FILED
Dec 14 2020, 8:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul Petro Anthony B. Ratliff
Petro Law Firm LLC Patrick M. Cline
Fishers, Indiana Tuohy Bailey & Moore LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sandra Hogan, December 14, 2020
as Personal Representative of the Estate Court of Appeals Case No.
of Mary Hogan, Deceased, 20A-CT-1101
Appellant-Plaintiff, Appeal from the Hamilton
Superior Court
v.
The Honorable Todd L. Ruetz,
Special Judge
Magnolia Health Systems 41, Trial Court Cause No.
LLC, 29D03-1608-CT-6935
Appellee-Defendant,
Robb, Judge.
Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 1 of 11
Case Summary and Issue
[1] Sandra Hogan, as Personal Representative of the Estate of Mary Hogan,
(“Plaintiff”) appeals the trial court’s order granting summary judgment in favor
of Magnolia Health Systems 41, L.L.C. (“Magnolia”) and presents one issue for
our review: whether the trial court properly granted summary judgment in
favor of Magnolia. Concluding it did not, we reverse and remand.
Facts and Procedural History
[2] On August 10, 2016, Mary Hogan filed a Complaint for Damages against
“John Doe” and Magnolia alleging:
1. [O]n or about April 7, 2016, [she] was standing with her
walker near the buffet table in the dining hall of Crowne Point of
Carmel assisted living facility[.]
2. [A]n unknown defendant, John Doe, negligently caused
the buffet table to fall onto [her] walker, causing her to fall to the
floor and suffer serious injury.
3. That the Crown[e] Pointe of Carmel assisted living facility
is owned and/or operated by . . . Magnolia[.]
***
5. That the unknown defendant, John Doe, was in the course
and scope of his employment for . . . Magnolia[.]
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6. . . . Magnolia . . . is liable for damages to plaintiff for all
negligent acts committed by its unknown employee, John Doe,
in the course of his employment.
Appellant’s Appendix, Volume 2 at 19. Hogan alleged she suffered permanent
injuries as a result of Doe and Magnolia’s negligence (collectively,
“Defendants”) and incurred medical and special expenses as a direct and
proximate result of Defendants’ negligence. Magnolia subsequently filed its
Answer and Affirmative Defenses.
[3] At some point, Hogan sent Magnolia interrogatories and requests for
production. And on April 4, 2017, Magnolia responded with general objections
and attached the requested documents. Notably, at the time, Magnolia claimed
that “the identity of the Defendant John Doe has not yet been determined[.]”
Appellee’s Appendix, Volume II at 3. However, Magnolia also produced an
incident report, which provided the names of two staff members involved in the
incident at issue, including Jackie Woods, the dietary manager. The narrative
of the incident stated that the
Dietary Manager placed three additional charts on the curio
[cabinet]. The additional weight caused the front leg of the curio
to break. The curio cabinet tilted forward to the left, falling on
an empty dining room table, sliding the table towards the resident
who was standing next to [the] table and her rolling walker. The
rolling walker was pushed aside by the table causing the Resident
to [lose] her balance and fell [sic] to the floor hitting her head.
Id. at 19.
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[4] On April 14, Hogan died1 and an estate was subsequently opened. Hogan’s
daughter, Sandra, was appointed as the personal representative of the estate. In
October 2018, Plaintiff filed a Motion to Substitute Estate as the Real Party in
Interest. The trial court granted the motion and amended the case caption to
reflect Sandra Hogan, as Personal Representative of the Estate of Mary Hogan,
as the real party in interest.
[5] Following a hearing on March 19, 2019, the trial court ordered Plaintiff to
identify the “John Doe” defendant within 120 days. On July 22, Plaintiff filed
an Amended Complaint for Damages naming Jackie Young2 as the allegedly
negligent Magnolia employee and replacing the John Doe defendant with
Young.
[6] On September 23, 2019, Magnolia filed its Answer and Affirmative Defenses
admitting that Young was acting within the scope of her employment during
the incident but denying she acted negligently. Magnolia also asserted that
“[a]ny defense which bars, in whole or in part, Plaintiff’s claim against
Defendant Young equally bars Plaintiff’s claim against Magnolia. Plaintiff
cannot recover from Magnolia under theory of respondeat superior where Plaintiff
cannot recover against the individual employee.” Appellant’s App., Vol. 2 at
25. The same day, Young filed a motion to dismiss alleging that Plaintiff’s
1
There are no allegations that Mary Hogan died as a result of her injuries from the accident at issue in this
case.
2
Jackie Woods and Jackie Young are the same person.
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cause of action against her was barred by the two-year statute of limitations
because the alleged incident occurred on April 7, 2017 and Plaintiff filed its
Amended Complaint naming Young as a defendant on July 22, 2019 – more
than two years after the incident. The trial court subsequently agreed and
granted Young’s motion.
[7] In February 2020, Magnolia filed a motion for summary judgment and
supporting memorandum. Magnolia alleged it was entitled to judgment as a
matter of law because “an employer cannot be held liable under respondeat
superior unless the plaintiff’s claim can be maintained against the employee”
and thus, Plaintiff’s “respondeat superior action against [it], the employer, must
fail because [Plaintiff]’s claim against Ms. Young, the employee, is barred.”
Appellee’s App., Vol. II at 35, 38. In support of its motion, Magnolia
designated the following evidence: (1) Plaintiff’s original complaint; (2)
Plaintiff’s amended complaint; (3) Magnolia’s Answer and Affirmative
Defenses to Plaintiff’s Amended Complaint; (4) Young’s motion to dismiss;
and (5) the trial court’s order granting Young’s motion to dismiss. See id. at 43-
57.
[8] Plaintiff filed a response opposing Magnolia’s motion for summary judgment
but did not designate any evidence. Plaintiff argued that Magnolia’s motion
should be denied because Plaintiff could sue the employer, employee, or both
under the theory of respondeat superior. Magnolia filed a reply brief, and the
trial court held a hearing. Following the hearing, the trial court entered an
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order granting Magnolia’s motion for summary judgment and dismissing
Plaintiff’s action with prejudice. Plaintiff now appeals.
Discussion and Decision
I. Summary Judgment: Standard of Review
[9] Summary judgment is a tool which allows a trial court to dispose of cases where
only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
When reviewing the grant of summary judgment, we apply the same test as the
trial court: summary judgment is appropriate only if the designated evidence
shows there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR Pizza
Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). The moving party bears the
initial burden of showing the absence of any genuine issue of material fact as to
a determinative issue. Hughley, 15 N.E.3d at 1003.
[10] Once the movant for summary judgment has established that no genuine issue
of material fact exists, the nonmovant may not rest on its pleadings but must set
forth specific facts which show the existence of a genuine issue for trial. Perkins
v. Fillio, 119 N.E.3d 1106, 1110 (Ind. Ct. App. 2019). “A fact is ‘material’ if its
resolution would affect the outcome of the case, and an issue is ‘genuine’ if a
trier of fact is required to resolve the parties’ differing accounts of the truth, or if
the undisputed material facts support conflicting reasonable inferences.”
Hughley, 15 N.E.3d at 1003. As opposed to the federal standard which permits
the moving party to merely show the party carrying the burden of proof lacks
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evidence on a necessary element, Indiana law requires the moving party to
“affirmatively negate an opponent’s claim.” Id. (quotation omitted). Our
review is limited to the evidence designated to the trial court, T.R. 56(H), and
we construe all facts and reasonable inferences drawn from those facts in favor
of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013).
On appeal, the non-moving party carries the burden of persuading us the grant
of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003.
[11] The parties do not dispute the material facts of this case. Instead, this dispute
concerns a pure question of law, which we review de novo. Ramirez v. Wilson,
901 N.E.2d 1, 2 (Ind. Ct. App. 2009), trans. denied.
II. Respondeat Superior
[12] Plaintiff challenges the trial court’s grant of summary judgment in favor of
Magnolia. The crux of the dispute between the parties is whether the dismissal
of Young, the alleged negligent Magnolia employee, as a defendant
extinguishes Magnolia’s liability under the theory of respondeat superior. We
conclude it does not.
[13] The general rule is that vicarious liability can be imposed when an employer,
who is not liable because of his own acts, is found responsible for the wrongful
acts of his employee committed within the scope of employment. Barnett v.
Clark, 889 N.E.2d 281, 283 (Ind. 2008). 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
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sued for such damages at the option of the injured party. Henry B. Steeg &
Assocs., Inc. v. Rynearson, 142 Ind. App. 567, 569-70, 241 N.E.2d 888, 889
(1968). 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 Housing Auth., 45 N.E.3d 788, 792
(Ind. 2015). 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.” Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind.
Ct. App. 2014) (internal quotation omitted), trans. denied. “[F]or respondeat
liability to attach, there must also be underlying liability of the acting party.”
Id. at 109.
[14] Magnolia claims that a plaintiff “cannot chose to sue ‘either’ an employer or
employee under the theory of respondeat superior.” Appellee’s Brief at 22.
Contrary to Magnolia’s assertion, a plaintiff does, in fact, have the option of
suing either the employee, employer, or both. Henry B. Steeg & Assocs.,Inc., 142
Ind. App. at 570, 241 N.E.2d at 889. There is no requirement that a plaintiff
must sue the individual employee in order for an employer to be held liable for
the employee’s conduct under the theory of respondeat superior; an employee
only needs to have committed some act within the scope of employment for
which he could be sued. See e.g. Cox v. Evansville Police Dep’t, 107 N.E.3d 453,
458 (Ind. 2018) (plaintiffs sued the alleged negligent employees’ employers,
namely the cities of Evansville, Fort Wayne, and the Evansville Police
Department, not the individual employees); see also Southport Little League v.
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Vaughn, 734 N.E.2d 261, 267 (Ind. Ct. App. 2000) (plaintiffs sued the Little
League, an organization, for the alleged negligent acts of a volunteer for the
organization), trans. denied. As stated above, it is the employer’s relationship to
the wrongdoer that makes the employer liable. Hinchy, 21 N.E.3d at 107. An
injured party’s option to sue both essentially serves as a fail-safe for that
plaintiff. If an employee is found to have been acting in the scope of
employment, the plaintiff cannot recover from both the employee and
employer. However, if the employee is found to be negligent but was not acting
within the scope of employment, a plaintiff could still potentially obtain a
judgment against the employee. Here, Plaintiff filed suit against Magnolia
within the statute of limitations and did not have to file suit against Young or
name her as a defendant in the first place. Therefore, Young’s dismissal as a
defendant has no effect on Plaintiff’s respondeat superior action against
Magnolia.
[15] Magnolia cites several cases that have held, “[W]here the employee cannot be
held liable, no action based solely on respondeat superior is maintainable
against the employer.” Appellee’s Br. at 15-16 (collecting cases). In essence,
Magnolia’s position is that because Young was dismissed as a defendant and a
judgment cannot be entered against her individually, a cause of action based on
respondeat superior for Young’s conduct cannot be maintained against
Magnolia. This is not so. “Liable” means “[r]esponsible or answerable in law;
legally obligated.” Black’s Law Dictionary (11th ed. 2019). If our
jurisprudence meant that the employee had to be named as a defendant and a
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judgment had to be entered against the employee for which he or she is legally
obligated in order for the employer to be liable under respondeat superior, it
would have so held. Instead, it is clear that where an employee has acted
negligently, liability will be imputed to his or her employer by virtue of the
employee/employer relationship because of the wrongful conduct. Where an
employee is not negligent, his employer cannot be liable.
[16] Young’s dismissal as a defendant does not extinguish Magnolia’s potential
liability arising from Young’s conduct. Magnolia admits Young was acting
within the scope of her employment at the time of the incident and therefore, if
the trier of fact determines that Young acted negligently, her negligence will be
imputed to Magnolia, and a judgment will be entered accordingly. Because
Magnolia was not entitled to judgment as a matter of law and genuine issues of
material fact exist as to whether Young was negligent, the trial court improperly
granted summary judgment in favor of Magnolia. 3
Conclusion
[17] For the reasons set forth above, Magnolia was not entitled to judgment as a
matter of law on the issue of its respondeat superior liability. But genuine
issues of material fact exist regarding whether Young was negligent so as to
3
Plaintiff claimed that Young’s identity was unknown before the statute of limitations expired and therefore,
Plaintiff sued Magnolia and a “John Doe” defendant. Brief of Appellant at 8. To the extent this could be
construed as a genuine issue of material fact, it is not. Whether Young’s identity was known before or after
the expiration of the statute of limitations is irrelevant to the resolution of this case.
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impose such liability. Therefore, the trial court erred in granting summary
judgment in Magnolia’s favor. We reverse the trial court’s judgment and
remand for further proceedings consistent with this opinion.
[18] Reversed and remanded.
Crone, J., and Brown, J., concur.
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