Sony DADC US Inc. and Bradley J. Brown v. Mark Thompson ( 2016 )

FILED
Jul 13 2016, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
David J. Demers Christopher B. Gambill
Cooke Demers, LLC Wagner, Crawford & Gambill
New Albany, Ohio Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sony DADC US Inc. and July 13, 2016
Bradley J. Brown,1 Court of Appeals Case No.
Appellants-Defendants, 84A01-1507-CT-892
Appeal from the
v. Vigo Superior Court
The Honorable
Mark Thompson, Lakshmi Reddy, Judge
Appellee-Plaintiff. Trial Court Cause No.
84D02-1209-CT-8121
Kirsch, Judge.
1
We note that Brown does not file an appellate brief with this court to appeal the jury’s verdict of liability.
However, “[u]nder Indiana Appellate Rule 17(A), ‘[a] party of record in the trial court or Administrative
Agency shall be a party on appeal.’” Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 162
(Ind. Ct. App. 2006) (quoting Ind. Appellate Rule 17(A)).
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[1] This case originates from a complaint filed by Mark Thompson (“Thompson”)
alleging negligence and vicarious liability against Bradley J. Brown (“Brown”)
and his employer, Sony DADC US Inc. (“Sony”). Thompson worked as a
security guard for Securitas, a private contractor, and provided building security
for Sony at its Terre Haute, Indiana facility. While walking across the parking
lot at Sony on March 23, 2012, Thompson was struck by a car driven by
Brown, who had clocked out for the day, but had yet to leave the Sony property
because he was planning to place personal items in the recycling area provided
by Sony. In a pretrial order, the trial court found as a matter of law that Sony
was vicariously liable for Thompson’s injuries because Brown was within the
scope of his employment at the time of the accident. Following a jury trial,
Sony appeals the trial court’s order, raising the following restated and
consolidated issues for our review:
I. Whether the trial court erred when it denied Sony’s motion for
summary judgment and granted Thompson’s motion for partial
summary judgment as to the issue of whether Brown was acting
within the scope of his employment at the time of the accident;
and
II. Whether the trial court erred in allowing Thompson to
present a claim for lost earning opportunity and in giving a jury
instruction on lost earning capacity.
[2] We reverse and remand.
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Facts and Procedural History2
[3] Sony is a disc and digital solution provider for the entertainment, education,
and information industries, offering optical media replication services, digital
and physical supply chain solutions, and software services. Appellant’s App. at
33. Sony’s corporate network consists of service offices, optical media
production, distribution, and digital facilities throughout the world. Id. Sony
has a manufacturing facility located in Terre Haute, Indiana. Ken Walker
(“Walker”) was the Manager of Facilities at the Terre Haute facility until his
retirement in 2011. During his time at Sony, Walker was one of the Sony
employees who initiated a process that allowed Sony to become ISO 14001
certified. ISO is an acronym for the International Standards Organization, and
ISO 14001 dealt with the development of environmental practices among the
Sony employees. One advantage to becoming ISO certified was that Sony
could sell and market its products as coming from an ISO compliant company.
[4] In the late 1990s, Sony elected to become ISO certified, and part of the
certification process involved creating an employee recycling center and
educating employees as to the importance of recycling. To further this
endeavor, Sony established its employee recycling center in November 2007.
Once ISO certified, Sony was subject to audits to confirm that the recycling
2
We held oral argument on June 15, 2016 at Purdue University’s Krannert School of Executive
Management. We thank counsel for their preparation and argument, and we commend them on their
outstanding advocacy. We also thank the students for their insightful questions and comments posed after,
but not specifically related to, the oral argument.
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center was still operational and that Sony remained compliant. Kelly Yochum
(“Yochum”) was an Environmental and Safety Engineer, who began working
at Sony in 2007 and reported to Walker. Yochum agreed that ISO 14001
certification was an environmental compliance program, and participation in
the program provided benefits to Sony because certain purchasers of products
were only interested in buying ISO certified products. Appellee’s App. at 25.
Sony published a magazine called “The Insider,” which was part of the
communication component of the ISO certification initiative; this magazine,
posters, and other publications were used to convey to Sony employees the
importance of recycling. Numerous business journal articles supported the
testimony by Walker and Yochum that ISO certification yielded great benefits
to businesses that became certified.
[5] Brown was employed as an operator in the DVD packaging department at
Sony. Brown stated that he became aware of Sony’s recycling program when
he was hired and that, during his orientation, Sony informed him of the
recycling bins and their location. Brown was also aware of the ISO 14001
certification and that Sony sought to be compliant with the program.
[6] Securitas is a private contractor hired by Sony to provide building security.
Thompson was hired by Securitas as a security guard and assigned to work at
the Sony facility in Terre Haute. Thompson worked at Sony from January
2010 until March 23, 2012. Before working for Securitas, Thompson’s career
was in the graphic arts industry. He worked in various locations in and around
Indiana, and most recently, prior to working for Securitas, he worked for a local
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company in the graphic arts industry for fifteen years. Approximately two
weeks before March 23, 2012, Thompson was offered a job in his area of
training and experience with Galloway Photo, and at the time of the accident,
he had given his two-week notice to Securitas and was to begin his new job on
April 1, 2012.
[7] On March 23, 2012, Thompson was working in his position as a security officer
at Sony. On the morning of March 23, it had rained, but was sunny and clear
in the afternoon. From his office, later that afternoon, Thompson observed a
car pull up to and park along a fence where cars were not permitted to park. He
saw the driver get out of the car, lock the vehicle, and walk away. When the
driver did not return, Thompson decided to walk out to the car to ask the driver
to move the car. As Thompson walked from his office and across the parking
lot along the fence and through the loading dock area, he was struck by a car
driven by Brown. Thompson testified that he did not look around as he walked
toward the parked car as he was focused on the car impermissibly parked along
the fence. Tr. at 340-41. He further acknowledged that he did not have to walk
through the loading dock area and could have taken a different route by
walking through the plant to an exit door. Id. at 319-20.
[8] Brown had clocked out on March 23 at approximately 5:30 p.m. and walked
out to his car in the parking lot. When he got to his car, he noticed that the
windows were fogged up from the rain that had fallen earlier that day, so he
turned on his defroster to clear the windows. However, his windows had not
completely cleared when he started to drive away. As Brown started his car, he
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intended to drive around the fence that Thomson was walking toward and
make a U-turn to get to the recycling center to drop off his personal recyclables.
While Brown was driving around the fence, his car struck Thompson. Brown
testified that he did not see Thompson before he struck him. Brown
acknowledged that the sole reason he was in the area where Thomson was
struck was to come around the fence to go to the recycling center.
[9] Daniel Kirkman (“Kirkman”) was employed at Sony as a temporary worker on
March 23, 2012. He was driving into the parking lot to clock in for work when
he observed the accident. He saw the car driven by Brown traveling south
along the fence and attempting to make a U-turn at the end of the fence when
Thompson was struck. Kirkman testified that, from his perspective, nothing
precluded Thompson from seeing Brown’s car, and likewise, nothing precluded
Brown from seeing Thompson; Kirkman also stated that, from his perspective,
there was nothing Thompson could have done to avoid the accident. Tr. at
170.
[10] As a result of the accident, Thompson sustained fractures around his knee cap
that required surgery and a recovery period where he could not put any weight
on his leg for about six or seven weeks. About four or five weeks after the
accident, Thompson was able to return to work for Securitas using a
wheelchair; at that time, Securitas no longer had a contract with Sony, so
Thompson worked at Great Dane, where he worked until January 2013 when
he had additional medical treatment related to the accident. Thompson later
required knee replacement surgery, which was performed in September 2013,
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and Thompson was released to return to work in December 2013. Because of
Thompson’s injuries sustained in the accident, he was unable to start his new
job at Galloway Photo, and the position was offered to another person.
Because of a pre-existing heart condition, Thompson retired on January 1,
2015.
[11] On September 17, 2012, Thompson filed a complaint against Brown and Sony
alleging negligence against Brown and vicarious liability against Sony.
Specifically, Thompson alleged that Brown was negligent in causing the
accident that resulted in Thompson’s injuries, and that, at the time of the
accident, Brown was acting in the course and scope of his employment with
Sony. On June 2, 2014, Thompson filed a motion for partial summary
judgment, requesting the trial court to find, as a matter of law, that Sony was
vicariously liable for Brown’s conduct. Sony responded and filed its own
motion for summary judgment. A hearing was held on the motions, and the
trial court issued an order on September 4, 2014, granting Thompson’s motion,
finding as a matter of law that Brown was acting within the scope of his
employment with Sony at the time the accident occurred and that, if a jury
eventually found Brown to be at fault for causing the damages to Thompson,
Sony would be vicariously liable for the damages. The trial court also denied
Sony’s motion for summary judgment. On May 21, 2015, Sony filed a motion
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for reconsideration of the trial court’s order,3 which was subsequently denied.
A jury trial was held beginning on June 24, 2015. Both Thompson and Sony
submitted proposed final jury instructions to the trial court. On the issue of
damages, the trial court instructed the jury on the definition of lost earning
capacity, utilizing an instruction taken from comment number three of pattern
instruction 703, “General Elements of Damages,” from the Indiana Model
Civil Jury Instruction. Tr. at 572-73.
[12] At the conclusion of the trial, the jury returned a verdict awarding damages to
Thompson in the amount of $500,000, but found Thompson to be 50% at fault.
Judgment was entered in favor of Thompson and against Brown and Sony in
the amount of $225,149.4 Sony now appeals.
Discussion and Decision
I. Summary Judgment
[13] When reviewing the grant of summary judgment, our standard of review is the
same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of
Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in
3
The Honorable Phillip Adler was the trial court judge at the time of the summary judgment order; however,
he retired subsequently, and the Honorable Lakshmi Reddy became the new trial court judge.
4
Prior to trial, Brown filed for Chapter 7 bankruptcy protection and was discharged of any final obligation
owed to Thompson other than from his insurer. Before the commencement of trial, the parties entered into a
“Covenant Not to Execute,” wherein it was agreed that the limits of Brown’s insurance, $25,000, would be
set off from any jury verdict. Appellant’s App. at 104.
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the shoes of the trial court and apply a de novo standard of review. Id. (citing
Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our
review of a summary judgment motion is limited to those materials designated
to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d
461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate
only where the designated evidence shows there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on
the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view
the pleadings and designated materials in the light most favorable to the non-
moving party. Id. Additionally, all facts and reasonable inferences from those
facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.
Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied).
[14] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. Id. Where
a trial court enters specific findings and conclusions, they offer insight into the
rationale for the trial court’s judgment and facilitate appellate review, but are
not binding upon this court. Id. We will affirm upon any theory or basis
supported by the designated materials. Id. When a trial court grants summary
judgment, we carefully scrutinize that determination to ensure that a party was
not improperly prevented from having his or her day in court. Id.
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[15] Sony argues that the trial court erred in granting Thompson’s motion for partial
summary judgment and holding as a matter of law that Brown was acting in the
scope of his employment at the time of the accident and in denying Sony’s own
motion for summary judgment because Sony claims that Brown was not acting
within the scope of his employment with Sony at the time of the accident.
Specifically, Sony contends that, at the time of the accident, Brown had clocked
out of work and was leaving for the day, but before leaving Sony’s property, he
planned to stop at the on-site recycling containers to deposit his personal
recycling items. Sony asserts that the recycling containers were provided as a
benefit to employees of Sony to use for the collection of their personal
recyclables, and Brown was not in any way required to use them as part of his
employment. Because Brown was on his own time and not in the service of
Sony at the time the accident occurred, Sony urges that the trial court erred in
finding that Brown was acting in the scope of his employment and that
summary judgment should have been granted in Sony’s favor, or alternatively,
the issue of respondeat superior should have been decided by the jury.
[16] Vicarious liability will be imposed upon an employer under the doctrine of
respondeat superior when an employee has inflicted harm while acting within
the scope of employment. Walgreen Co. v. Hinchy, 21 N.E.3d 99, 106-07 (Ind.
Ct. App. 2014) (citing Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008)), aff’d on
reh’g, trans. denied. “To fall 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. at 107. An act “is incidental to
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authorized conduct when it ‘is subordinate to or pertinent to an act which the
servant is employed to perform,’ or when it is done ‘to an appreciable extent, to
further his employer’s business.’” Bushong v. Williamson, 790 N.E.2d 467, 473
(Ind. 2003) (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453
(Ind. 2000)) (internal citations omitted). “Acts done ‘on the employee’s own
initiative, with no intention to perform it as part of or incident to the service for
which he is employed’ are not ‘in the service of the employer’ and are thus
outside the scope of employment.” Warner Trucking, Inc. v. Carolina Cas. Ins.
Co., 686 N.E.2d 102, 105 (Ind. 1997). “An employee’s wrongful act may still
fall within the scope of his employment if ‘his purpose was, to an appreciable
extent, to further his employer’s business, even if the act was predominantly
motivated by an intention to benefit the employee himself’ or if the employee’s
act ‘originated in activities so closely associated with the employment
relationship as to fall within its scope.’” Id. (quoting Stropes by Taylor v. Heritage
House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989)).
[17] Here, in its order granting partial summary judgment in favor of Thompson and
denying Sony’s motion for summary judgment, the trial court found as a matter
of law that Brown was acting within the scope of his employment at the time of
the accident when Thompson was injured. The order specifically provided:
The Court finds that there is no genuine issue as to whether or
not . . . Brown was in the scope of his employment with Sony . . .
at the time of the accident in question. The Court specifically
finds that he was in the scope of his employment at the time of
the accident and the Court’s decision is based primarily on the
language that has been cited in the case of Warner Trucking Inc. v.
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Carolina Casualty Insurance Company, 686 N.E.2d 102 (1997), an
Indiana Supreme Court case. This Court finds that . . . Brown, at
the time of the accident in question, was to an appreciable extent
furthering his employer’s business, even though his conduct at
the time was also motivated by his intention to benefit himself.
The Court further finds that . . . Brown’s activity at the time of
the accident was closely associated with the employment
relationship with Sony . . . to fall within the definition of “scope
of employment.”
Appellant’s App. at 12-13.
[18] The evidence designated by the parties showed that: Brown had clocked out
prior to the time the accident occurred, Appellee’s App. at 17; the only reason
Brown was still on Sony property at the time of the accident was to deposit his
personal recyclables at the recycling center, id.; Brown and his wife had begun
recycling several years prior to the accident, and even if he did not utilize
Sony’s recycling center, he would have gone elsewhere to drop off his
recyclables, id. at 19; and Brown was employed in the DVD packaging
department at Sony, which had nothing to do with recycling or the recycling
center. Id. at 12, 19. Additionally, designated evidence was introduced that:
Sony’s recycling center was created as a checklist item to become ISO 14001
certified, id. at 25, 33; another checklist item was an education program that
informed Sony employees about the importance of recycling and of becoming
ISO 14001 certified and encouraging them to use the recycling center, id. at 26;
auditing occurred regularly to ensure Sony remained ISO compliant and to
make sure the recycling center continued to operate and that the education of
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employees continued, id. at 27, 33-34; Sony derived great benefit from being
able to sell its products worldwide as being ISO certified, id. at 25, 32; and
Brown acknowledged participating in the recycling education program at Sony
and was attempting to use the recycling center at the time of the accident. Id. at
12, 16, 17.
[19] We find that, based on the evidence designated to the trial court, there are
conflicting facts or conflicting inferences that can be drawn from the facts as to
whether Brown was acting in the scope of his employment with Sony at the
time of the accident. The evidence showed that, although Brown worked for
Sony, and Sony provided the recycling center for its employees’ personal use,
his employment had nothing to do with recycling or the recycling center, and
he was merely driving to deposit his personal recyclables at the time the
accident occurred. Further, although creating the recycling center was an
initiative to become ISO 14001 certified several years prior to the accident,
which certification greatly benefited Sony, the use of the center by employees
was not the focus of the initiative, merely the creation of the program.
Additionally, there was evidence that the creation of the recycling program was
a past initiative and was no longer discussed in the annual audits to ascertain
continued ISO 14001 certification. Appellee’s App. at 27. Based on the evidence,
there are issues of material fact as to whether Brown’s “‘purpose was, to an
appreciable extent, to further his employer’s business,’” even though his actions
were predominantly motivated by an intention to benefit himself; or whether
his actions “‘originated in activities so closely associated with [his] employment
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relationship as to fall within its scope.’” Warner Trucking, 686 N.E.2d at 105
(quoting Stropes by Taylor, 547 N.E.2d at 247). We, therefore, conclude that the
designated evidence presented genuine issues of material fact as to whether
Brown was acting in the scope of his employment at the time of the accident
with Thompson. The trial court erred in granting summary judgment in favor
of Thompson on this issue, and we remand to the trial court for a new trial,
where the issue of vicarious liability is presented to the jury.
II. Jury Instruction
[20] Initially, Sony argues that the trial court abused its discretion in allowing
Thompson to introduce at trial evidence of lost earning opportunity because it
is not a theory of damages recognized in Indiana. Sony specifically points to
the testimony of Charles Galloway (“Galloway”), in which he testified
regarding Galloway’s offer of a job for Thompson to work in his camera shop,
the fact that the job would have paid more than Thompson’s wages at
Securitas, and Thompson’s inability to take the job due to his injuries from the
accident. Tr. at 385-89. However, Sony failed to make a contemporaneous
objection when this evidence was introduced at trial. The failure to make a
contemporaneous objection to the admission of evidence at trial results in
waiver of the error on appeal. Walnut Creek Nursery, Inc. v. Banske, 26 N.E.3d
648, 654 (Ind. Ct. App. 2015). We, therefore, conclude that Sony has waived
any challenge to the admission of this evidence.
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[21] Sony next contends that the trial court abused its discretion when it instructed
the jury on lost earning capacity as a theory of damages. The trial court has
broad discretion regarding the manner by which it instructs the jury, and we
generally review that discretion only for abuse. McCowan v. State, 27 N.E.3d
760, 763 (Ind. 2015). In doing so, “we consider the instructions ‘as a whole and
in reference to each other’ and do not reverse the trial court ‘for an abuse of that
discretion unless the instructions as a whole mislead the jury as to the law in the
case.’” Helsley v. State, 809 N.E.2d 292, 303 (Ind. 2004) (quoting Carter v. State,
766 N.E.2d 377, 382 (Ind. 2002)). In evaluating the propriety of a given
instruction, we consider (1) whether the instruction correctly states the law, (2)
whether there is evidence in the record supporting the instruction, and (3)
whether the substance of the instruction is covered by other instructions. Hill v.
Rhinehart, 45 N.E.3d 427, 439 (Ind. Ct. App. 2015), trans. denied. An erroneous
instruction warrants reversal only if it could have formed the basis for the jury’s
verdict. Id.
[22] Sony asserts that, although the impairment of earning capacity is a proper
element of damages, the trial court erred in giving an instruction on the subject
of lost earning capacity because it was not supported by the evidence. Sony
contends that Thompson presented no evidence that he lost the capacity to earn
going forward after the accident. Sony contends that the evidence presented
showed that Thompson suffered no injuries in the accident that prevented him
from working in the fields of security, photography, or printing. Sony asserts
that it objected to a jury instruction on lost earning capacity due to the lack of
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evidence to support such an instruction, but the trial court gave the instruction
over the objection and erred in allowing the jury to consider lost earning
capacity damages in its verdict.
[23] “Indiana recognizes that a proper element of damage is the impairment of
earning capacity which means the impairment of ability to engage in one’s
vocation as distinguished from loss of earnings.” Scott v. Nabours, 156 Ind. App.
317, 320, 296 N.E.2d 438, 441 (1973). To prove impaired earning capacity, one
must show more than mere proof of permanent injury and pain; there must be
evidence of probative value which relates the injury to an inability to engage in
one’s vocation. 156 Ind. App. at 320-21, 296 N.E.2d at 441. As with other
damage issues, loss of earning capacity may be proven by both expert and non-
expert testimony. 156 Ind. App. at 321, 296 N.E.2d at 441. “The gist of the
concept is the adverse effect on vocation[, and t]he basic measure of damages
for impairment of lost earning capacity is the difference between the amount
which the plaintiff was capable of earning before the injury and the amount
which he is capable of earning thereafter.” Id. If no evidence is presented to
establish the loss of earning capacity, there can be no recovery on that issue. Id.
[24] We initially note that, although we are remanding to the trial court for a new
trial, and it is possible that, in the new trial, the same evidence may not be
presented, we will still determine this issue in the event that the same issue
arises in the new trial. In our review of the record, we do not find any evidence
supporting giving an instruction on lost earning capacity. Lost earning capacity
is shown by evidence of an inability to engage in one’s vocation. Id.
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Thompson concedes that Galloway’s testimony established that “[t]he wages
lost by Thompson during the period he would have been able to work for
Galloway and up to the time he was released by his doctor were lost wages not
lost earning capacity.” Appellee’s Br. at 21. Thompson does not point to any
other evidence presented at trial that would support the giving of a jury
instruction on lost earning capacity. Thompson’s treating physician testified
that Thompson was released to return to work without restrictions on
December 16, 2013 and confirmed that, after being released to return to work,
there was nothing “that would prevent [Thompson] from continuing on with . .
. being a security officer with the treatment [the doctor] provided.” Tr. at 450,
456. Thompson himself testified that nothing attributable to the accident
prevented him from working in the printing industry. Id. at 285. We, therefore,
conclude that, based on the evidence presented at trial, no evidence was
presented to support giving a jury instruction on lost earning capacity, and the
trial court abused its discretion in giving an instruction on lost earning capacity.
However, as we are remanding for a new trial, new evidence could be presented
that would support the giving of such an instruction in the new trial.
[25] Reversed and remanded.
[26] Riley, J., and Pyle, J., concur.
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