David, J.
Today we address whether a store manager can be held liable for negligence when he is not directly involved in the accident at issue. Looking at the facts and circumstances of this case and Indiana law, we hold he cannot.
….
Plaintiffs’ Complaint sets forth three claims against Clark. They allege he is liable for: (1) failing to properly hire, train, and supervise Wal-Mart’s employees; (2) failing to have and/or implement proper safety policies and procedures; and (3) failing to properly inspect and maintain the property in a safe condition. We will address each potential basis of liability and, in turn, whether Clark can be liable under Indiana law.
I. Plaintiffs cannot recover from Clark based on their failure to properly hire, train and supervise claim.
….
For both of the above listed reasons, 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.
II. Plaintiffs cannot recover from Clark based on their failure to have and/or implement proper safety policies and procedures claim.
While the record in this case is sparse, we do have the affidavit of Clark wherein he states that 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.” Joint App. Vol. II p. 76. Plaintiffs have not offered anything to counter Clark’s statements that he has nothing to do with the creation of safety procedures and because his statement is uncontested, we accept Clark’s statements as true.
III. Plaintiffs cannot recover from Clark based on their failure to inspect and maintain the property claim.
This claim is the meat and potatoes of Plaintiffs’ complaint as it relates to Clark and it implicates both premises liability law and agency law…
Here, Clark is not the possessor of the land: Walmart is. Plaintiffs argue that Clark may have been delegated sufficient control over the premises as to owe them a duty of care (e.g., he may have had something to do with placing the pallet or allowing its placement the day before). However, looking at the language of the Restatement itself, it does not apply to Clark. Clark was not “in occupation of the land with intent to control it” on his day off. Restatement (Second) of Torts § 328E (1965). Further, caselaw clearly provides that control of the premises (for purposes of determining duty) is “when the accident occurred.” Rhodes, 805 N.E.2d at 385.
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. 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. And, importantly, there is no indication that Wal-Mart gave over control to Clark at any point.
….
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.
Conclusion
For these reasons, we answer the certified question in the negative and hold that when there are no allegations that a store manager controlled the premises where the harm occurred, he or she cannot be held liable under Indiana law.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.