dissenting
I respectfully dissent. On appeal, this Court uses the same standard of review as the trial court in determining the propriety of a directed verdict. Northern Indiana Public Service Co. v. Sharp, 782 N.E.2d 848, 856 (Ind.Ct.App.2000). Judgment may be entered only if there is no substantial evidence or reasonable inferences to be drawn therefrom to support an essential element of the claim. Id.
A review of the record submitted on appeal shows that Hurlow submitted evidence from which reasonable inference could be made by a jury whether Maxwell's actions were within the scope of his employment. The question of whether an employee is acting within the seope of his employment is a question of fact to be determined in light of the evidence of a particular case. Trinity Lutheran Church, Inc. v. Miller (1983), Ind.App., 4651 N.E.2d 1099, trans. denied. |
The evidence shows that Maxwell reported for work to attend to his "opening bartender duties" when the accident happened so that an inference could be made that he was at work tending to his bartender duties. The evidence shows that the Nightclub expected its bartenders to joke around in order to promote its business. The evidence shows that the general manager knew that Maxwell brought the pellet gun to Mars Nightclub and the assistant manager played along with Maxwell's joking about shooting the pellet gun in the bar prior to Hurlow's injury.
Whether Maxwell's act of accidentally shooting the pellet gun was authorized horseplay that resulted in an accident and within the seope of his employment is a question for the jury. Clearly, Mars Nightelub did not authorize Maxwell to shoot Hurlow. But Mars Nightelub did authorize its employee to engage in "joking around" with the customers and did *1165not discourage the use of the pellet gun at work. Therefore, some of Maxwell's actions were authorized, at least for a time, by Mars Nightclub and therefore whether Maxwell's unauthorized acts were in the seope of employment was a question of fact for the jury. See Southport Little League v. Vaughan, 734 N.E.2d 261, 270 (Ind.Ct.App.2000) trans. denied.