referring to this general rule in Biel as the “going and coming” rule and applying the rule to an employee driving home
How later courts described this case
- referring to this general rule in Biel as the “going and coming” rule and applying the rule to an employee driving home
Written by the judges who cited it.
The opinion
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
Attorneys for Seven Corners, Inc.
RYAN K. JOHNSON RICHARD R. SKILES
RANDALL L. JUERGENSEN JANET M. PRATHER
Keller & Keller, LLP Skiles DeTrude
Indianapolis, Indiana Indianapolis, Indiana
Jul 25 2014, 9:28 am
IN THE
COURT OF APPEALS OF INDIANA
PHYLLIS DODSON, as Special Administrator of )
the Estate of EBONI DODSON, Deceased, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A04-1305-CT-267
)
CURT D. CARLSON, CARMEL HOTEL )
COMPANY, d/b/a GRILLE 39, SEVEN )
CORNERS, INC., and CARMEL HOTEL, )
d/b/a RENAISSANCE HOTEL, )
)
Appellees-Defendants. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Theodore M. Sosin, Judge
Cause No. 49D02-1009-CT-41815
July 25, 2014
OPINION – FOR PUBLICATION
MAY, Judge
On February 22, 2010, Curt Carlson was driving home from a business meeting
over dinner and drinks at the Renaissance Hotel in Carmel, Indiana. He struck a disabled
vehicle on the side of I-465 and its driver, Eboni Dodson, was killed. Dodson’s estate
(hereinafter “Dodson”) sued Carlson’s employer, Seven Corners, Inc., and others. The
trial court granted summary judgment for Seven Corners1 on the ground there was no
issue of fact as to whether Carlson was acting in the scope of his employment when he hit
Dodson’s car. We affirm.2
FACTS AND PROCEDURAL HISTORY3
Carlson’s meeting began at approximately 5:15 p.m. at the hotel bar. Carlson and
his employer, Jim Krampen, typically conducted business meetings at the hotel, and there
were other occasions when meetings involved dinner and drinks. Carlson had four beers
while discussing business with Krampen, who owned Seven Corners, and a client.
Carlson was not “required” as a part of his employment to be at the business meeting, but
this was a “natural part of [his] employment.” (Appellant’s App. at 37.) The meeting
carried over into dinner, at which Carlson had two glasses of wine. Carlson was made
“point man on [the] business deal.” (Id. at 44). Krampen bought the alcohol. Carlson
1
Carlson and the hotel are also named defendants, but the summary judgment now being appealed
addressed only Seven Corners.
2
As we affirm summary judgment for Seven Corners, we do not address whether Dodson was entitled to
punitive damages.
3
We heard oral argument on June 19, 2014, at Trine University, Angola Indiana, before participants in
Hoosier Boys State. We thank Hoosier Boys State and Trine University for their hospitality, and
commend counsel on the quality of their oral advocacy.
2
left the hotel to drive home and the accident occurred a few minutes later. Carlson was
arrested on suspicion of operating a vehicle while intoxicated after he registered .12 on an
alcohol breath test machine.
Dodson brought a wrongful death and negligence action against Carlson, the hotel,
and Seven Corners. Dodson alleged Seven Corners was liable for Carlson’s actions under
a theory of respondeat superior. The trial court entered summary judgment for Seven
Corners, noting “It is assumed from the case citations of the parties that Indiana case law
has not addressed a circumstance involving an employee consuming alcohol within the
course of scope of [sic] employment, and then immediately engaging in a non-
employment related activity, such as driving home.” (Id. at 12–13.)
DISCUSSION AND DECISION
If pleadings, depositions, answers to interrogatories, admissions on file, and
testimony show there is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law, a motion for summary judgment will be
granted. Bell v. Northside Fin. Corp., 452 N.E.2d 951, 953 (Ind. 1983). The motion
should be resolved in favor of the party opposing it if there is any doubt as to the
existence of a material factual issue. Id. The contents of all pleadings, affidavits, and
testimony are liberally construed in the light most favorable to the non-moving party. Id.
Summary judgment is not an appropriate vehicle for the resolution of questions of
credibility or weight of the evidence, nor is it appropriate when conflicting inferences
may be drawn from undisputed facts. Id.
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The standard by which we review a summary judgment is well-established.
While the party losing in the trial court must persuade us the decision was erroneous, we
face the same issues as did the trial court and analyze them in the same way. Butler v.
City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). We carefully scrutinize a
summary judgment to assure the losing party is not improperly prevented from having its
day in court. Id.
An employer may have vicarious liability under the doctrine of respondeat
superior when an employee inflicts harm while acting within the scope of the
employment. Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). To be within the scope
of employment, “the injurious act must be incidental to the conduct authorized or it must,
to an appreciable extent, further the employer’s business.” Id. The facts need not show
that the acts of the employee were motivated solely or predominately by the desire to
serve the employer; an employee may be within the scope of his employment where his
conduct “is motivated to any appreciable extent by the purpose to serve the [employer].”
Gibbs v. Miller, 152 Ind. App. 326, 330, 283 N.E.2d 592, 595 (1972).
Carlson was not acting in the scope of his employment at the time of the accident.
The doctrine of respondeat superior is limited by the “going and coming” rule: “an
employee on his way to work is normally not in the employment of the corporation.”
Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617, 618 (1959). In Biel, Ethel Biel was
president of Biel, Inc. She was in the habit of taking an automobile belonging to the
corporation home at night and driving it back to work each morning. One morning as she
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was returning to work she hit a motorcyclist. The action was dismissed as to Ethel Biel
and maintained only against Biel, Inc.
Our Supreme Court said:
An essential part of the proof necessary to hold the appellant corporation
liable was that Ethel H. Biel, at the time and place of the accident, was the
appellant’s corporate agent, acting within the scope of her employment and
authority for and on behalf of the corporation as her principal; otherwise no
negligence may be imputed to the appellant corporation.
Id. at 70, 161 N.E.2d at 618 (emphasis added). Relying on the emphasized passage
above, Seven Corners asserts it is “uncontroverted that Carlson was entirely on personal
time when the accident occurred.” (Br. of Appellee, Seven Corners, Inc. at 5.)
Seven Corners also points to Dillman v. Great Dane Trailers, Inc., 649 N.E.2d
665, 668 (Ind. Ct. App. 1995), where we affirmed summary judgment for the employer.
The employee, Welliever, was driving to a Great Dane sports banquet. He was Great
Dane’s Employee Relations Supervisor, and his job was to coordinate and be present at
such functions. Welliever was to be the master of ceremonies. He was subject to
disciplinary action if he did not attend any social activity. We determined Welliever was
driving to work when the accident occurred and not acting in the scope of his
employment. Id.
Whether an employee was acting within the scope of his employment is a question
of fact for the jury only if there are conflicting facts, or conflicting inferences to be drawn
from the facts, regarding why the motorist was on the road at the time of the accident. Id.
at 668. The trial court noted the decisions on which Dillman relied:
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all involve a mixed trip or a mixed activity where part of the trip may be said
to serve the employee and part of the purpose of the trip may have been said to
have furthered the interest of the employer. In those cases of mixed elements
clearly the case should go to the jury because of the question of fact
considering the purpose of the trip and whether or not the employee was acting
within the scope of his employment at the time. Here, there was nothing about
the furthering of Great Dane’s interest that required Welliever to make this trip
other than the normal and usual going to work.
Id.
Dillman also argued the use of the word “normally” in Biel suggested that whether
an employee is acting within the scope of his employment when travelling to work is a
question of fact. We disagreed:
The use of the qualifying word “normally” merely allows for an exception
to the general rule for those instances where the employee is not just going
to work, but also performing an errand for or otherwise providing some
service or benefit to the company, other than merely showing up for work.
Id. (emphasis in original.)
That Carlson’s drinking before he drove home might have been in some way work-
related does not render inapplicable the “going and coming” rule. In Cunningham v.
Petrilla, 817 N.Y.S.2d 468, 469 (App. Div. 2006), the court noted the general rule that an
employee driving to and from work is not acting in the scope of his employment.
Cunningham was completing his construction shift on a highway when he was struck by a
car Petrilla was driving home from her employment at a bar. Cunningham pointed to
evidence the bar encouraged its employees to drink alcohol with customers to help
“promote social good will and business for the bar,” id., and he argued it was foreseeable
that an employee might become impaired in her ability to safely operate her automobile
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on leaving the bar.
The court noted Petrilla was not acting in furtherance of any duty she owed the
bar, nor did the bar exercise any control over her activities. Id. “Even assuming,
arguendo, that the Pub encouraged the consumption of alcohol by its employees, we
conclude that Petrilla was on a strictly personal venture and thus as a matter of law was
not acting within the scope of her employment at the time of the accident.” Id.
In Bell v. Hurstell, 743 So.2d 720, 721 (La. Ct. App. 1999), writ denied, 748 So.2d
1165 (La. 1999), Hurstell was involved with tour groups and events. She did networking
after hours in furtherance of her employer’s objectives. At the end of one business day
she met at her office with Andrew Messina, with whom Hurstell’s employer had a
business relationship. After the meeting was concluded, Messina drove Hurstell to a
lounge where she consumed alcohol Messina bought her. He then drove her to a party
given by another company with which Hurstell’s employer had a business relationship.
There she had one or more drinks. At approximately 11:00 p.m., Hurstell decided to go
home. As she was driving home she collided with the Bells’ parked car.
The Bells argued Hurstell’s intoxication occurred in the course and scope of her
employment. The court said:
According to this theory, any damages to which this intoxication could have
a causal relationship could be said to arise in the course and scope of her
employment, in spite of the fact that Hurstell was no longer acting in the
course and scope of her employment at the time she caused the damage.
Id. The court noted there was no evidence Hurstell was forced to consume alcohol by her
employer, either by means of physical threats or by threats of demotion or loss of
7
employment. Nothing prevented Hurstell from ordering non-alcoholic beverages.
Hurstell’s employer did not furnish or serve the alcohol:
We can see no public policy in holding an employer liable for damage
caused by an employee on the way home from work just because that
employee may have consumed alcohol as a matter of personal choice while
entertaining clients off premises after hours. . . . In other words, the
consumption of alcohol does not expand the definition of course and scope
of employment. To put it another way, an accident that would not normally
be considered as occurring during the course and scope of employment, will
not be considered as occurring during the course and scope of employment
merely because alcohol, which may have contributed to the accident, was
consumed (but not required to be consumed as a condition of employment)
while the employee-tortfeasor was acting in the course and scope of
employment.
Id. at 721-22.
We acknowledge Indiana decisions to which Dodson directs us that have found an
employee may be acting in the scope of his or her employment while driving. In Gibbs v.
Miller, Gibbs, a commission salesman, was not scheduled to work in the store but he had
made several appointments to see prospective customers. One involved a sale from
which Gibbs received a commission. He received a mileage reimbursement. While
enroute to his home for lunch Gibbs hit a car driven by Miller.
Gibbs was within the scope of his employment:
Gibbs was engaged in a task incidental to his everyday employment, that is,
calling on a prospective customer. In fact the sale was completed and
Gibbs received the commission therefrom. At the time of the accident
Gibbs was returning from this appointment. He was carrying samples and
supplies furnished by Sears and had the sales contract in his possession. He
had other appointments scheduled later in the day, and he telephoned Sears
immediately after the collision to cancel these appointments. He was within
Sears’ area of distribution and was exercising the discretion allowed him by
Sears in choosing the routes to take and times for scheduling his
8
appointments. He testified that he often did paper work at home. He also
testified that he was reimbursed for his mileage both to and from Elkhart.
152 Ind. App. at 330-31, 283 N.E.2d at 595.
Gibbs is distinguishable, as there is no evidence in the case before us that Dodson
was, at the time of the accident, in any way “engaged in a task incidental to his everyday
employment.” Id. Rather, he had completed all tasks incidental to his employment and
was going home. Nor do we find controlling decisions such as Gullett by Gullett v.
Smith, 637 N.E.2d 172, 175 (Ind. Ct. App. 1994), trans. denied, and State v. Gibbs, 166
Ind. App. 387, 392, 336 N.E.2d 703, 705 (1975), where the employees were on call
twenty-four hours per day and using employer-provided vehicles. In such cases, “the trier
of fact could find or infer that it was essential that [the employee] have the use of the car
since his duties entailed considerable driving and he was on call 24 hours a day.” Id. at
391-92, 336 N.E.2d at 705.
As there was no designated evidence that would suggest Carlson was outside the
“going and coming” rule, the trial court properly entered summary judgment for Seven
Corners, and we accordingly affirm.
Affirmed.
BAKER, .J., and BRADFORD, J., concur.
9