In its first oral arguments as a temporarily four-person bench, the Indiana Supreme Court considered Thursday whether the plaintiff in a wrongful death case can bring employment-based claims against an employer if the employer has admitted the employee involved in the death was acting in the scope of their employment.
According to Karl Mulvaney, counsel for Pizza Hut in the case of Dale Sedam, et al. v. 2JR Pizza Enterprises, doing business as Pizza Hut, 39S05-1703-CT-00171, the answer is no. After Pizza Hut employee Amanda Parker struck the scooter driven by David Hamblin, knocking him to the ground and into the path of another car that would eventually hit and kill him, Pizza Hut admitted Parker was acting within the scope of her employment, Mulvaney said. Thus, Hamblin’s estate can only bring a wrongful death claim under the theory of respondeat superior, not employment-based claims including negligent hiring, training, supervision and retention, he said.
Holding otherwise, as the Indiana Court of Appeals did in its September opinion allowing Hamblin’s estate to move forward with its employment-based claims against Pizza hut, goes against established precedent in Tindall v. Enderle, 320 N.E.2d 764 (Ind. Ct. App. 1974), Mulvaney said. But Scott Faultless, counsel for Hamblin’s estate, said Tindall was wrongly decided and instead said under Indiana’s Comparative Fault Act, all persons who are at fault for causing or contributing to the cause of the harm must be included in the fault assessment analysis by the trier of fact.
Faultless told the justices Tindall was wrongly decided because in a tort claim such as this, he should be able to raise two arguments – first, that the employer was initially negligent in hiring the employee, and second, that the employee’s negligence was the “last clear chance” to avoid a wreck. Chief Justice Loretta Rush noted there were years of precedent that applied Tindall, but Faultless said the Comparative Fault Act had changed the course of the law.
Specifically, Faultless pointed to the 1995 amendment of the Comparative Fault Act, which held that the plaintiff’s employer can be assessed for fault based on negligent hiring. That rule cannot be a one-way street, the attorney said, so the rule must also apply to the defendant’s employer. In its amicus brief, the Indiana Trial Lawyers Association argued that if the 1995 amendment were a one-way street, it could create constitutional issues. Representatives for the ITLA joined Faultless in the courtroom Thursday, though they did not address the court.
Mulvaney, however, told the justices Hamblin’s estate could receive complete recovery under their respondeat superior claim, so there are no constitutional issues raised in the case. Additionally, faced with a question from Justice Geoffrey Slaughter about the possible implications of the court accepting the estate’s position, Mulvaney said it raises the possibility that employers could become less inclined to admit the employees were acting within the scope of their employment if such an admission would not preclude an employment-based claim.
But Faultless contested both of those points, telling the court that under the defendant’s proposed three-party fault assessment – which would include Parker, Hamblin and the driver of the other vehicle that struck Hamblin – the estate is at a greater risk of either being denied recover or having its recovery diminished. But if Pizza Hut is added to the assessment, the estate’s risk is reduced, he said.
Further, Faultless said it would be difficult for employers to deny the scope of employment if the facts clearly indicate the employees were acting in that scope.
Full oral arguments in the case can be viewed here.