurse joined them, and the two nurses talked

      “about how the patient was on [an] ATV, how it had flipped with him and his

      brother on it, and that he was pretty badly beaten up from the accident.” Id. at

      150. As they all left the room, they encountered an emergency department

      nurse who told them that the patient’s “injuries were really bad. They had

      gotten him stable there, and they were getting ready to put him back on Lifeline

      to transport him to another trauma one hospital.” Id. Turk’s understanding of

      the patient’s condition was that “he was not going to probably survive [the]

      accident.” Id. at 199. Turk returned to her duties.


[5]   The timing of what took place next was the subject of much discussion

      throughout these proceedings, as it was important to both the Stucks’ case and

      to Franciscan’s defense. At some point, Turk perused Facebook on her phone

      and saw a story posted on WRTV’s page about an ATV accident. Putting two


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 4 of 26
and two together, Turk commented on the post, writing, “Life lined landed at

work with one of them and he was lookin very bad. I hope this shows not only

their family but other families that ATVs r very much so dangerous. I’m sorry

for the family’s lose.” List of Exhibits, Volume 1 at 246 (spelling and

abbreviations in original).3 Turk said she expressed sympathy for the family’s

loss because the WRTV story indicated the victim of the accident had died. In

the immediate aftermath of these events, while Turk’s conduct was being

investigated by Franciscan, Turk’s supervisor recorded that Turk told him she

had commented on the post while sitting in her car after her shift, around 11:45-

11:55 p.m. See Ex., Vol. 2 at 37. At her deposition, Turk said she did not know

the exact time she posted her comment but guessed it was probably around 8

p.m. or 8:30 p.m. Franciscan asked, “[H]ow we’ve been operating was that it

was much later. Could that be possible? . . . Say, around 11:00 or 11:30?”

Appellants’ Appendix, Volume II at 84. In response to that prompt, Turk

conceded it was possible. See id. At trial, however, she testified that she posted

the comment on her dinner break around 8:00 p.m. and consistently disavowed

making the post after 11:00 p.m. or having told her supervisor she made the

comment at that time. Turk also testified at trial that when she took her last

break of the evening, around 10:30 p.m., she found “rude and hateful

comments towards me” and comments from the family and decided to delete

her original comment. Tr., Vol. 2 at 155.




3
    Citations to the exhibits are to the public access version and based on the .pdf pagination.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                       Page 5 of 26
[6]   Meanwhile, John arrived at Riley, located Cathy, and they tried to locate D.S.

      One of the Riley nurses eventually told them that D.S. was at St. Vincent

      Hospital. John and his father left Riley to go to St. Vincent. “About 8, 8:30, no

      later than 9[,]” Tiffanie looked at Facebook and saw WRTV’s post about the

      accident. Id. at 211. Scrolling through the comments on the post, Tiffanie saw

      Turk’s comment and concluded D.S. “didn’t make it.” Id. Chris called John

      and asked if D.S. had passed because “people were posting on Facebook, or

      doing different posts, that alluded to the fact that D.S. had passed.” Tr., Vol. 3

      at 5. John was not yet at St. Vincent when Chris called, but when he arrived

      around 8:50 p.m., he was met at the door by a doctor and a sheriff who took

      John into a private room and told him D.S. had died. In explaining the

      difference between hearing the news from the doctor and hearing about a

      Facebook post from his brother, John said,


              The physician had tact, and caring and compassion. . . . He was
              emphathetic [sic], I mean, he was sympathetic to what he was
              telling me. Facebook, I truly believe, is partly the devil. And it’s
              . . . it’s ridiculous the amount of things that are posted and
              hurtful things. [It] wasn’t one hundred percent known, it wasn’t,
              but tell that to a father that’s on his way to help his son, that oh
              it’s just Facebook, it might not be true.


      Id. at 7. Medical records showed D.S. had gone into cardiac arrest while en

      route to St. Vincent, and CPR was initiated approximately ten minutes prior to

      landing. CPR was continued and other life-saving measures were attempted

      upon his arrival at St. Vincent but after approximately thirty minutes, doctors

      pronounced D.S. deceased at 8:45 p.m.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 6 of 26
[7]   In the early morning hours of August 14, Kathy Cooper, St. Francis Nursing

      Supervisor, sent an email to several Franciscan employees and/or executives

      advising them that at 12:45 a.m., she had received a call from Kathy Coss

      “about a person by the name of Linda Turk posting some comments about

      ATV accident on facebook.” Ex., Vol. 2 at 35. Coss was affiliated with

      another local hospital and was concerned the post might be a privacy violation.

      Coss said the post had been removed by the time she called but that she had

      taken a screenshot of it. Cooper’s email also advised that several minutes after

      Coss’ call, a nurse in the St. Francis emergency department called her and said

      another Franciscan employee had seen Turk’s comment before it was deleted

      and had called in to report it. She also had taken a screenshot of the comment.

      Cooper’s email was forwarded to Rebecca Merkel, Franciscan’s privacy officer.

      Merkel initiated an investigation which included getting the screenshots of

      Turk’s comment from the two people who had reported the comment. Turk

      was placed on suspension while Franciscan investigated. At the end of her

      suspension, Turk’s employment with Franciscan was terminated.


[8]   The Stucks filed an amended complaint against Franciscan in February 2017

      alleging that Franciscan was vicariously liable for negligent acts of its employee

      that caused “emotional harm and an irreparable loss of privacy[.]” Appellants’

      App., Vol. II at 25. The case was tried to a jury which returned a verdict for

      Franciscan. The Stucks filed a motion to correct error, which was denied, and

      then initiated this appeal of the judgment.




      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 7 of 26
                                 Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[9]    We review a trial court’s decision regarding admission of evidence for an abuse

       of discretion. Estate of Benefiel v. Wright Hardware Co., Inc., 128 N.E.3d 485, 489

       (Ind. Ct. App. 2019), trans. denied. The trial court abuses its discretion only

       when its action is clearly erroneous and against the logic and effect of the facts

       and circumstances before the court. Id. Even when the trial court errs in its

       ruling on the admissibility of evidence, however, we will only reverse if the

       error is inconsistent with substantial justice. Id. To determine whether the

       erroneous admission of evidence affected a party’s substantial rights, we assess

       the probable impact of the evidence upon the finder of fact. Id.


                            B. Admission of Social Media Posts
[10]   Before the presentation of evidence began, the trial court heard argument from

       the parties on the admissibility of Plaintiff’s Exhibit 4:




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 8 of 26
Ex., Vol. 1 at 246.4 Franciscan objected to the proposed exhibit because it had

been excised from a larger context, contained in Franciscan’s Exhibit R:




Ex., Vol. 2 at 30.5 Franciscan argued, with respect to Exhibit 4:


           [T]he statement is clearly a hearsay statement, in that there’s no
           information provided here, and we don’t, I guess, have the
           custodian here. This was a post that they claim was captured
           from social media. We don’t have any kind of authentication



4
    Exhibit 4 also includes a thumbnail picture of Turk to the left of her name.
5
    This image from Exhibit R is one of the screenshots Franciscan obtained as part of its investigation.


Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                         Page 9 of 26
               about where this document came from. But, more importantly,
               Your Honor, under [Evidence Rule] 106, the completeness
               doctrine requires that if a portion of a writing is going to be
               admitted into evidence, that the remainder of that writing be
               admitted as well[.] Your Honor, that clip, as you can see, based
               on what we have, is taken out of context in that what you’ve got
               there on Plaintiff’s proposed exhibit 4 is just the alleged comment
               to have been made, but it’s taken out of a writing that you can
               see is amongst a variety of other comments, and most
               importantly you can see that it was made on a news post.


       Tr., Vol. 2 at 103. The Stucks responded that the post, as presented in Exhibit

       4, was not hearsay because it was not being introduced for the truth of the

       matter asserted. Further, Turk was going to testify and lay the foundation for

       its admission. Counsel averred that he had “excised all of the objectionable

       material” – “the timestamp, all of the other comments, all of the WISH TV

       logo” – such that “[a]ll that’s left is admissible.” Id. at 104.6 The trial court

       stated it was going to allow Exhibit 4 over objection, and when pressed by

       Franciscan about the admission of Exhibit R, stated, “I think [Exhibit R] would

       be relevant[. F]or right now I would see R as potentially coming in as well for

       [Franciscan] to use to cross examine Ms. Turk on.” Id. at 107.


[11]   During the Stucks’ direct examination of Turk, Turk testified that Plaintiff’s

       Exhibit 4 “is my post that I put . . . on RTV 6’s comment page.” Id. at 153.




       6
        Turk consistently said she commented on WRTV’s Facebook page. Tiffanie Stuck testified she saw the
       comment on WRTV’s page. That it appears in Exhibit R over a WISH-TV background was never explored
       or explained.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020            Page 10 of 26
       Exhibit 4 was admitted over Franciscan’s renewed objection. And during

       Franciscan’s cross-examination of Turk, Defendant’s Exhibit R was admitted

       over the Stucks’ objection. Turk identified Exhibit R, showing comments

       before and after hers, as what the post “actually looked like” when she

       commented on it. Id. at 178-79. The Stucks objected on the basis of

       authentication and hearsay issues with both other’s people’s comments and the

       time stamp.7 In overruling the objection, the trial court stated, “The parties can

       explain Facebook posts, timing of things and stuff through other questions.” Id.

       at 180. The Stucks argue the trial court abused its discretion in admitting

       Exhibit R because it “allowed Franciscan to create the false impression that the

       social media post was created several hours later than was testified to by Linda

       Turk.” Appellants’ Brief at 16.


[12]   Franciscan defended the admission of Exhibit R by pointing to Indiana

       Evidence Rule 106 and the doctrine of completeness. Evidence Rule 106

       provides, “If a party introduces all or part of a writing or recorded statement, an

       adverse party may require the introduction, at that time, of any other part – or

       any other writing or recorded statement – that in fairness ought to be considered

       at the same time.” The rule incorporates the common law doctrine of




       7
         In addition to the image shown above, Exhibit R consists of three photos of a phone taken at 1:13 a.m.
       displaying various comments on what appears to be Facebook, including comments from Kathy Coss and
       Tiffanie Stuck, and a screen shot taken at 12:52 a.m. of what appears to be comments to a Fox59 news story,
       including a comment from Tiffanie Stuck directed to Kathy Coss thanking her for taking a screenshot of
       Turk’s earlier comment. Ex., Vol. 2. at 30-33. None of these screenshots include Turk’s comment.
       Although the Stucks now contend those additional images were admitted in error, it does not appear they
       were specifically challenged at trial, nor was Turk asked about them.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                  Page 11 of 26
       completeness, the purpose of which is “to allow the introduction of additional

       material to place incomplete, misleading evidence in its full context.” In re

       Paternity of B.B., 1 N.E.3d 151, 159 (Ind. Ct. App. 2013). We do not disagree

       that Exhibit 4 was but a part of a larger “writing” (in the form of a comment

       thread) and that Exhibit R placed the comment in context. Under Rule 106,

       however, the redacted portions of a document are still subject to normal rules of

       admissibility before they may be admitted. Walker v. Cuppett, 808 N.E.2d 85, 97

       (Ind. Ct. App. 2004).


[13]   The Stucks objected to the admission of Exhibit R on the basis of hearsay and

       lack of authentication. As for the hearsay objection, just as with the Stucks’

       Exhibit 4, Exhibit R was not admitted to prove the truth of the matter asserted.

       The actual substance of the other comments shown in Exhibit R is largely

       irrelevant and the truthfulness of Turk’s comment is not at issue – the issue is

       that she posted a comment at all. Exhibit R was simply offered to show the

       context in which Turk’s earlier-admitted comment appeared.


[14]   To lay a foundation for the admission of evidence, the party offering the

       evidence must show that it has been authenticated. Hape v. State, 903 N.E.2d

       977, 989 (Ind. Ct. App. 2009), trans. denied. “To satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” Ind. Evidence Rule 901(a). Absolute proof of authenticity is not

       required; an item is admissible if the evidence establishes a reasonable

       probability that the item is what it is claimed to be. In re Paternity of B.B., 1

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 12 of 26
       N.E.3d at 156. If this reasonable probability is shown, “any inconclusiveness

       of the exhibit’s connection with the events at issue” goes to the weight to be

       given to the evidence. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008),

       trans. denied. Sufficient evidence to prove authenticity includes the testimony of

       a witness with knowledge. Evid. R. 901(b)(1). The Stucks cite to several cases

       which they contend “outline the parameters for authenticating social media

       evidence.” Appellants’ Br. at 31. But we are not here concerned with

       authenticating a Facebook account, see Richardson v. State, 79 N.E.3d 958 (Ind.

       Ct. App. 2017), trans. denied, or verifying the identity of the author of a tweet,

       see Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015), trans. denied. Exhibit R

       was not offered for either of those evidentiary purposes. It was offered only to

       show that Turk’s comment was one among several comments posted on a

       public Facebook page. Turk herself authenticated her comment as made by her

       (as she did with the Stucks’ Exhibit 4) and authenticated the exhibit as showing

       what the Facebook page looked like when she commented, thereby establishing

       Exhibit R was what it claimed to be – a visual representation of a social media

       thread.


[15]   Finally, as to the timestamp, Franciscan did ask Turk whether there was a

       “timeline on top of” the image in Exhibit R and whether it said “12:15.” Tr.,

       Vol. 2 at 200. Turk agreed that there was a time displayed and it said 12:15.

       The Stucks then clarified with Turk that one, there was no time stamp or other

       time identifying information on her actual comment and two, “looking at this,

       we really can’t tell what time your post was made, just because there’s a


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 13 of 26
       timestamp of 12:15 at the top.” Id. at 202. The trial court noted, when

       admitting Exhibit R, that the parties could “explain Facebook posts, timing of

       things and stuff through other questions.” Id. at 180. That is precisely what the

       Stucks did, and in the process, the timestamp was unmoored from the

       comment. Moreover, there can be no question that the timestamp on the image

       does not relate directly to the timing of Turk’s comment, because even though

       the parties disagree about when she made the comment, the timeline is

       somewhere between 8:00 p.m. and 11:45 p.m. Conflicts and discrepancies in

       the evidence are for the jury to resolve. Naumoski v. Bernacet, 799 N.E.2d 58, 61

       (Ind. Ct. App. 2003), trans. denied. Further, the improper admission of evidence

       is harmless error if the evidence is cumulative of other evidence admitted.

       Donaldson v. Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct.

       App. 1994). Given that there was independent evidence that Turk made her

       comment after her shift, any error in admitting Exhibit R without redaction of

       the timestamp was harmless error.


                                       II. Jury Instructions
                                      A. Standard of Review
[16]   Instructions serve to inform the jury of the law applicable to the facts presented

       at trial, enabling it to comprehend the case sufficiently to arrive at a just and

       correct verdict. Carter v. Robinson, 977 N.E.2d 448, 457 (Ind. Ct. App. 2012),

       trans. denied. When we review a trial court’s decision to give or refuse a

       tendered instruction, we consider whether: 1) the instruction correctly states the

       law; 2) the evidence in the record supports giving the instruction, and 3) the
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 14 of 26
       substance of the instruction is covered by other instructions. Humphrey v. Tuck,

       132 N.E.3d 512, 515 (Ind. Ct. App. 2019) (quotation omitted). The trial court

       has sole discretion in instructing the jury, and when an instruction is challenged

       under the last two prongs, we will defer to the trial court and reverse only for an

       abuse of discretion. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind.

       2002). When an instruction is challenged as an incorrect statement of the law,

       however, we apply a de novo standard of review. Id. at 893-94.


[17]   A party seeking a new trial on the basis of an improper jury instruction must

       show a reasonable probability that its substantial rights have been adversely

       affected. Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1217 (Ind. Ct. App.

       2019), trans. denied. In other words, “[a]n erroneous instruction merits reversal

       if it could have formed the basis for the jury’s verdict.” Fleetwood Enter., Inc. v.

       Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind. 2001).


                            B. Respondeat Superior Instruction
[18]   The Stucks’ complaint is grounded in respondeat superior – that Franciscan is

       responsible for Turk’s conduct in posting protected health information on social

       media and that such posting caused them injury. Under the doctrine of

       respondeat superior, an employer is liable for an employee’s tortious acts only if

       those acts occurred within the scope of employment. Cox v. Evansville Police

       Dep’t, 107 N.E.3d 453, 460 (Ind. 2018). For an employee’s act to fall “within

       the scope of employment,” the act must be incidental to authorized conduct or

       further the employer’s business to an appreciable extent. Knighten v. E. Chicago


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 15 of 26
       Housing Auth., 45 N.E.3d 788, 792 (Ind. 2015). An employee’s act is not within

       the scope of employment when it occurs during an independent course of

       conduct not intended to serve any purpose of the employer. Id. An employer is

       not held liable under the doctrine of respondeat superior because it did anything

       wrong, but rather “because of the [employer’s] relationship to the wrongdoer.”

       Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999).


[19]   Both sides tendered instructions regarding respondeat superior. The trial court

       rejected both submissions in favor of the model instruction, designated Final

       Instruction Number 11:


                An employer is liable for the [negligent][wrongful] act of its
                employee done within the scope of [his][her] employment, if the
                act is a responsible cause of injury to the plaintiff.


                An employee’s [negligent][wrongful] act is within the scope of
                employment when the employee’s [negligent][wrongful] act
                occurred while the employee was performing activities expressly
                or impliedly authorized by the employer, or activities incidental
                to the employee’s authorized activities.


       Appellant’s App., Vol. II at 209; see also Tr., Vol. 4 at 78.8


[20]   The Stucks contend Final Instruction Number 11 is an incomplete statement of

       the law because it does not explain what it means for an act to be “incidental”




       8
         The 2019 edition of the model instruction is slightly different, but both parties agree that the instruction the
       trial court gave was the then-current model instruction on respondeat superior.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                         Page 16 of 26
       to employment and offers no guidance for how to assess evidence that the

       employee violated the employer’s rules or policies. 9 Because their tendered

       instructions addressed both of these issues, the Stucks contend the trial court

       erred in giving Final Instruction Number 11 without also giving their proffered

       instructions. Cf. FMC Corp. v. Brown, 526 N.E.2d 719, 731 (Ind. Ct. App. 1988),

       aff’d, 551 N.E.2d 444 (Ind. 1990) (“A party may not complain an instruction is

       incomplete, when such party does not tender a more complete instruction.”).


[21]   The Stucks’ tendered instructions on respondeat superior read as follows:


                An act is within the scope of employment if it is incidental to the
                employee’s job duties, that is to say, the employee’s wrongful act
                originated in activities closely associated with her job. In
                deciding whether an employee’s wrongful act was incidental to
                her job duties or originated in activities closely associated with
                her job, you may consider:
                1. whether the wrongful act was of the same general nature as
                her authorized job duties;
                2. whether the wrongful act is intermingled with authorized job
                duties; and
                3. whether the employment provided the opportunity or the
                means by which to commit the wrongful act.




       9
         The Stucks also argue the instruction is an incorrect statement of the law, but as their conclusion is that the
       instruction was “in desperate need of clarification” ostensibly provided by their proposed instructions, we
       will address the issue as whether the instruction is incomplete, rather than incorrect. Appellants’ Br. at 20.
       Moreover, we note that although the Indiana Supreme Court has not formally approved Indiana Pattern Jury
       Instructions for use, it has recognized their existence and given them “some preferential status.” Schultz v.
       Ford Motor Co., 857 N.E.2d 977, 980 n.2 (Ind. 2006).



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                        Page 17 of 26
       Appellants’ App., Vol. II at 145 (Plaintiffs’ Proposed Final Instruction No. 4).


               The fact that an employee violated the employer’s rules, orders,
               or instructions, or engages in expressly forbidden actions, does
               not remove the employee’s wrongful acts from the scope of
               employment.


       Id. at 146 (Plaintiffs’ Proposed Final Instruction No. 5).


                                         1. Proposed Instruction 4

[22]   Proposed Instruction 4 was an instruction offered by the plaintiff and given in

       Walgreen Co. v. Hinchy, 21 N.E.3d 99, 110-11 (Ind. Ct. App. 2014), trans. denied.

       The instruction was challenged on appeal as an incomplete explanation of the

       term “incidental.” Id. at 111. The court held that giving the challenged jury

       instruction was not clearly erroneous because one, Walgreen had not tendered a

       more complete instruction and two, the tendered instruction was a correct

       statement of the law on the facts presented. Id. In other words, the instruction

       was supported by the evidence in that case. Here, we cannot say the same.


[23]   In determining whether sufficient evidence exists to support an instruction, we

       will look only to the evidence most favorable to the appellee and any reasonable

       inferences to be drawn therefrom. Humphrey, 132 N.E.3d at 515. In Hinchy, the

       employee was a pharmacist whose authorized duties included using Walgreen

       computer equipment to handle prescriptions for Walgreen customers, look up

       customer information, review customer prescription histories, and make

       prescription-related printouts. 21 N.E.3d at 108. The case arose when the

       employee did those things for a personal reason and revealed the information

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 18 of 26
       she obtained to a third party. Thus, whether some of her actions were

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

       authorized actions was part of the ultimate question for the jury to decide. Id.

       at 111 (explaining that “to the extent that Walgreen argues that the mere facts

       that [the employee] was on duty and using Walgreen equipment is insufficient

       to establish respondeat superior, [plaintiff] agrees. But we agree with [plaintiff]

       that these facts are relevant and that a reasonable jury may consider them”).


[24]   Here, the alleged wrongful act – gathering and disseminating confidential

       patient information – was unequivocally not of the same general nature as

       Turk’s authorized job duties. She worked in environmental services, cleaning,

       dusting, and removing trash from patient rooms and hallways. She did not

       have a need to know any patient information for a purpose related to her job.

       Although Turk gained the information she revealed while working, her

       disclosure of that information was not intermingled with her job duties, which,

       again, were janitorial in nature. Finally, notwithstanding the decision of the

       court in Hinchy regarding this instruction as a whole, part 3 that would instruct

       the jury that it could consider “whether the employment provided the

       opportunity or the means by which to commit the wrongful act” is an

       overstatement, at least with respect to these facts. Appellants’ App., Vol. II at

       145. “[S]imply because an act could not have occurred without access to the

       employer’s facilities does not bring it within the scope of employment.” Robbins

       v. Trustees of Indiana Univ., 45 N.E.3d 1, 8 (Ind. Ct. App. 2015). The only part

       of Plaintiff’s Proposed Instruction 4 that is a correct statement of the law and


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 19 of 26
       supported by evidence in the record is the first sentence, and the substance of

       that sentence is covered by the trial court’s instruction. The trial court did not

       abuse its discretion in refusing to give Plaintiff’s Proposed Instruction 4.


                                         2. Proposed Instruction 5

[25]   Proposed Instruction 5 is based on language from Cox v. Evansville Police Dep’t.,

       107 N.E.3d at 461: “[T]he scope of employment . . . may include acts that the

       employer expressly forbids[ or] that violate the employer’s rules, orders, or

       instructions[.]” As with Proposed Instruction 4, we conclude the evidence does

       not support giving this instruction. In Cox, the employee was an on-duty police

       officer who sexually assaulted a woman he was dispatched to investigate. The

       woman sued the city that employed the officer for vicarious liability under the

       doctrine of respondeat superior, among other theories of liability. Relevant to

       this case, the court was asked to decide whether the city was entitled to

       summary judgment on the respondeat superior claim. The court’s decision that

       summary judgment was not appropriate was grounded in the “unique nature of

       police employment”: “that police officers’ duties come with broad authority

       and intimidating power that may affect vicarious liability. More specifically,

       because police officers’ employer-conferred power is so great, the range of acts

       for which a city may be vicariously liable stretches far.” Id. at 459-60. Those

       facts are clearly far afield from the facts here, in that of course committing a

       crime was expressly forbidden by the city police department’s rules, but it was

       also the very nature of the police officer’s work and position that allowed him

       to commit the crime. The position Turk’s employment with Franciscan put her

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 20 of 26
       in is not at all similar. There was testimony that disclosing patient information

       was against Franciscan’s rules, but the difference between this case and Cox is

       that the nature of Turk’s position in environmental services did not authorize

       her or generally put her in a position to know patient information. And we

       note that the language used for Proposed Instruction 5 did not come from a

       discussion of jury instructions. In fact, given the procedural posture of Cox, jury

       instructions were not yet a consideration. “The mere fact that language appears

       in appellate opinions does not necessarily make it proper for jury instructions.”

       Dunlop v. State, 724 N.E.2d 592, 595 (Ind. 2000). Additionally, an instruction

       that singles out or unduly emphasizes a particular fact or evidence is erroneous.

       Keller v. State, 47 N.E.3d 1205, 1208 (Ind. 2016). Accordingly, the trial court

       did not abuse its discretion in refusing to give Plaintiff’s Proposed Instruction 5.


                    III. Motion for Judgment on the Evidence
                                      A. Standard of Review
[26]   In their motion to correct error, the Stucks made a motion for judgment on the

       evidence as to Franciscan’s liability. “Indiana’s trial rules allow a party to

       move for judgment on the evidence in a motion to correct error.” Sch. City of

       Hammond Dist. v. Rueth, 71 N.E.3d 33, 40 (Ind. Ct. App. 2017) (citing Ind. Trial

       Rule 50(A)(4)), trans. denied. “When considering a motion to correct error, if

       the court ‘determines that prejudicial or harmful error has been committed,’ it

       ‘shall take such action as will cure the error.’” Id. at 41 (quoting T.R. 59(J)).

       Trial Rule 50(A) provides,


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 21 of 26
               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict.


[27]   When a trial court considers a motion for judgment on the evidence following a

       jury verdict, the court “may not weigh the evidence and must view only the

       evidence favorable to the non-moving party and the reasonable inferences to be

       drawn from that evidence.” Rueth, 71 N.E.3d at 41 (quotation and citation

       omitted). A motion for judgment on the evidence should be granted “only

       where there is a complete failure of proof because there is no substantial

       evidence or reasonable inference supporting an essential element of the claim.”

       Drendall Law Office, P.C. v. Mundia, 136 N.E.3d 293, 304 (Ind. Ct. App. 2019),

       trans. denied. “If there is relevant evidence that supports the verdict, a motion

       for judgment on the evidence is improper because the final determination must

       be left to the fact-finder.” Rueth, 71 N.E.2d at 41. When, as in this case, the

       trial court denies the motion, “it is not the province of this Court to do so unless

       the verdict is wholly unwarranted under the law and the evidence.” Ohio

       Farmers Ins. Co. v. Ind. Drywall & Acoustics, Inc., 970 N.E.2d 674, 685 (Ind. Ct.

       App. 2012), trans. denied.


                                        B. Nonparty Defense
[28]   The Stucks named only Franciscan as a defendant in its complaint for damages

       arising out of Turk’s conduct. In seeking judgment on the evidence, the Stucks


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 22 of 26
       contended that because Franciscan admitted in its answer to the Stucks’

       complaint that “its employee made a post on Facebook as alleged in paragraph

       5 of [the Stucks’] Amended Complaint” and did not identify that employee as a

       nonparty, they are entitled to judgment as a matter of law that Franciscan is

       vicariously liable for any harm caused by the Facebook post. Appellants’ App.,

       Vol. II at 226 (quoting Franciscan’s Answer, id. at 30). The trial court denied

       the Stucks’ motion to correct error and by extension, their motion for judgment

       on the evidence.


[29]   Essentially, the Stucks argue that Franciscan did not properly preserve a

       nonparty defense and therefore cannot place blame on Turk:


               As a practical matter, this means that the jury should not have
               been permitted to separate Linda Turk’s misconduct . . . from
               Franciscan’s own liability. In other words, the conclusion that
               Linda Turk . . . acted tortiously automatically mandated that
               Franciscan MUST be vicariously liable.


       Appellants’ Br. at 25 (emphasis in original).10 In doing so, the Stucks use

       concepts arising under the Comparative Fault Act (the “Act”). See Ind. Code

       ch. 34-51-2. The Act allows a defendant to assert a “nonparty defense” and

       seek to allocate some or all of the fault for a claimant’s damages to a nonparty

       rather than the named defendant. Ind. Code § 34-51-2-14.




       10
         This argument assumes that the jury concluded Turk acted tortiously. As the jury returned a general
       verdict, there is no way to know what conclusions the jury made.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020                  Page 23 of 26
[30]   In a respondeat superior situation, however, because Turk is the employee upon

       whose conduct the Stucks’ claim is premised, she is not a “nonparty” in the

       usual sense. Under the doctrine of respondeat superior, liability is imposed on

       an employer who is without fault; his liability arises by operation of law where

       his employee has committed a wrongful act while in his service. Stropes by Taylor

       v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind.

       1989). The employer and employee are jointly and severally liable: both the

       employer and employee are liable for any injury and damages caused by the

       employee’s negligence, and either or both may be sued for such damages at the

       option of the injured party. Henry B. Steeg & Assocs., Inc. v. Rynearson, 143 Ind.

       App. 567, 570, 241 N.E.2d 888, 889 (1968); see also Gomez v. Adams, 462 N.E.2d

       212, 225 (Ind. Ct. App. 1984) (in evaluating a challenged jury instruction telling

       the jury not to allocate damages between an employer and employee both

       named as defendants but return judgment in a single sum, noting that where the

       employer’s liability is based solely on respondeat superior, their liability is joint

       and several and the instruction would be proper).


[31]   The Stucks admitted in the trial court that this is not a fault apportionment case:

       their entire case rises and falls on whether Turk was acting in the scope of her

       employment. See Appellants’ App., Vol. II at 85 (Plaintiffs’ Motion in Limine).

       Banking that she was, the Stucks sued Franciscan only and alleged that, in the

       course and scope of her employment with Franciscan, a Franciscan employee

       posted protected health information about D.S. on a publicly-accessible

       Facebook page of a local news outlet, causing damages to the Stucks for which


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 24 of 26
       Franciscan is liable via respondeat superior. See id. at 24-25. And periodically

       throughout these proceedings, including in their motion to correct error, the

       Stucks have attempted to keep Franciscan from asserting that Turk was not

       acting in the scope of her employment. See id. at 122 (the Stucks arguing in a

       motion to reconsider the ruling on their motion in limine that, because it did

       not name Turk as a nonparty, Franciscan “may not imply, suggest, or allude to

       misconduct by anyone” other than the parties). And yet the very nature of the

       Stucks’ respondeat superior claim is that Franciscan is liable because of someone

       else’s misconduct. Franciscan admitted that a Franciscan employee posted

       information on Facebook, see id. at 30, but it remained the Stucks’ burden to

       prove that the employee’s action was negligent and that it was done in the scope

       of her employment, even in the absence of a defense by Franciscan.


[32]   Viewing the evidence in the light most favorable to Franciscan, the nonmovant,

       there is sufficient evidence to support the verdict in Franciscan’s favor. Turk’s

       job at Franciscan put her in a place where she could learn some of the

       information she shared on Facebook, but her job duties in no way involved

       patient information, the sharing of patient information was strictly prohibited

       by Franciscan’s policies, and Turk shared information that was interpreted to

       mean something she could not have known through her employment – namely,

       that D.S. had died. “The jury, as the trier of fact, must weigh the evidence,

       draw any reasonable inferences, resolve conflicts in the evidence, determine the

       credibility of witnesses and decide in whose favor the evidence preponderates.”

       Sandberg Trucking, Inc. v. Johnson, 76 N.E.3d 178, 183 (Ind. Ct. App. 2017).


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 25 of 26
       There was not a complete failure of proof and the trial court did not error in

       declining to intervene in the jury’s decision.



                                              Conclusion
[33]   The trial court did not abuse its discretion in admitting Franciscan’s Exhibit R

       into evidence, in declining to give the Stucks’ tendered instructions purporting

       to clarify the model instruction about respondeat superior given by the trial

       court, or in denying the Stucks’ motion for judgment on the evidence.

       Accordingly, the trial court’s order entering judgment on the jury’s verdict in

       favor of Franciscan is affirmed.


[34]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1407 | May 20, 2020   Page 26 of 26
