Dale Sedam, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin v. 2JR Pizza Enterprises, LLC doing business as Pizza Hut 013413

FILED
Sep 27 2016, 8:43 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

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

IN THE
COURT OF APPEALS OF INDIANA

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

Mathias, Judge.

Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016 Page 1 of 13
[1] David C. Hamblin (“Hamblin”) was killed in a car accident involving Ralph

Bliton (“Bliton”) and Amanda Parker (“Parker”), who was employed as a Pizza

Hut delivery driver. Dale Sedam, Kim Sedam, and Bryan Norris, the co-

personal representatives of Hamblin’s Estate (collectively “the Estate”), filed a

complaint against Parker and her employer, Pizza Hut, alleging that Parker,

acting in the course and scope of her employment with Pizza Hut, negligently

operated her vehicle and caused the accident that resulted in Hamblin’s death.

[2] The Estate also alleged Pizza Hut negligently hired, trained, supervised, and

retained Parker. Pizza Hut filed a motion for summary judgment on that claim,

and the Jefferson Circuit Court granted partial summary judgment in Pizza

Hut’s favor. The Estate appeals and argues that the trial court erred when it

concluded that the Estate could only proceed with its negligence claim against

Pizza Hut under a theory of respondeat superior in light of Pizza Hut’s admission

that Parker was acting with the scope of her employment.

[3] Concluding that an employer’s admission that its employee committed the

alleged negligent act within the course and scope of her employment does not

preclude an action for negligent hiring, training, supervision, and retention, we

reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[4] At approximately 8:57 p.m. on August 24, 2012, Parker, who was employed by

Pizza Hut as a delivery driver, was operating her vehicle in the northbound lane

of State Road 62 in Jefferson County, Indiana. Hamblin was operating a

Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016 Page 2 of 13
 scooter in the same lane of travel. Parker collided with the rear of Hamblin’s

scooter, and Hamblin fell onto the roadway as a result of the impact. Tragically,

a vehicle operated by Bliton ran over Hamblin. On September 1, 2012, Hamblin

died from severe injuries he sustained in the accident.

[5] Thereafter, the Estate filed a wrongful death lawsuit against Parker, Pizza Hut,

and Bliton (collectively “the Appellees”). The Estate later amended its

complaint and alleged that Pizza Hut negligently hired, trained, supervised, and

retained Parker (“the negligent hiring claim”).

[6] On March 9, 2015, Pizza Hut and Parker filed a motion for partial summary

judgment. They argued that the trial court should enter judgment in their favor

on the negligent hiring claim because Pizza Hut had admitted that Parker was

acting within the scope and course of her employment when the accident

occurred, and therefore, Pizza Hut could only be held liable for Parker’s alleged

negligence under a theory of respondeat superior.

[7] After a hearing, the trial court entered partial summary judgment in favor of

Pizza Hut on the Estate’s negligent hiring claim. On January 4, 2016, the trial

court concluded that its order granting partial summary judgment was final and

appealable pursuant to Trial Rule 54 (B). The Estate now appeals.

Standard of Review

[8] Pursuant to Indiana Trial Rule 56(C), “[s]ummary judgment is appropriate only

where the designated evidence shows there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law.” Missler v.

Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016 Page 3 of 13
 State Farm Ins. Co., 41 N.E.3d 297, 301 (Ind. Ct. App. 2015). A genuine issue of

material fact exists where facts concerning an issue that would dispose of the

litigation are in dispute or where the undisputed material facts are capable of

supporting conflicting inferences on such an issue. Devereux v. Love, 30 N.E.3d

754, 762 (Ind. Ct. App. 2015), trans. denied. “If the material facts are not in

dispute, our review is limited to determining whether the trial court correctly

applied the law to the undisputed facts.” Id. We review pure questions of law de

novo. Id.

Discussion and Decision

[9] The issue at the heart of this appeal is whether a plaintiff may establish an

employer’s liability proceeding on both the theory of negligent hiring and the

theory of respondeat superior where the employer has admitted that the employee

was acting within the course and scope of his or her employment. To support

their respective arguments, the Estate cites to our supreme court’s opinion in

Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907), and Pizza Hut directs our

attention to this court’s opinion in Tindall v. Enderle, 162 Ind. App. 524, 320

N.E.2d 764 (1974).

[10] In Broadstreet, a business owner ordered his nine-year-old son to deliver a

message to one of his customers. The son was permitted to make his delivery by

riding a horse that the business owner knew was dangerous. He also knew that

his son was a reckless rider. After trial, the business owner was found to be

negligent because his son negligently rode the horse causing the accident and

Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016 Page 4 of 13
 resulting injury, and because he knew that his son had a reputation for reckless

riding and was not capable of controlling the horse.

[11] On appeal, the business owner challenged the trial court’s decision to admit

evidence of his son’s reputation for reckless riding. However, the court held that

the evidence was admissible:

to charge appellant with knowledge or notice of his son’s careless
and reckless manner of riding and controlling horses, and
therefore of his incompetency for that reason to be intrusted with
the control and management of the horse at the time the
appellant sent him upon the errand or mission in question.

The specific acts of appellant’s son’s reckless and careless riding
at the time and place testified to by the witnesses were also
admissible for the same purpose of charging appellant with
knowledge, or notice, of his son’s incompetency to control or
manage the horse at the time he employed him to serve in
carrying the message.

The trial court, at the time the evidence in question was received,
by an instruction to the jury limited the consideration thereof by
that body to the legitimate purpose for which it was introduced.
There was no error in admitting the evidence in question.

Broadstreet, 168 Ind. at 204, 80 N.E. at 149 (internal citations omitted).

[12] The court also held that it was permissible for the jury to find the business

owner was vicariously liable for the negligent acts of his son and to find him

liable for negligently entrusting his son with the horse knowing full well his

son’s reputation for reckless riding. Specifically, our supreme court stated:

Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016 Page 5 of 13
 The evident theory of the first paragraph, as outlined by the facts,
is that the relation of master and servant existed between
appellant and his minor son at the time of the accident in
question and that, therefore, under a well-settled rule, appellant is
responsible for the negligence of his said servant to which the
injury of appellee is imputed. This negligence, as shown, was
committed by appellant’s son and servant within the scope of the
employment or service which he was performing at the time for
his father.

The third paragraph proceeds upon the theory that the injuries
received by appellee are due to the negligence of appellant, under
the circumstances, in placing his minor son in the control and
management of his horse upon the occasion and for the purpose
in question and allowing him to ride the horse along the public
highway in the performance of the business or mission upon
which he sent him; that by reason of the boy’s carelessness, his
youth, and inexperience in the management of horses, and his
want of strength and inability to govern the horse at the time in
question, he ran into appellee’s buggy, and threw her to the
ground, thereby injuring her, as alleged in the pleading.

Id. at 195-96, 80 N.E. at 146.

[13] In Tindall v. Enderle, 162 Ind. App. 524, 320 N.E.2d 764 (Ind. Ct. App. 1974),

the appellants relied on Broadstreet to argue that the trial court erroneously

excluded evidence that the tavern owner had knowledge of his employee’s prior

assaults on tavern patrons. Specifically, Tindall and Thomas Ryan, as

administrator of the estate of Robert Slusher, “sought to introduce prior assault

evidence in support of their cause of action alleging that Falls Tap, Inc. was

negligent in employing and retaining Enderle in its employ after obtaining

corporate knowledge of his violent propensities.” Id. at 526, 320 N.E.2d at 765.
Court of Appeals of Indiana | Opinion 39A05-1602-CT-296 | September 27, 2016 Page 6 of 13
[14] The appellants argued that they should have been allowed to present the

excluded evidence because they claimed that the appellees were negligent under

the theories of negligent hiring and retention and respondeat superior. Our court

summarily rejected the controlling Broadstreet decision by citing to a federal

district court case that concluded that Broadstreet “was of limited scope,

applicable to only ‘special’ situations.”1 Id. at 529, 320 N.E.2d 767 (citing Lange

v. B&P Motor Express, Inc., 257 F.Supp. 319 (N.D.Ind. 1966)).

[15] The Tindall court also concluded that the negligent hiring cause of action

“generally arises only when an agent, servant or employee steps beyond the

recognized scope of his employment to commit a tortious injury upon a third

party.” Id. at 529-30, 320 N.E.2d at 767-68 (citing 34 A.L.R.2d 372; 53

Am.Jur.2d Master-Servant §§ 422 and 458 (1970)). The court concluded that a

cause of action for negligent hiring “is of no value where an employer has

stipulated that his employee was within the scope of his employment.” Id. at

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

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

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

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

Id. (citation omitted).

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

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

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

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

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

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

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

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

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

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

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

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

2005).

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

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

Id. (citations omitted).

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

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

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

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

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

plaintiff from arguing both theories of recovery.

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

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

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

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

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

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

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

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

employment does not preclude an action for both respondeat superior and

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

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

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

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

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

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

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

observed:

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

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

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

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

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

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

person injured”).

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

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

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

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

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

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

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

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

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

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

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

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

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

been named as a party”).

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

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

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

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

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

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

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

to a tortfeasor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

employment.

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

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

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

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

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

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

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

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

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

calculation of damages under our system of comparative fault.

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

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

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

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

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

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

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

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

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