In answering a certified question from a federal judge, the Indiana Supreme Court held Wednesday that store managers who are not directly involved in a patron’s injury on store property cannot be held liable for negligence under Indiana law.
The high court answered the certified question from the U.S. District Court for the Northern District of Indiana in David Branscomb and Tammy Branscomb v. Wal-Mart Stores East, L.P. and James Clark, 20S-CQ-515.
The underlying personal injury case began in 2019, when David Branscomb tripped and fell over a wooden pallet in the garden department of a Huntington Walmart. Branscomb was injured, and he and his wife, Tammy, sued Walmart for damages in state court.
The Branscombs brought specific allegations against store manager Jim Clark, including claims for failure to properly hire, train and supervise employees, failure to have and/or implement proper safety policies and procedures, and failure to properly inspect and maintain the property in a safe condition.
Walmart sought to remove the case to federal court, alleging a fraudulent joinder in that Clark, as an Indiana resident, “was added solely to defeat federal diversity jurisdiction.” The company argued Clark was not working or physically present at the store on the day of the accident, and he “[does] not have the individual discretion to unilaterally determine safety policies or procedures for the store, but rather [is] given and follow[s] the directives and instructions by managers from higher up the Wal-Mart corporate ladder.”
Finding no clear precedent on the issue, Judge Holly Brady of the Indiana Northern District issued an order seeking the Indiana Supreme Court’s guidance on whether Clark could be liable as a defendant when he was not directly involved in Branscomb’s injuries. After accepting the certified question, Justice Steven David wrote for the unanimous court that the Branscombs cannot recover on any of their claims against Clark.
David noted first that the tort of negligent hiring, training and supervision should be pled against an employer, referencing Sedam v. 2JR Pizza Enterprises, LLC, 84 N.E.3d 1174 (Ind. 2017). Also, the tort does not apply when the tortfeasor is acting within the scope of their employment.
Thus, “Clark, an employee of Wal-Mart, cannot himself be liable to Plaintiffs under a theory of negligent hiring, training and supervision because he is not the employer and there is no indication or allegation that the pallet that caused Plaintiffs’ injuries was placed by an employee acting outside the scope of his employment,” David wrote.
Further, the Branscombs did not offer evidence to counter Clark’s statement that he did not have discretion to unilaterally determine safety policies, so they cannot recover from him on their claim for failure to have and/or implement safety policies.
But the “meat and potatoes” of the case, David wrote, was the claim against Clark for failure to inspect and maintain the property. The court ultimately ruled in Clark’s favor, finding that under the Restatement (Second) of Torts, Clark did not possess the land and was not “delegated sufficient control over the premises as to owe them a duty of care … .”
“Next, even assuming Clark is a person who has been ‘in occupation of land with intent to control it,’ it cannot be said that ‘no other person has subsequently occupied it with intent to control it’ as Wal-Mart will retain some ultimate control and in Clark’s absence someone else was in charge of the store,” David wrote. “Finally, the third option listed in the Restatement involving future entitlement to occupy the land cannot apply to Clark if someone else is entitled to occupy the land with intent to control it either.
“While Indiana case law does not explicitly provide (1) that a big box store can never delegate the duty of care to keep the store safe to a manager or (2) that the duty of care cannot be shared between the store and the manager, it seems that both are true based on the language of the Restatement and the reality that Wal-Mart itself has the right to come in and control the premises,” the justice continued. “And, importantly, there is no indication that Wal-Mart gave over control to Clark at any point.”
That position is supported by case law such as Bartholomew Cnty. v. Johnson, 995 N.E.2d 666, 675 (Ind. Ct. App. 2013), and Brazil Block Coal Co. v. Young, (1889), 117 Ind. 520, 20 N.E. 423, David said. However, he distinguished the case of Marshall v. Erie Ins. Exch., 923 N.E.2d 18 (Ind. Ct. App. 2010), aff’d on reh’g.
“The record before us does not reflect that Clark took over control of the Wal-Mart premises nor does it reflect that anyone, including the Branscombs, relied specifically on him to ensure the store was safe. Also, Clark’s position as store manager cannot, without more, subject him to liability,” the court held. “… While Clark maintaining the store for the benefit of Walmart may also benefit store patrons, Clark owed the duty to Wal-Mart, not store patrons, absent more. On this record, there is nothing more to make Clark liable to Plaintiffs.”