Sandra Hogan, as Personal Representative of the Estate of Mary Hogan v. Magnolia Health Systems 41, LLC

• Court: Indiana Court of Appeals
• Decided: December 14, 2020
• Docket: 20A-CT-1101
• Status: Published

Opinion

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[.]

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 2 of 11 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.

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 3 of 11 [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.

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 4 of 11 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

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 5 of 11 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 Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 6 of 11 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

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 7 of 11 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.

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 8 of 11 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

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 9 of 11 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.

Court of Appeals of Indiana | Opinion 20A-CT-1101 | December 14, 2020 Page 10 of 11 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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