Hailee Sanders (minor), Appellant/Plaintiff v. Michelle Lee and Michael Padgett d/b/a Books, DVDs, and Games, Appellees/Defendants (2026)

MEMORANDUM DECISION

Case Summary

[1] On October 1, 2021, ten-year-old Hailee Sanders went with her father to Books, DVDs, and Games (“BDG”) in Terre Haute. Anthony Lee was working alone at BDG at the time, and his boyfriend, Robert Chrisman, had brought Anthony's dog, Bane, to BDG and had him on a leash outside the store. Hailee came out of BDG and was on the sidewalk in front of the store when Bane bit her on the face, severely injuring her. In July of 2022, Hailee filed a negligence suit against Anthony, Robert, Michael Padgett (owner of BDG), and Michelle Lee (alleged part-owner of BDG). Against Michael and Michelle (collectively, “Appellees”), Hailee advances theories of vicarious and premises liability. Appellees moved for summary judgment. In October of 2025, the trial court granted partial summary judgment in favor of Appellees on Hailee's negligence claim against them.

[2] Hailee contends that the trial court erred in granting partial summary judgment in favor of Appellees and abused its discretion in granting Appellees’ motion to strike a PowerPoint presentation she gave at the summary-judgment hearing. Because we conclude that the trial court erred in granting summary judgment in favor of Appellees and that Appellees failed to make a timely motion to strike the PowerPoint presentation, we reverse and remand with instructions.

Facts and Procedural History

[3] In October of 2021, Michael owned BDG, which leased space in the Southland Shopping Center in Terre Haute. There is some indication that Michelle (Michael's sister) was a partial owner of BDG as of October 1, 2021. The site plan attached as an exhibit to the lease shows that the sidewalks that run in front of the stores are not part of the leased spaces. BDG's lease provides that the Southland Shopping Center would be responsible for maintenance and repair of the structural portions, including sidewalks. The lease grants tenants and their invitees the non-exclusive right to use the common areas.

[4] On October 1, 2021, Michelle was working at BDG, and her son Anthony had taken over for her while she was on a break. Anthony at least occasionally worked at BDG, often by himself. At the time, Anthony owned a Cane Corso dog named Bane, which weighed between seventy-five and one hundred pounds. Michael knew that Anthony had a dog but knew nothing else about it and did not know if it had any dangerous propensities. Michelle also knew about Bane but had no knowledge of it having injured anyone or behaving aggressively. Michelle, who worked around fifty to fifty-three hours per week in BDG “doing everything[,]” only allowed service dogs in the store, a policy of which Anthony was aware. Appellant's App. Vol. III p. 128.

[5] At some point in Anthony's shift on October 1, 2021, Robert brought Bane to the Southland Shopping Center. Robert waited with Bane (on a leash) outside of BDG on the sidewalk while Anthony assisted a customer. Meanwhile, Chris Sanders, Hailee's father, had driven himself and Hailee to the Southland Shopping Center; Hailee initially stayed in the car while Chris went into BDG, walking past Robert and Bane on the sidewalk. Soon thereafter, Hailee entered BDG to give Chris the keys to the car, said “[t]here's a doggy out here[,]” and went back outside. Appellant's App. Vol. III p. 40. After Chris completed his purchase, he went back out on the sidewalk. Moments later, Bane bit Hailee while both were on the sidewalk, causing severe injury.

[6] On July 6, 2022, Hailee filed her amended complaint against Anthony, Robert, and Appellees (alleged to be doing business as BDG), claiming that they had negligently (1) allowed Bane to be brought to and kept on BDG premises, (2) failed to control Bane, and (3) failed to exercise reasonable care to prevent Bane from injuring Hailee. On July 25, 2022, Appellees filed their answer to the amended complaint and asserted various affirmative defenses.

[7] On January 31, 2025, Appellees moved for partial summary judgment claiming there was no designated evidence that they had owed Hailee a duty on the day of the dog bite or committed any acts or omissions that had caused Hailee's injuries. On August 1, 2025, Hailee filed her response to Appellees’ summary-judgment motion along with a supporting brief, designation of evidence, and supplement to their designation of evidence. On August 18, 2025, Appellees filed their reply brief in support of their summary-judgment motion.

[8] On September 4, 2025, the trial court conducted a hearing on Appellees’ motion for partial summary judgment. Hailee advanced theories of vicarious and premises liability. During the hearing, Hailee used a PowerPoint presentation, which seems to have been, more-or-less, a summary of her argument in opposition to Appellees’ motion for summary judgment, including citations to legal authority and designated evidence. Paper copies of the PowerPoint presentation were given to the trial court and all parties who were present. Appellees did not object to the trial court receiving a copy of the presentation or to its digital display during the hearing. On September 8, 2025, Appellees moved to strike the PowerPoint presentation, which motion the trial court granted the same day. On September 10, 2025, Hailee moved the trial court to reconsider ruling on the PowerPoint presentation. On October 3, 2025, the trial court denied Hailee's motion to reconsider. On October 22, 2025, the trial court entered summary judgment in favor of Appellees.

Discussion and Decision

[9] When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Id. (citing Ind. Trial Rule 56(C)). To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party's claim. Id. “Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist.” Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

I. The Trial Court Correctly Entered Summary Judgment on the Question of Vicarious Liability

[10] Hailee contends that the trial court erred in entering summary judgment in Appellees’ favor on her vicarious-liability claim.

“Vicarious liability is indirect legal responsibility.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999) (internal quotation omitted). “It is a legal fiction by which a court can hold a party legally responsible for the negligence of another, not because the party did anything wrong but rather because of the party's relationship to the wrongdoer.” Id. “Courts employ various legal doctrines to hold people vicariously liable, including respondeat superior, apparent or ostensible agency, agency by estoppel, and the non-delegable duty doctrine.” Columbus Reg'l Hosp. v. Amburgey, 976 N.E.2d 709, 714 (Ind. Ct. App. 2012).

Penske Truck Leasing Co., L.P. v. Dalton-McGrath, 157 N.E.3d 5, 15–16 (Ind. Ct. App. 2020). The two (somewhat intertwined) theories Hailee seems to be advancing are respondeat superior and agency, which we address separately.

A. Respondeat Superior

[11] Hailee argues that there is a genuine issue of material fact regarding whether Appellees can be held responsible for Bane's biting of Hailee via the doctrine of respondeat superior.

For well over a hundred years, Indiana has recognized the doctrine of respondeat superior—Latin for “let the superior make answer[.]” Under this doctrine, an employer is liable for employees’ tortious acts only if those acts occurred within the scope of employment.

[․.]

The scope-of-employment rule emanates from the concept of control. More specifically, it springs from the employer's control over its employees and their employment activities: the employer controls whom it hires, what employment duties it assigns, how it empowers employees to carry out those duties, and how it guards against harm arising from employment activities.

Although scope-of-employment liability is rooted in this control, it extends beyond actual or possible control, holding employers responsible for some risks inherent in the employment context. Ultimately, the scope of employment encompasses the activities that the employer delegates to employees or authorizes employees to do, plus employees’ acts that naturally or predictably arise from those activities.

This means that the scope of employment—which determines whether the employer is liable—may include acts that the employer expressly forbids; that violate the employer's rules, orders, or instructions; that the employee commits for self-gratification or self-benefit; that breach a sacred professional duty; or that are egregious, malicious, or criminal.

The scope of employment extends beyond authorized acts for two key reasons. First, it is equitable to hold people responsible for some harms arising from activities that benefit them. [․] Second, holding employers liable for those injurious acts helps prevent recurrence. [․] Since employers have some control over the risk of injurious conduct flowing from employment activities, imposing liability on employers for that conduct encourages them to take preventive action.

To be clear, the focus in determining the scope of employment must be on how the employment relates to the context in which the commission of the wrongful act arose. When tortious acts are so closely associated with the employment that they arise naturally or predictably from the activities an employee was hired or authorized to do, they are within the scope of employment, making the employer liable. But tortious acts are not within the scope of employment when they flow from a course of conduct that is independent of activities that serve the employer.

Cox v. Evansville Police Dep't, 107 N.E.3d 453, 460–62 (Ind. 2018) (citations and some quotation marks omitted).

[12] Hailee contends that Bane's presence at BDG the day of the dog bite was an act by Anthony that appreciably furthered BDG's business. Hailee, however, does not point to any designated evidence tending to show that Bane's presence at BDG furthered its business at all, much less appreciably. Hailee points to evidence that Anthony had purchased Bane, at least in part, for his protection and argues that a jury could reasonably infer that Bane's presence at BDG on the day he bit Hailee furthered BDG's interests by providing security for customers and inventory. We do not agree that this is a reasonable inference. Even if we were to assume that Anthony arranged for Bane to be brought to BDG for this purpose (of which there is no designated evidence), it is not the intent that matters, but, rather, whether Bane's presence actually benefited BDG (of which there is also no designated evidence).¹ The trial court did not err in rejecting Hailee's claim that a jury could reasonably find Appellees vicariously liable for Anthony's negligence (if, indeed, he was negligent) pursuant to the doctrine of respondeat superior.

B. Agency

[13] The bulk of Hailee's argument seems to be based on an agency theory, essentially that Anthony was a general agent of BDG and, therefore, fully authorized to make all business decisions at BDG, including decisions about things such as security measures. Appellees argue that the scope of Anthony's agency was much more limited, restricted to helping customers.

Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act.

A principal is liable for the acts of his agent that were committed within the scope of the agent's actual or apparent authority. Apparent authority refers to a third party's reasonable belief that the principal has authorized the acts of its agent; it arises from the principal's manifestations to a third party and not from the representations or acts of the agent. The manifestations can originate from direct or indirect communication, or from advertisements to the community.

Actual authority is created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account. The focus of actual authority is the belief of the agent. Actual authority may be express or implied and may be created by acquiescence.

Penske, 157 N.E.3d at 15–16 (citations and quotation marks omitted, formatting altered).

[14] “Employers are not responsible for acts that are unauthorized, or 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.’ ” Hayden v. Franciscan All., Inc., 131 N.E.3d 685, 691 (Ind. Ct. App. 2019) (quoting Doe v. Lafayette Sch. Corp., 846 N.E.2d 691, 702 (Ind. Ct. App. 2006), abrogated on other grounds by State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008)), trans. denied.

[15] As for designated evidence regarding the nature of Anthony's work at BDG, Michelle testified that “a couple of days out of the week [she] would call him and say, ‘Hey, do you want to come in?’ ” Appellant's App. Vol. III p. 136. When Anthony came into BDG, it would typically be from around 4:00 p.m. to closing at 6:30 p.m., and he would “run the store” for Michelle, working the cash register, selling product, and accepting credit-card payments. Appellant's App. Vol. III p. 140. Anthony did not have a key to the store, and Michelle described his assistance as “helping out[.]” Appellant's App. Vol. III p. 142. Anthony described his work at BDG as “helping [his] mom” and indicated that he had not been regularly paid. Appellant's App. Vol. IV. p. 106. Anthony had never considered himself an employee of BDG, had never worked an entire day there, and “h[e]ld down the fort for [Michelle] while she went and took care of the necessities that she needed to get done until she returned[.]” Appellant's App. Vol. IV p. 116.

[16] The designated evidence above, even if we accept all of it as true, does not establish anything like a general agency, which may be defined as “[a] principal's delegation to an agent, without restriction, to take any action connected with a particular trade, business, or employment.” General Agency, Black’s Law Dictionary (11th ed. 2019). At most, the designated evidence would allow a fact-finder to find that Anthony had had the authority to help customers and take payment for merchandise but little else. In short, there is no designated evidence from which a jury could reasonably infer that Anthony, who did not even have his own key to BDG and was specifically instructed that only service dogs were allowed in the store, was authorized to bring Bane to the store for security purposes.

[17] Hailee draws our attention to the case of Penske, 157 N.E.3d at 5. In that case, Julie Dirindin had owned and operated Julie's Auto Sales (“JAS”), which had rented trucks owned by Penske to JAS customers. Id. at 9. One such customer, Debra McGrath, had been bitten by a dog kept by Dirindin on JAS property. Id. Penske's agency agreement with JAS had provided that JAS was required to secure and protect Penske property and would not be liable for damaged or stolen equipment if it had taken all reasonable measures to secure and protect the property. Id. at 16. McGrath had alleged that Penske was vicariously liable for any negligence by Dirindin, arguing that her act of keeping the dog on JAS property had been within the scope of her authority to secure and protect Penske property. Id. at 15–16. We concluded that the issue was a genuine one of material fact for the jury: “Thus, one could reasonably argue that Dirindin was acting within the scope of her authority as Penske's agent by having a dog on the premises as a means of protecting Penske's equipment and property.” Id. at 16.

[18] This case is readily distinguishable from Penske. As mentioned, the designated evidence indicates that the scope of Anthony's agency was very limited compared to Dirindin's, restricted to assisting customers and taking their money. More to the point, there is no designated evidence that Anthony had been authorized or expected to provide security for BDG. Even if we were to assume, arguendo, that Anthony had caused Bane to be at BDG for security purposes, there is no designated evidence to even suggest that such a measure was within the scope of his authority. Hailee's reliance on Penske is unavailing.

II. The Trial Court Incorrectly Entered Summary Judgment on the Question of Premises Liability

[19] Hailee also argues that Appellees are directly liable for her injuries because they occurred on BDG's premises, or, more specifically, on a sidewalk over which BDG had asserted control. Appellees contend that they cannot be directly liable because the dog bite took place on the sidewalk, which, pursuant to BDG's lease, is land controlled by the Southlake Shopping Center. As mentioned, BDG's lease provides that the sidewalks that run in front of the stores are not part of the leased spaces and the Southland Shopping Center is responsible for maintenance and repair of the sidewalks. (Appellant's App. Vol. II p. 7).

[20] “It is well-settled law in Indiana that it is the duty of the landlord to maintain in safe condition the common stairways and other parts of the building used in common by tenants and over which the landlord retained control.” Morris v. Scottsdale Mall Partners, Ltd., 523 N.E.2d 457, 458 (Ind. Ct. App. 1988). That said, “[a] duty of reasonable care may be extended beyond the business premises when it is reasonable for invitees to believe the invitor controls premises adjacent to his own or where the invitor knows his invitees customarily use such adjacent premises in connection with the invitation.” Ember v. B.F.D., Inc., 490 N.E.2d 764, 772 (Ind. Ct. App. 1986) (citing Ollar v. Spakes, 601 S.W.2d 868 (Ark. 1980) (adjacent parking lot); Chapman v. Parking, Inc., 329 S.W.2d 439 (Tex. App. 1959) (adjacent parking lot)), trans. denied.

[21] In this case, there is designated evidence that BDG placed rolling bookshelves and shopping carts containing merchandise on the sidewalk in front of the store during business hours “pretty much every day back in 2021[.]” Appellant's App. Vol. III p. 135. Michelle agreed in deposition testimony that the following two photographs reflected how the front of BDG would have looked on October 1, 2021:

Tabular or graphical material not displayable at this time.

Tabular or graphical material not displayable at this time.

Appellant's App. Vol. II pp. 149–50.

[22] Because the carts of merchandise were placed on the sidewalk on either side of the only customer entrance to BDG, there is sufficient evidence to allow a finding that Appellees anticipated that their “invitees [would] customarily use such adjacent premises in connection with the invitation” to BDG. See Ember, 490 N.E.2d at 772. Indeed, Michelle testified that the carts were put on the sidewalk to “draw attention” and let potential customers know that “we have books in our store” in addition to “contain[ing] product that [BDG was] trying to sell[.]” Appellant's App. Vol. III p. 134. This is sufficient to preclude summary judgment on the question of premises liability.

[23] Moreover, the same designated evidence could support a reasonable inference that invitees would believe that BDG controlled the premises adjacent to its own, i.e., the sidewalk in front of the store. See id. A jury could reasonably find from the above that the average invitee to BDG would assume that BDG controlled the sidewalk in front of its store. We conclude that the trial court erred in entering partial summary judgment in favor of Appellees on the question of premises liability.

[24] Appellees draw our attention to Buehler v. Bocanegra, in which a mail carrier sued the landlords of a rental after he was bitten by a dog being cared for by a tenant. 212 N.E.3d 227, 229–30 (Ind. Ct. App. 2023), trans. denied. In Buehler, we stated that “in a dog bite case, the duty of reasonable care imposed upon a landowner who did not own the dog is measured by the landowner's control over the property and the landowner's actual knowledge that the dog had dangerous propensities.” Id. at 233. Similar cases also cited by Appellees include Baker v. Weather ex rel. Weather, 714 N.E.2d 740, 741 (Ind. Ct. App. 1999), and Goddard by Goddard v. Weaver, 558 N.E.2d 853, 854 (Ind. Ct. App. 1990), both cases in which a child was injured by dogs on rented residential property and sought to recover from the landlord. All of these cases stand for the proposition that a landlord must be shown to have known of a tenant's dog's dangerous tendencies in order for liability to attach to the landlord. Buehler, 212 N.E.3d at 233, Baker, 714 N.E.2d at 741, Goddard, 558 N.E.2d at 854. Appellees argue that these cases preclude liability for them because there is no designated evidence that they were aware that Bane had any aggressive tendencies. Even if we assume that this is true, the above cases are distinguishable.

[25] Simply put, Appellees’ situation is not analogous to that of the landlords in Buehler, Baker, and Goddard. First, unlike the absent landlords in those cases, there is designated evidence allowing a finding that Appellees controlled the premises on which the dog bite occurred. Moreover, the landlords did not invite the dog-bite victims onto the property in question, while, here, Appellees were the invitors—not only did they expect persons like Hailee to visit BDG, they actively courted them. In the end, the fact that this case arises in the context of a business to which the general public is invited, and the much greater degree of control exercised by Appellees, places it within the holding of Ember and not the residential cases cited by Appellees. We conclude that Appellees’ reliance on Buehler, Baker, and Goddard is unavailing.

III. The Trial Court Abused its Discretion in Striking Hailee's PowerPoint Presentation

[26] Hailee contends that the trial court abused its discretion in granting Appellees’ motion to strike the PowerPoint presentation she made at the summary-judgment hearing, which we think can best be characterized as a summary of Hailee's argument with some material rebutting Appellees’ reply brief. Generally, we review a decision regarding a motion to strike for an abuse of discretion. Allstate Ins. Co. v. Hatfield, 28 N.E.3d 247, 248 (Ind. Ct. App. 2015). Without expressing any opinion on the merits of the parties’ arguments on this matter, we agree with Hailee that Appellees waived any argument they may have had to the PowerPoint presentation by failing to lodge a contemporaneous objection at the summary-judgment hearing. A motion to strike is subject to the same requirements of timeliness as objections. See Joy v. State, 460 N.E.2d 551, 561-62 (Ind. Ct. App. 1984). The contemporaneous objection rule “affords the trial court the opportunity to make a final ruling on the matter in the context in which the evidence is introduced.” Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). It promotes fairness by preventing a party from sitting idly by while allegedly objectionable arguments or evidence is presented and ensures “the [trial] court an opportunity to cure the alleged error, which, in turn, can result in enormous savings in time, effort and expense to the parties and the court[.]” Applegate v. State, 230 N.E.3d 944, 951 (Ind. Ct. App. 2024) (first set of brackets in original, second set of brackets added), trans. denied. We conclude that the trial court abused its discretion in granting Appellees’ untimely motion to strike Hailee's PowerPoint presentation.

Conclusion

[27] We affirm the trial court's grant of summary judgment in Appellees’ favor with respect to Hailee's claims of vicarious lability. We reverse the trial court's grant of summary judgment in Appellees’ favor with respect to Hailee's claim of premises liability and remand for further proceedings. Finally, we reverse the trial court's grant of Appellees’ motion to strike the PowerPoint presentation Hailee made at the summary-judgment hearing.²

[28] We affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.

FOOTNOTES

1.   Indeed, we think it much more likely that the presence of a large dog on the sidewalk outside would harm BDG's interests, discouraging customers from entering the store. This is reinforced by BDG's policy, as acknowledged by Anthony, that only service dogs were ever to be allowed in the store.

2.   Our ruling on this claim is not to be taken as a declaration that the PowerPoint presentation is admissible for any other purpose.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.