1. Briefly explain the concept of “vicarious liability” using the facts of this case.

2. What rationale for the doctrine of respondeat superior can be gleaned from the decision in the case?

3. Speculate on what Walgreen could have done, if anything, to prevent the harm caused in this case.

The Plaintiff, A.E.H., was engaged in an on-and-off sexual relationship with Peterson. She filled her prescriptions, including birth control pills at a Walgreen pharmacy. Peterson began dating a Walgreen pharmacist Audra Withers. A.E.H. became pregnant with Peterson’s child. Peterson learned that he had contracted genital herpes, and told Withers about the baby and that he may have exposed her to herpes. Withers became terrified, and during her shift while at work she looked up A.E.H.’s prescription profile in the Walgreen computer system to see if she could find any information about her sexually transmitted disease. Peterson sent a text message to A.E.H.:

I’m not trying to start any crap but I have a print out showing that you didn’t even refill ur birth control prescription for July or august. The last time you filled ur prescription was June. I know uve lied… but the printout does not lie….

A.E.H. replied in part: Print out. It’s illegal for u to obtain any kind of information like that regarding me… After the child was born Peterson mailed a gift to his son. By an Internet search of the return address A.E.H. discovered that Peterson was married to Withers and that Withers was a Walgreen pharmacist. In a lawsuit based on negligence/ malpractice the jury found that Walgreen and Withers were jointly responsible for $1.4 million in damages. Walgreen appealed.

JUDICIAL OPINION

BAKER, J.…

Respondeat Superior Liability

… Vicarious liability will be imposed upon an employer under the doctrine of respondeat superior “where the employee has inflicted harm while acting ‘within the scope of employment.’” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind.2008). 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. An act “is incidental to 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.’” …

In Barnett, our Supreme Court turned to the Restatement (Third) of Agency for further exploration of these concepts: The Restatement of Agency advises that “[a]n employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.” Restatement (Third) of Agency, § 7.07(1) (2006); see also id. at § 2.04. Further, “[a]n employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. …

An employer is not held liable under the doctrine of respondeat superior because it did anything wrong, but rather “because of the [employer’s] relationship to the wrongdoer.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind.1999).  ………………….