Robb, J.
Case Summary and Issue
Sandra Hogan, as Personal Representative of the Estate of Mary Hogan, (“Plaintiff”) appeals the trial court’s order granting summary judgment in favor of Magnolia Health Systems 41, L.L.C. (“Magnolia”) and presents one issue for our review: whether the trial court properly granted summary judgment in favor of Magnolia. Concluding it did not, we reverse and remand.
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Plaintiff challenges the trial court’s grant of summary judgment in favor of Magnolia. The crux of the dispute between the parties is whether the dismissal of Young, the alleged negligent Magnolia employee, as a defendant extinguishes Magnolia’s liability under the theory of respondeat superior. We conclude it does not.
The general rule is that vicarious liability can be imposed when an employer, who is not liable because of his own acts, is found responsible for the wrongful acts of his employee committed within the scope of employment…
Magnolia claims that a plaintiff “cannot chose to sue ‘either’ an employer or employee under the theory of respondeat superior.” Appellee’s Brief at 22. Contrary to Magnolia’s assertion, a plaintiff does, in fact, have the option of suing either the employee, employer, or both. Henry B. Steeg & Assocs.,Inc., 142 Ind. App. at 570, 241 N.E.2d at 889. There is no requirement that a plaintiff must sue the individual employee in order for an employer to be held liable for the employee’s conduct under the theory of respondeat superior; an employee only needs to have committed some act within the scope of employment for which he could be sued. See e.g. Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 458 (Ind. 2018) (plaintiffs sued the alleged negligent employees’ employers, namely the cities of Evansville, Fort Wayne, and the Evansville Police Department, not the individual employees); see also Southport Little League v. Vaughn, 734 N.E.2d 261, 267 (Ind. Ct. App. 2000) (plaintiffs sued the Little League, an organization, for the alleged negligent acts of a volunteer for the organization), trans. denied. As stated above, it is the employer’s relationship to the wrongdoer that makes the employer liable. Hinchy, 21 N.E.3d at 107. An injured party’s option to sue both essentially serves as a fail-safe for that plaintiff. If an employee is found to have been acting in the scope of employment, the plaintiff cannot recover from both the employee and employer. However, if the employee is found to be negligent but was not acting within the scope of employment, a plaintiff could still potentially obtain a judgment against the employee. Here, Plaintiff filed suit against Magnolia within the statute of limitations and did not have to file suit against Young or name her as a defendant in the first place. Therefore, Young’s dismissal as a defendant has no effect on Plaintiff’s respondeat superior action against Magnolia.
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Young’s dismissal as a defendant does not extinguish Magnolia’s potential liability arising from Young’s conduct. Magnolia admits Young was acting within the scope of her employment at the time of the incident and therefore, if the trier of fact determines that Young acted negligently, her negligence will be imputed to Magnolia, and a judgment will be entered accordingly. Because Magnolia was not entitled to judgment as a matter of law and genuine issues of material fact exist as to whether Young was negligent, the trial court improperly granted summary judgment in favor of Magnolia. [Footnote omitted.]
Conclusion
For the reasons set forth above, Magnolia was not entitled to judgment as a matter of law on the issue of its respondeat superior liability. But genuine issues of material fact exist regarding whether Young was negligent so as to impose such liability. Therefore, the trial court erred in granting summary judgment in Magnolia’s favor. We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Crone, J., and Brown, J., concur.