The Court of Appeals just published Estate of William Bryant v. Mid-States Plastics, Inc., which dealt with the issue of Mid-States's vicarious liability for the death of Bryant. Bryant, a nonbusiness passenger, accompanied Daniel Edwards, President and General Manager of Mid-States, on a business trip to Indianapolis. During the return flight, Edwards negligently flew the plane into a guy wire of a cell phone tower. The Montgomery Circuit Court granted summary judgment in favor of Mid-States on Plaintiff's claim for vicarious liability.
The sole issue on appeal was whether there "is a genuine issue as to a material fact concerning Mid-States's vicarious liability to the Bryant Estate for Edward's negligence..." "If a negligent act of an employee occurs in the course and scope of the employer's business, an employer can be held vicariously liable. This liability extends to the employee's own vehicle if the employee's conduct at the time of the occurrence was within the scope of employment." The Court of Appeals ruled that a "factual finding must be made as to whether Mid-States had actual knowledge of Edward's practice of allowing a non-business passenger to accompany him on a business trip and failed to object." "If evidence of this knowledge is substantial enough, a question of fact is raised as to whether this knowledge and lack of objection make the nonbusiness passenger an invitee of the employer or constitutes a grant of apparent authority to the employee to offer these rides."
It was undisputed that Mid-States knew that Edward's wife accompanied Edwards from time to time on his business trips. The Court of Appeals concluded genuine issues of material fact existed as to Mid-States's knowledge of Edward's travel practices and Edwards authority in setting the travel policies.
Comment: The fact that Mid-States was aware that Edward's wife sometimes accompanied him would have been sufficient to overrule the summary judgment, at least initially. However, the Court of Appeals went on to conclude that "Mid-States offered no evidence of the extent of Edward's authority, except the affidavit of Chairman Long, which the trial court did not consider in granting summary judgment in Mid-States's favor." It further criticized Mid-States for its failure to present evidence "as to conversations between Edwards and Mid-States as to its policy regarding a non-business passenger ... to allow a determination as to whether it was a prohibited or accepted practice."
The fact that the trial court did not consider an affidavit in making its ruling does not mean the affidavit is not evidence that should be considered in determining if summary judgment is appropriate. Furthermore, the burden should remain on the Plaintiff to show that Edward's had apparent authority to invite non-business passengers, and not, as suggested, on Mid-States to prove the negative. Finally, a demonstration of "no genuine issue of material fact" does not mean that the moving party must eliminate all possibilities. A showing that there is a lack of "evidence" on an essential issue or element is sufficient. Mid-States was simply unable to make such a showing on the issue of apparent authority.