Kapitan et al v. D T Chicagoland Express Inc

Filing 35

OPINION AND ORDER granting 20 Motion for Summary Judgment. The Clerk is ORDERED to DISMISS the case WITH PREJUDICE and to CLOSE this case. Signed by Judge Rudy Lozano on 10/15/2013. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BETTY KAPITAN, et al.,
Plaintiffs,
vs.
DT CHICAGOLAND EXPRESS
INC., d/b/a CXI
TRUCKING, et al.,
Defendants.

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CAUSE NO. 2:12-CV-321

OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment, filed by Defendant, D.T. Chicagoland Express d/b/a CXI
Trucking (hereinafter “CXI Trucking”), on April 26, 2013 (DE #20).
For the reasons set forth below, the motion is GRANTED.

The Clerk

is ORDERED to DISMISS the case WITH PREJUDICE and to CLOSE this
case.

BACKGROUND
Undisputed Factual Background
On September 2, 2010, Plaintiff, Betty Kapitan, was working at
Brady’s This Is It Store when a delivery truck from Defendant, CXI
Trucking, arrived at the back of the store to make a delivery.

The

driver of the truck, Robert Norris, began unloading pallets full of

shipment onto a lift at the back of the truck.

Plaintiffs allege

the pallets were improperly stacked on the automated lift so that,
while the driver operated it, a pallet fell off the lift.

At the

time, unbeknownst to the driver, Plaintiff, Betty Kapitan, was
walking behind the truck.

The pallet fell off the lift and as a

result, Plaintiff sustained injuries that are the basis for this
action.

Procedural Background
This case was removed from state court to this Court on August
9, 2012.

(DE #2.)

On October 1, 2012, Plaintiffs filed an amended

complaint adding Robert Norris as a defendant (DE #9). On February
14, 2013, the Clerk issued a notice indicating that service of
process had not been accomplished as to Norris.

(DE #14.)

The

Clerk warned Plaintiffs that a failure to have process issued and
service made within 120 days from the filing of the complaint would
be

sufficient

to

warrant

dismissal

of

the

action,

without

prejudice, for failure to complete process pursuant to Rule 4(m) of
the Federal Rules of Civil Procedure.

Id.

Plaintiffs failed to

take action by the March 1, 2013, deadline set by the Clerk.

Id.

Consequently, Defendant, Robert Norris, was dismissed from the case
without prejudice on April 9, 2013; approximately 190 days after
filing the amended complaint. (DE #17.)
On

June

10,

2013,

Plaintiffs

2

filed

a

Motion

for

Reconsideration pursuant to Federal Rules of Civil Procedure 4(m),
asking this Court to reconsider its order dismissing Robert Norris
for failure to complete service of process.

(DE #31.)

denied the Motion to Reconsider on July 10, 2013.

The Court

(DE #34.)

Defendant filed the instant Motion for Summary Judgment on all
claims of the complaint on April 26, 2013.

(DE #20.) Defendant

argues that the Court should grant its motion for summary judgment
because the employee responsible for the injuries, Norris, has been
dismissed as a defendant and therefore, under the doctrine of
respondeat superior, a claim cannot be maintained against the
employer if the employee cannot be held individually liable.
Furthermore, Defendant believes that the second claim for negligent
hiring and training is redundant and duplicative under Indiana law
and therefore, Defendant cannot be held liable.

DISCUSSION
Pursuant

to

Rule

56(a)

of

the

Federal

Rules

of

Civil

Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.

See

Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).

In other words, the record

must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th

3

Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).

In deciding a motion for summary judgment, a court

must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas de
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
“the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits,” if any, that the
movant believes “demonstrate the absence of a genuine issue of
material fact.”

Celotex, 477 U.S. at 323.

Once the movant has met

this burden, the nonmovant must support its assertion that a fact
is genuinely disputed by citing to particular parts of materials in
the record.

Fed. R. Civ. P. 56(c); Becker v. Tenenbaum-Hill

Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
“Whether

a

fact

is

material

depends

on

the

substantive

law

underlying a particular claim and ‘only disputes over facts that
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.”

Walter v.

Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (emphasis in original)
(citing Anderson, 477 U.S. at 248).
“A party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
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material fact which requires trial.”

Beard v. Whitley Country

REMC, 840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see
also Hickey v. A.E. Staley Mfg., 955 F.2d 1385, 1391 (7th Cir.
1993).

Therefore, if a party fails to establish the existence of

an essential element on which the party bears the burden of proof
at trial, summary judgment will be appropriate. In this situation,
there can be “’no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the
nonmoving

party’s

immaterial.”

case

necessarily

renders

all

other

facts

Celotex, 477 U.S. at 323.

Respondeat superior
The doctrine of respondeat superior imposes liability “on an
employer for the wrongful acts of his employee which are committed
within the scope of employment.”

Stropes v. Heritage House

Children’s Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind.
1989).

The test is whether the employee's actions “were, at least

for a time, authorized by his employer.”

Id. at 250 (quoting Gomez

v. Adams, 462 N.E.2d 212, 223 (Ind. Ct. App. 1984)).

If there is

a sufficient association between the authorized and unauthorized
acts, then the unauthorized acts can be considered within the scope
of employment.
However,

Id. at 249-50.
where

the

employee

cannot

be

held

liable

individually, an action only based upon respondeat superior is not

5

maintainable

against

the

employer.

See

Riffle

v.

Knecht

Excavating, Inc., 647 N.E.2d 334, 337 (Ind. Ct. App. 1995) (finding
because employee could not be held liable, “no action based solely
on respondeat superior is maintainable against his employer”); see
also

Sharp

v.

Bailey,

521

N.E.2d

368,

371

(Ind.

Ct.

App.

1988)(superseded on other grounds) (“Our decisions make clear that
where the employee cannot be held liable no action based solely on
respondeat

superior

is

maintainable

against

his

employer.”);

Roberts v. Chaney, 465 N.E.2d 1154, 1160 (Ind. Ct. App. 1984)
(overruled on other grounds).

In this case, CXI Trucking argues

that Plaintiffs cannot succeed on a claim of respondeat superior
because the employee responsible for the injuries, Norris, was
dismissed as a defendant from this case.
It is true that Norris was dismissed from this action Plaintiffs failed to properly serve process on Robert Norris within
the time frame required by the statute of limitations.

Robert

Norris was dismissed from the case without prejudice on April 9,
2013; approximately 190 days after filing the amended complaint.
(DE #17.)

On June 10, 2013, Plaintiffs filed a Motion for

Reconsideration under Federal Rules of Civil Procedure 4(m), asking
the Court to find good cause to extend the time for serving Norris.
This Court issued an order denying the motion, finding because
Plaintiffs never requested an extension of time to serve process,
the “good cause” standard was inapplicable, and counsel’s family

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problems did not demonstrate extraordinary circumstances to get
relief under Rule 60(b) from dismissal for lack of prosecution.
(DE #34.)

Therefore, Robert Norris is no longer a named defendant

in this case, and he cannot be held individually liable for the
injuries that resulted to Plaintiffs. Indiana law is clear in this
regard: when an employee cannot be held liable under the doctrine
of respondeat superior, a claim cannot be maintained against the
employer.

See, e.g., Riffle, 647 N.E.2d at 337; Sharp, 521 N.E.2d

at 371; Roberts, 465 N.E.2d at 1160.
Plaintiffs cite to two medical malpractice cases for the
proposition that “employers can be held vicariously liable even
though

the

employee.”

statute

of

limitations

barred

suit

against

the

(DE #26, pp. 4-6; Helms v. Rudicel, 986 N.E.2d 302

(Ind. Ct. App. 2013); Columbus Reg’l Hosp. v. Amburgey, 976 N.E.2d
709 (Ind. Ct. App. 2012).)

As conceded by Plaintiffs, in both

Helms and Amburgey, the issue was whether a medical institution was
liable for its doctors’ malpractice claims.

(DE #26, p. 5.)

In

Amburgey, the court noted that “some of our sister states have
concluded that the running of a statute of limitations with respect
to a physician does not preclude a complaint against a hospital on
a theory of vicarious liability and apparent authority.” Amburgey,
976 N.E.2d at 716 (citations omitted). Yet the medical malpractice
context has been treated differently, and the Indiana Court of
Appeals has “acknowledge[d] the decisions cited by [defendant] that

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hold, in other contexts, that a principal cannot be vicariously
liable if an action could not be maintained against the tortfeasor
agent.”

Helms, 986 N.E.2d at 313.

Here, CXI Trucking cites two

main cases holding that because the employee could not be held
liable, no action based upon respondeat superior is maintainable
against the employer.

See Riffle, 647 N.E.2d at 337-38; Cole v.

Shults-Lewis Child and Family Servs., Inc., 677 N.E.2d 1069, 1073
n. 4 (Ind. Ct. App. 1997) (vacated in part) (noting “an employer
cannot be held liable under respondeat superior unless the claim
can be maintained against the employee.”).

Both Riffle and Cole

are personal injury negligent actions, like this one, thus they are
controlling.
Plaintiffs try to distinguish Riffle and Cole, arguing that
here, it has not been determined that a claim cannot be maintained
against Norris - rather the Court simply dismissed him without
prejudice due to a failure to timely serve.

As Defendant points

out, though, in addition to being dismissed for not being timely
served, the statute of limitations has run with regard to Norris.
Under Indiana law, the applicable statute of limitations expired on
September 2, 2012, because the accident occurred on September 2,
2010.

“An action for injury to person or character . . . must be

commenced within two (2) years after the cause of action accrues.”
(Ind. Code 34-11-2-4.)

This case is analogous to Cole, where the

court concluded that a negligence action could not be maintained

8

against

the

employee

because

the

statute

of

limitations

had

expired; therefore, the plaintiff also could not pursue an action
against the employer for respondeat superior.

Cole, 677 N.E.2d at

1073-74.
In sum, CXI Trucking cannot be held liable for the acts of
Robert Norris because Plaintiffs do not have a claim against
Norris.

Therefore, Defendant’s motion for summary judgment for

negligence based upon the doctrine of respondeat superior is
GRANTED.

Negligent Hiring and Training
Alternatively, Plaintiffs argue that even if they cannot
maintain an action for negligence against CXI Trucking, they still
have a claim for negligent hiring.

Indiana does recognize a cause

of action against an employer based on negligent hiring and
training of an employee.
(Ind. Ct. App. 1974).

Tindall v. Enderle, 320 N.E.2d 764, 767

Employer liability under negligent hiring

and training is a separate and distinct cause of action from
respondeat superior, and it “accrues when an employee steps beyond
the recognized scope of employment to commit a tortious injury upon
a third party.”

Clark v. Aris, Inc., 890 N.E.2d 760, 765 (Ind. Ct.

App. 2008) (internal quotation marks omitted) (quoting Tindall, 320
N.E.2d at 767-68).

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Although it is an alternate theory of liability, a negligent
hiring and training claim has “no value where an employer has
stipulated

that

employment.”

his

employee

was

within

the

scope

of

his

Tindall, 320 N.E.2d at 768; see also Lange v. B.P.

Motor. Exp., Inc., 257 F. Supp. 319, 324 (N.D. Ind. 1966) (finding
claim of negligent hiring and training “wholly unnecessary to
plaintiffs’

right

to

recover”

where

plaintiff

also

alleged

respondeat superior claim); Davis v. Macey, 901 F. Supp. 2d 1107,
1111-12 (N.D. Ind. 2012).

This is because an employer “is already

responsible for the actions of its employees that were committed
within the scope of their employment” under the doctrine of
respondeat superior.

Board of Sch. Comm’rs v. Pettigrew, 851

N.E.2d 326, 332 (Ind. Ct. App. 2006); Konkle v. Henson, 672 N.E.2d
450, 456 (Ind. Ct. App. 1996).

As the Court explained in Tindall:

Proof of negligence by the employee on the
particular occasion at issue is a common
element to the theories of respondeat superior
and negligent hiring.
Under the theory of
respondeat
superior,
however,
when
the
employer has stipulated that the employee was
acting within the scope of his employment in
committing the act, upon proof of negligence
and damages, plaintiff has successfully
carried his burden of proof against the
negligent employee’s employer. Proof of the
additional elements of negligent hiring under
such circumstances is not relevant to the
issues in dispute, is wasteful of the court’s
time and may be unnecessarily confusing to a
jury.
The sole possible advantage to the
pursuit of a negligent hiring theory in cases
such as that before us would be the potential
assessment of punitive damages.

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Tindall, 320 N.E.2d at 768.

Here, the Plaintiffs have not

alleged any intentional tort or requested punitive damages, two
circumstances that the court in Simmons acknowledged as justifying
an

exception

to

the

Lange-Tindall

rule.

Simmons,

Inc.

v.

Pinkerton’s, Inc., 762 F.2d 591, 602 (7th Cir. 1985); see also
Davis, 901 F. Supp. 2d at 1112.
And yet, because the respondeat superior count has been
dismissed by this Court, the negligent hiring and retention claim
is arguably no longer unnecessary or duplicative (it is Plaintiffs’
only remaining theory of liability).

Therefore, this Court will

continue the analysis as to whether summary judgment is warranted
on this claim.
First, the “tort of negligent hiring and supervision is
inapplicable when an employee is acting within the scope of
employment.” Cottle v. Falcon Holdings Mgmt., LLC, No. 2:11-CV-95PRC, 2012 WL 4361552, at *21 (N.D. Ind. Sept. 24, 2012) (citing to
the Restatement (Second of Torts § 317, cmt. A (1965)). Plaintiffs
argue there is a dispute whether Norris was acting within the scope
of his employment - they contend although CXI Trucking admits it
employed Norris, CXI Trucking contradicts that admission when it
denies responsibility for the injuries under the doctrine of
respondeat superior, and omits from its answer the phrase “scope of

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employment.”

(DE #26, p. 8.)1

However, in its Answers to the

Amended Complaint, Defendant admits that CXI Trucking employed
Norris at the time of the injury, and that Norris was operating the
truck “involved in the incident.”

(DE #11, ¶¶ 3.)

Moreover,

Plaintiffs’ allegations all concern events which appear to be
during work hours and within the scope of Norris’ employment.

All

of these facts indicate that Norris was acting within the scope of
his employment with CXI Trucking.

CXI Trucking has effectively

admitted that it was acting through its agent and employee Norris,
during the delivery.

Even assuming, arguendo, that there was a

material dispute as to whether CXI Trucking has stipulated that
Norris was acting within the scope of his employment (and this
Court believes there is not), as discussed below, summary judgment
would still be proper.
“In certain circumstances . . . it may be appropriate to
consider evidence of negligent hiring even though the employer has
admitted

that

the

employee

was

acting

within

the

scope

of

employment.” Davis, 901 F.Supp.2d at 1111. Indiana law recognizes
a cause of action against an employer for negligent hiring and
retention of an employee.

Cottle, 2012 WL 4361552, at *21 (citing

Levinson v. Citizens Nat’l Bank of Evansville, 644 N.E.2d 1264,
1

The full answer is: “Defendant admits that the driver was its employee
but denies the remaining allegations in paragraph 16 [that under the doctrine
of respondeat superior CXI Trucking is responsible for the driver’s actions]
as they contain impermissible unsupported conclusions of law.” ( DE #11, ¶
16.)

12

1269 (Ind. Ct. App. 1994)).

For those claims, “a plaintiff must

demonstrate that the employer knew the offending employee had a
‘habit of misconduct’ at the time of the hiring or retention.”

Id.

Thus, Plaintiffs must prove that, “after [Norris] was hired,
Defendants knew, should have known, or had reason to know of the
individual’s habit of misconduct and retained the individual as an
employee.”

Id. at *22.

Here, there is nothing in the complaint, and nothing in the
record, alleging any facts whatsoever that Norris had any habits of
misconduct. Indeed, Plaintiffs concede that “[t]he record contains
no evidence as to whether Norris had habits of misconduct and
whether CXI Trucking knew or should have known of Norris’s habits
of misconduct.” (DE #26, p. 9.) Plaintiffs are mistaken that this
creates a genuine dispute of material fact.

At this stage of the

proceedings, the nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material facts,”
and must “come forward with specific facts showing that there is a
genuine issue for trial.”
Radio

Corp.,

475

U.S.

Matushita Elec. Indus. Co. v. Zenith

574,

586-87

(1986)(quotation

omitted)

(emphasis in original); Cottle, 2012 WL 4361552, at *22 (granting
summary judgment on claim of negligent hiring and retention where
plaintiff failed to raise a genuine issue of material fact).

The

Court finds that Plaintiffs have not raised a genuine issue of
material fact as to the claim of negligent hiring and retention.

13

Accordingly, Defendant’s motion for summary judgment as to the
claim for negligent hiring and training is GRANTED.

CONCLUSION
For the aforementioned reasons, Defendant’s motion for summary
judgment (DE #20) is GRANTED.

The Clerk is ORDERED to DISMISS the

case WITH PREJUDICE and to CLOSE this case.

DATED: October 15, 2013

/s/RUDY LOZANO, Judge
United States District Court

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