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