December 6, 2017

Admitting Respondeat Superior Precludes Related Negligence Claims; Sedam v. 2JR Pizza Enterprises

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Many personal injury cases involve claims against a wrongdoer’s employer under theories of respondeat superior, negligent hiring, or negligent retention. And while these alternative theories of liability revolve around the same basic conduct, they have different elements and require different proof. And those differences are critical, because an employer’s admission of respondeat superior liability will preclude these alternative theories of recovery.

2JR Pizza owns a Pizza Hut, and Parker worked as a pizza-delivery person for Pizza Hut. While driving to a delivery, Parker’s car collided with the back of a scooter that Hamblin operated. Hamblin was tossed into the road, run over by another motorist, and killed.

Hamblin’s estate sued both Parker and Pizza Hut, and alleged that Pizza Hut was both liable under the doctrine of respondeat superior and that it negligently hired, trained, and supervised Parker. Pizza Hut admitted that Parker was acting within the course and scope of her employment at the time of the accident and moved for summary judgment on all claims but the respondeat superior claim. The trial court granted that motion, the Court of Appeals reversed, and the Indiana Supreme Court granted transfer.

The central issue in both the trial court and the Court of Appeals was the interaction between two cases: Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907), and Tindall v. Enderle, 162 Ind. App. 524, 320 N.E.2d 764 (1974). In Broadstreet, a businessman employed his son to deliver a message. An accident occurred, and the injured person sued the businessman for negligent hiring and under the doctrine of respondeat superior. The jury returned a general verdict for the plaintiff, and the businessman appealed, arguing that the trial court improperly instructed the jury to consider evidence of the son’s careless and reckless reputation for riding horses. The Indiana Supreme Court found no error.

In Tindall, a tavern employee shot and killed a patron. The patron’s estate sued the tavern for negligent hiring, negligent retention, and respondeat superior. Before trial, the tavern stipulated that the employee was acting within the course and scope of his employment at the time of the shooting, and moved in limine to exclude the employee’s prior assaults on patrons. The trial court granted the motion, and this decision was affirmed on appeal.

The question for the Court was whether Broadstreet controlled and, if not, what the rule should be regarding these types of claims.

First, the Court held that Broadstreet did not control the outcome of this case, because the businessman in that case contested his liability under the doctrine of respondeat superior. This fact prevented the Court from finding that Broadstreet expressly permits both claims when an employer admits liability under that doctrine.

The Court then looked to Tindall, and the fact that it’s the wellspring for “a line of Indiana precedent spanning nearly five decades.” It found that Tindall properly recognized

that a respondeat superior claim necessarily involves an act within the scope of employment, whereas negligent hiring claims require an act outside the scope of employment. Under each claim, the plaintiff seeks the same result—employer liability—and recovery is based on the same negligent act—the employee’s. To allow both claims would serve only to prejudice the employer, confuse the jury, and waste judicial resources when ultimately the result—that the employer is liable—is the same and the employer has stipulated as much. Such an admission exposes an employer to liability for any and all fault assessed to the employee’s negligence, and thus a negligent hiring claim becomes duplicative since a plaintiff may not recover twice for the same damage.

This result was not changed by Indiana’s adoption of the Comparative Fault Act because the simultaneous assignment of fault under these theories allow a jury to allocate fault to the employer “in excess of the employee’s negligence it already assumed in full. Conversely, a plaintiff’s fault remains unchanged whether an employee, employer, or a combination of the two is responsible for the injury.”

And the result was “bolstered” by the Court’s earlier adoption of Restatement (Second) of Torts § 317, which distinguishes between an employer’s duty to exercise reasonable care to control employees acting outside the scope of employment from theories of vicarious liability if the employee is acting within the scope of employment.

As a practical matter, I expect this case to support the tactical use of an admission of vicarious liability in personal injury cases. If the facts supporting a negligent hiring, retention, or supervision case are particularly strong, then a defendant may see a strategic benefit to making an admission that the employee was acting within the scope of employment. As Tindall shows, this may have the effect of preventing the admission of all of those bad facts. Plaintiffs will need to be creative when developing their cases to deal with such an admission.

Lessons:

  1. Liability under respondeat superior is inconsistent with liability for negligent hiring, retention, or supervision, and an admission that an employee was acting in the scope of employment when an injury occurred precludes these other negligence claims.
  2. The Indiana Supreme Court is inclined to look favorably on an older Indiana Court of Appeals decision which has led to a long line of precedent.