TESLA INC v. NORRIS (2026)

Under Indiana's “going-and-coming” rule, an employee driving to and from work is generally not acting within the scope of his employment, in which case the employer is not vicariously liable for the employee's negligence under principles of respondeat superior. An exception to this rule arises if the employee is performing work assigned by the employer, or is subject to the employer's control. As with many such rules and their exceptions, the legal result here turns on the facts. We hold that the evidence designated below presents a material factual dispute over whether the employee was acting within the scope of his employment. We reverse the trial court's entry of partial summary judgment on this issue for the plaintiff and the employee, and against the employer, and remand for trial.

I

A

This case stems from a motor-vehicle accident between the employee, Kyle Kaszuba, and Christopher Dugan. Kaszuba worked as a service assistant for Tesla, an electric-car company. In April 2017, Kaszuba drove a Tesla-owned service truck to drop off a company trailer for repair near the end of his workday. After dropping off the trailer, Kaszuba realized that returning the truck to the service center to retrieve his own vehicle would take almost an hour in rush-hour traffic. So he called his manager, Seth Aichinger, who told Kaszuba he could take the service truck home and return it the next day.

Tesla employees normally drive their own personal vehicles to and from work. But, as a convenience to the employees, they can drive a work vehicle home with their manager's approval. Tesla's “informal policy” was that if an employee were returning a company-owned vehicle with less than a quarter tank of gas, “you should fill it up before you returned it.” The gas policy was reached by a “consensus” of the service team “as a courtesy to others”, and “[k]eeping gasoline levels above a 1/4 tank was a recommendation, not a required job duty”.

Kaszuba typically sought and received permission to drive the service truck home once or twice a week. On the morning of April 25, Kaszuba began his morning commute in the service truck from his home west of Indianapolis to the Tesla service center on the northeast side of Indianapolis, about fifty miles away. En route, he noticed the gas tank was less than one-fourth full. He opted to fill the tank at a Speedway gas station on Rockville Road, a major east-west thoroughfare on the west side of Indianapolis. Kaszuba moved into the center lane to turn left into the gas station. At the same time, Dugan, who was on his motorcycle, turned right out of the Speedway and headed westbound on Rockville Road. As Dugan accelerated to about thirty-five miles per hour, Kaszuba turned left and struck Dugan with the front of the service truck. Dugan, who was driving his motorcycle without a helmet, suffered a traumatic brain injury and partial amputation of his left foot.

B

1

Dugan sued both Kaszuba and Tesla. He alleged that Kaszuba was acting in the scope of his employment, and that Tesla was vicariously liable for Kaszuba's negligence. The trial court later found Dugan to be incompetent, so it substituted Dugan's mother and guardian, Annamarie Dugan Norris, as plaintiff. Norris and Kaszuba each moved for summary judgment against Tesla on the issue of Tesla's vicarious liability. Both argued that Kaszuba was acting in the scope of his employment for Tesla at the time of the collision. Tesla responded and cross-moved for summary judgment. It argued that the accident occurred while Kaszuba was commuting, so his conduct fell outside the scope of employment under Indiana's going-and-coming rule.

The trial court granted Norris's and Kaszuba's motions for partial summary judgment, finding Tesla vicariously liable as a matter of law. It held that “Kaszuba was on a special errand for his employer to fill the service truck with gas before returning to the company office․ But for the need to get gas, Kaszuba would not have turned into the Speedway lot.” The case proceeded to a bifurcated trial. At the liability phase, the jury found Kaszuba to be seventy percent at fault for the accident and Dugan thirty percent at fault. At the damages phase, the same jury returned a total damages award of $60,687,491 to Norris. Reduced by thirty percent for Dugan's comparative fault, the money judgment for Norris totaled $42,481,243.

2

Tesla appealed, alleging multiple errors before and during the trial. Kaszuba joined Tesla's appeal on all issues except vicarious liability. First, Tesla challenged the trial court's summary-judgment ruling that Kaszuba was acting in the scope of his employment at the time of the accident. Next, Tesla alleged that prejudicial errors during the liability phase infected the verdict and resulted in cumulative, reversible error. Specifically, Tesla challenged the trial court's admission of Dugan's testimony concerning his prior motorcycle driving habits and injuries, as well as the opinion testimony of an Indianapolis police officer who opined on the legality of Kaszuba's left turn into the Speedway. Tesla also alleged misconduct by Norris's trial counsel, Nicholas Rowley. Among the allegations against counsel are that Rowley approached Kaszuba in the bathroom right before Kaszuba was to testify and said he was “sorry you have to be here”, and that “[Elon] Musk is making the decisions”. Tesla alleged this conduct violated the Indiana Rules of Professional Conduct and “was aimed at rattling and intimidating the key witness moments before testifying.”

Tesla also challenged the trial court's conduct during the damages phase. While still deliberating, jurors told the court that they “reached an impasse” and “are unable to render a verdict.” In response, the judge told the parties in open court that she was declaring a mistrial on the damages phase. But upon returning to the courtroom from a private communication with jurors in the jury room, the trial court “un-granted” the mistrial. The judge recounted that the jurors wanted to continue to deliberate and “were very upset to hear that they couldn't continue.” Tesla argued that the court improperly communicated with the jury, resulting in prejudice and warranting a new trial.

Our court of appeals affirmed in part, reversed in part, and remanded in a unanimous precedential opinion. Tesla, Inc. v. Norris, 274 N.E.3d 956 (Ind. Ct. App. 2025). The panel affirmed the trial court's grant of partial summary judgment for Norris and Kaszuba on the issue of vicarious liability. Though noting that commuting is not normally within the scope of one's employment, the panel held that “Kaszuba was stopping for gas solely to comply with his employer's policy and immediately before returning the vehicle to the employer—not as part of a personal errand or detour.” Id. at 973 (emphasis in original). The court also affirmed the liability phase of the trial, including the seventy-/thirty-percent allocation of fault. Id. at 974–79. On the issue of counsel's alleged misconduct, the court found that Attorney Rowley violated Indiana Professional Conduct Rule 4.2 by speaking with Kaszuba, but that the violation did not influence or affect Kaszuba's testimony. Id. at 978.

The panel reversed and remanded for a new trial on damages. The trial court's ex parte communication with the jury, the panel held, “create[d] a presumption of error” that is “rebuttable and does not constitute per se grounds for reversal.” Id. at 979 (quoting Minor v. State, 252 N.E.3d 979, 985 (Ind. Ct. App. 2025). Norris did not rebut the presumption of error arising from the jurors’ quick verdict after meeting with the judge, so the panel could not rule out that the judge's discussion with jurors “encouraged at least the recalcitrant juror to give up his opinion.” Id. at 982.

Tesla and Kaszuba then sought transfer, which we granted, 280 N.E.3d 257 (Ind. 2026), thus vacating the appellate decision, Ind. Appellate Rule 58(A). Our opinion today addresses only the trial court's entry of summary judgment for Norris and Kaszuba on the issue of vicarious liability. We summarily affirm the court of appeals’ opinion on all remaining issues concerning the trial's liability and damages phases. And we express no opinion on whether Attorney Rowley violated our professional-conduct rules.

II

On the issue of Tesla's vicarious liability, we find that genuine issues of material fact preclude summary judgment here. On remand, the jury should determine whether Kaszuba was acting within the scope of his employment with Tesla at the time of his accident with Dugan.

We begin with the doctrine of vicarious liability, including the common-law going-and-coming rule, which informs whether an employee commuting to work acts within the scope of employment. Then, we consider whether the going-and-coming rule applies here by examining the parties’ conflicting factual accounts on two related issues: first, whether Kaszuba's commute on the morning of the accident was within the scope of his employment with Tesla; second, whether Kaszuba's discrete decision to stop for gas that morning was within his scope of employment. We close by summarizing how the trial court should proceed on remand.

A

The scope-of-employment question governs whether Tesla is vicariously liable for Kaszuba's conduct. Norris does not allege that Tesla itself acted negligently or was independently at fault for Dugan's injuries. Her claim, rather, is that Kaszuba was at fault while acting within the scope of his employment with Tesla the morning of the accident, and that Tesla is vicariously liable under principles of respondeat superior. Vicarious liability is a “legal fiction” holding a party responsible solely “because of the party's relationship to the wrongdoer.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999). Respondeat superior, the theory of vicarious liability here, “imposes liability, where none would otherwise exist, on an employer for the wrongful acts of his employee which are committed within the scope of employment.” Stropes ex rel. Taylor v. Heritage House Childs. Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989).

For an employee's act 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.” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). An act is incidental to authorized conduct when it is “subordinate to or pertinent to an act which the servant is employed to perform”. Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quoting Restatement (Second) of Agency § 229 cmt. b (1958)). An employee's act that appreciably furthers the employer's business may still be within the scope of employment “even if the act was predominantly motivated by an intention to benefit the employee himself.” Stropes, 547 N.E.2d at 247. The distinction between an employee acting within the scope of employment and an employee acting independently often hinges on the employer's control over the employee:

An 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 employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.

Barnett, 889 N.E.2d at 284 (emphasis in Barnett) (quoting Restatement (Third) of Agency § 7.07(2) (2006)).

The specific rule governing an employee's commute to and from work is the going-and-coming rule. “It is well settled that an employee on his way to work is normally not in the employment of the corporation.” Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617, 618 (1959) (per curiam). That an employee is using a company car to get to work does not, alone, “change a relationship of bailment to one of agency.” Ibid. But this is not a hard-and-fast rule. The critical inquiry is “whether the employee is in the service of the employer”, even if the employee is off-duty or commuting at the time of the accident. Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997).

Whether an employee was acting within the scope of employment usually is not a legal question for the court but a factual question for the jury. “It is well established that whether an employee's actions were within the scope of employment is a question of fact to be determined by the fact-finder.” Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 794 (Ind. 2015) (quoting Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind. Ct. App. 2014)).

B

Next, we address whether the trial court properly held, as a matter of law, that Kaszuba was acting within the scope of his employment at the time of the accident. This requires us to consider whether Norris, Kaszuba, and Tesla offer “conflicting facts, or conflicting inferences to be drawn from the facts, regarding why [Kaszuba] was on the road at the time of the accident.” Dodson v. Carlson, 14 N.E.3d 781, 784 (Ind. Ct. App. 2014).

Tesla argues that a disputed issue of material fact precludes finding that Kaszuba was acting within the scope of his employment: “Indiana law does not attach vicarious liability to an employee's voluntary decision to fuel a company vehicle on the way to work when that person is not ‘on the clock’ or required to do so.” Norris, in contrast, argues that Kaszuba was acting within Tesla's employment because “he went to the Speedway solely for Tesla's benefit and at Tesla's instruction.” And Kaszuba argues that he was acting within the scope of his employment because he was completing “his work assignment from the evening prior”.

The parties have thus presented two questions for us to consider in assessing the scope-of-employment issue here:

• Whether Kaszuba's commute in the Tesla service truck was within the scope of his employment with Tesla, and

• Whether Kaszuba's specific decision to get gas was within the scope of his employment based on Tesla's informal gas policy.

1

The parties offer conflicting evidence on whether Kaszuba's commute the morning of the crash was within the scope of his employment. While Tesla argues that Kaszuba's morning commute was purely personal time, Norris and Kaszuba argue that Kaszuba's commute should be considered within the scope of his employment because he was returning the service truck and completing the task (dropping off the trailer) that Kaszuba's manager, Aichinger, assigned him the day before.

Kaszuba normally commuted using his personal vehicle, but he used a Tesla business vehicle once or twice a week to commute, often for his personal convenience. Employees, though, did not have unlimited access to Tesla's service vehicles. An employee who wanted to keep a Tesla vehicle overnight had to get Aichinger's approval. In his deposition, Kaszuba testified that he took the service truck on a work assignment the day before the accident. While returning from his assignment, he asked to take the service truck home because “traffic was backing up”, and it “would have slowed [him] if [he] went back to the shop” to leave the truck and pick up his own vehicle. Aichinger likewise understood that Kaszuba took the service truck home that evening for his personal convenience: “It would've been more convenient for Kyle [Kaszuba] to go on home than to turn around and come all the way back to the shop.” Kaszuba, though, testified that he never used Tesla vehicles for personal reasons.

There is a dispute between Kaszuba's and Aichinger's account of key events. Kaszuba believed he took the truck home for Tesla's benefit, and his commute the next morning in Tesla's service truck was to finish the assignment and return the truck to the service center. Tesla, for its part, points to evidence that Kaszuba took the truck home for a personal reason—to skip rush-hour traffic. Illustrative of this dispute is the parties’ further conflicting view of whether Kaszuba was “on the clock” and being paid for his commute to work that morning. Kaszuba said that he would clock in for work “as soon as [he] entered the truck or the service vehicle”, so he believed he was working at the time of the collision with Dugan. Aichinger, in contrast, testified that Kaszuba “was not clocked in during his morning commute on April 25” and “was not paid” for that time. Based on the designated evidence, there is a genuine issue of material fact on whether Kaszuba was acting within the scope of his employment in using the Tesla service truck on his commute that morning.

Our dissenting colleagues believe the evidence here “conclusively shows [Kaszuba] used the truck solely within the scope of his employment.” Post, at –––– (emphasis in original). They point to both Aichinger's approval for Kaszuba to use the truck and Tesla's policy against using the truck for personal reasons. The dissent's conclusion is, to be sure, one that a reasonable factfinder could come to. But that is no basis for a court on summary judgment to credit this evidence over Tesla's contrary evidence. The jury chooses which version of events to credit, and courts must not usurp the jury's fact-finding role. The trial court granted Norris's and Kaszuba's motions for summary judgment—meaning Tesla is the relevant non-movant. See Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 160 (Ind. 2005). Courts must accept the non-movant's evidence, construe it in favor of the non-movant, and “resolve[ ] all doubts against the moving party.” Ibid.

Based on the conflicting evidence, a genuine dispute exists as to whether Kaszuba's commute the morning of the accident was within the scope of his employment.

2

A related but separate factual issue concerning the scope of employment is Kaszuba's decision to stop for gas that morning. An employee may act within the scope of his employment during his commute if he is performing a task “incidental to the conduct authorized” by the employer, or if his conduct, “to an appreciable extent, further[s] the employer's business.” Barnett, 889 N.E.2d at 283.

Again, the factual record on this issue is conflicting. Norris argues that Kaszuba was doing more than simply commuting; he was following Tesla's “informal policy” to fill the gas tank to further Tesla's business: “Kaszuba made this decision [to get gas] solely to meet Tesla's purposes, for he wanted the truck to have enough gas so he could complete his workday.” This informal policy, Norris claims, transformed Kaszuba's decision to get gas from a personal decision to one done in service of his employer. And Kaszuba noted in his discovery responses that he “was stopping to fill the vehicle with gas ․ in anticipation of returning the vehicle to the shop so the tank would be at or above 1/2 tank in accord with the shop policy as it pertained to service vehicles.”

Tesla does not dispute the existence of this unofficial “policy” but challenges whether Kaszuba's decision to get gas was pursuant to the policy. Aichinger, the service manager, testified at his deposition that the gas policy “wasn't a rule. It was not an official corporate policy. It was just something during one of our team meetings ․ as a courtesy, quarter tank or less, fill it up.” Tesla also designated evidence that “[k]eeping gasoline levels above a 1/4 tank was a recommendation, not a required job duty of Kyle Kaszuba. Mr. Kaszuba would not be terminated or otherwise disciplined if he were to return a service vehicle to the Service Center with less than a 1/4 tank.” Even Kaszuba testified that he did “not believe there [was] an official Tesla policy, but from [his] manager ․ through courtesy and preparation, it [was] recommended to have the truck returned to the shop with at least a half tank of gas.”

The dissent says we “mischaracterize[ ]” the record by calling Tesla's policy a mere “recommendation”. Post, at ––––. We do not mischaracterize the record by quoting it. The service manager testified in a sworn statement that the “policy” was at most a “recommendation”. The jury may see things differently, but that prerogative belongs to the jury, not to us.

Whether Tesla's gas policy was a required task, or a mere recommendation, is a central question, and it was the basis for the trial and appellate courts’ decisions finding summary judgment appropriate. Kaszuba's stopping for gas, the appellate panel held, was “not incidental to his commute but was instead a required task integral to returning the employer's property in the condition the employer expected and required.” Tesla, Inc., 274 N.E.3d at 974. We disagree. The conclusion that getting gas was a “required task” ignores Tesla's contrary evidence. The evidence on this key issue is not clearcut but conflicting.

Based on the summary-judgment record, a jury could find that Tesla's “informal policy” to get gas did not apply to an employee's commute at all. The scope of Tesla's gas policy is unclear on this record. Neither Kaszuba nor Aichinger testified that the policy applied when an employee used the service truck on his personal commute. And at oral argument, Norris conceded that nothing in the record showed the policy applied to an employee's personal commute. But she argued that the policy must apply because it was the only reasonable inference from the record. An equally plausible inference is that Tesla's gas policy applied only when an employee was “on the clock”. Aichinger noted that the policy arose when one of the service technicians “left to go out on a job and the vehicle was empty”. And Kaszuba noted the gas level was “something that we looked for just so we don't get ․ on a time crunch when we're going to a customer and we need gas.” Because the informal gas policy was a courtesy to fellow employees during their workday, it would be reasonable to believe the policy did not extend to an employee's personal time commuting to the service center.

Again, a jury might agree with Norris and Kaszuba that stopping for gas that morning was “not incidental” to Kaszuba's commute but was a “required task integral” to returning the truck to Tesla. But that is not the only permissible view of the evidence. A reasonable jury could also find for Tesla on the same evidence and conclude that Kaszuba stopped for gas independently to benefit himself or as a favor to fellow employees. Whether Tesla has respondeat-superior liability for Kaszuba's negligence is a legal question, and its answer turns on resolving a factual dispute that on this record belongs to the finder of fact.

We reached a similar conclusion in Warner Trucking, Inc. v. Carolina Casualty Insurance Co., 686 N.E.2d 102 (Ind. 1997). There, an employee attended an evening party at a coworker's home, where he consumed several alcoholic beverages. Id. at 105. Despite his employer's rule that employees could not drive company vehicles after consuming alcohol, the employee drove the company's semi-tractor and injured the plaintiff. Id. at 104–05. The trial court denied summary judgment for the employer, but the court of appeals reversed in favor of the employer. On transfer, we affirmed the trial court. The designated evidence showed that the employer “gave a cash advance to the driver the night of the accident ․ to use to pay for fuel”, and the accident occurred en route to the gas station. Id. at 106. Also, employees often took semi-tractors to the gas station before driving them in the early morning. Ibid. In affirming the denial of summary judgment, we noted that “[a]cts done ‘on the employee's own initiative, with no intention to perform [them] as part of or incident to the service for which he is employed’ are not ‘in the service of the employer’ ”. Id. at 105 (quoting Stropes, 547 N.E.2d at 247). Thus, an issue of fact existed, we held, because the inebriated employee could have driven the truck to the gas station on his own initiative. Or he could have driven the truck because his boss gave him money for gas, and he was going to fill up in accordance with the employer's custom to fuel work vehicles before driving them. See id. at 105–06.

A similar disputed factual issue exists here. Kaszuba could have stopped at the Speedway that morning due to Tesla's gas policy. He testified that he stopped because of the gas policy. But, based on Tesla's conflicting evidence, he could have stopped on his own initiative to benefit himself or his fellow employees. As we held in Warner Trucking, choosing between these two alternatives is not proper for a court to decide on summary judgment. Thus, a jury must decide whether Kaszuba's getting gas was a required task mandated by Tesla and so within the scope of employment. If the jury concludes that getting gas arose solely out of Kaszuba's personal commute, then it must determine if Kaszuba was still acting within the scope of his employment because getting gas furthered Tesla's business “to an appreciable extent”. Barnett, 889 N.E.2d at 283.

The dissent finds it dispositive that Tesla paid for the gas in its service truck. See Post, at ––––. But that overstates Indiana law. An employer that pays for gas does not necessarily transform its employee's commute to work into a trip within the scope of his employment, as we held in Biel, our seminal going-and-coming case. 161 N.E.2d at 618 (finding that an employer's “incidental benefit[ ]” of “pa[ying] for the oil and gas” for the company vehicle is insufficient to make an employee's commute within the scope of her employment).

Our default rule, as we have said, is the opposite: An employee commuting to and from work generally is not acting within the scope of his employment. Without clear, undisputed evidence that Kaszuba's stop was to complete a task mandated by (or undertaken for) Tesla, a reasonable jury could conclude on this record that getting gas was part of his commute alone. This conclusion comports with our summary-judgment standard. Hughley v. State, 15 N.E.3d 1000 (Ind. 2014). Hughley is a two-way street. It requires a party opposing summary judgment to show only a “[g]enuine” issue of material fact, not necessarily a “[p]ersuasive” one. Id. at 1004. This standard applies equally to plaintiffs and defendants.

C

Due to the complexity of this bifurcated trial, and the multiple claims and conclusions of error on appeal, we conclude by explaining the scope of the new trial and its procedure on remand. Because we hold that summary judgment was inappropriate on the issue of vicarious liability, we remand for a new trial on that issue. But we agree with our court of appeals that no prejudicial error warrants redoing the trial's entire liability phase. The jury's determination, accordingly, that Kaszuba was seventy percent at fault for the accident, and that Dugan was thirty percent at fault, remains.

We reject Tesla's argument that we should order a new trial across the board on all issues of liability and damages. Though the trial court specified that the same jury should hear both phases of trial, its order does not extend to any remand after appeal. And any new trial “shall be limited to those parties and issues affected by the error unless this would be impracticable or unfair.” App. R. 66(D). On this record, we disagree that it would be unfair to remand the vicarious-liability and damages issues to the jury but to keep the apportionment of fault the same. It would not enhance judicial efficiency to require a new jury to apportion fault, where no error affected the original jury's determination.

* * *

For these reasons, we reverse the trial court's entry of summary judgment for Norris and Kaszuba, and against Tesla, on the issue of Tesla's vicarious liability. We summarily affirm the court of appeals’ opinion in most other respects, including its affirmance of the liability (allocation-of-fault) phase of the trial and its reversal of the jury's damages verdict. But we neither adopt nor affirm the panel's determination that Attorney Rowley violated Professional Conduct Rule 4.2—a matter on which we take no position. We remand to the trial court with instructions to hold a new trial on vicarious liability and damages.

I agree with the Court's decision to summarily affirm the Court of Appeals’ holdings that various liability-phase errors alleged by Tesla were either waived, harmless, or cured at trial; and that the trial court's ex parte communication with the jurors warrants remand for the damages phase of the trial. However, I part ways with the Court in its decision to reverse the trial court's summary-judgment ruling on the issue of Tesla's vicarious liability. The evidence conclusively shows that the employee here—the Driver, as I'll refer to him—had acted within the course and scope of his employment with Tesla. And I'm left unpersuaded by the Court's determination that purportedly conflicting testimony creates material-fact issues best left for the jury to decide.

* * * * *

Vicarious liability is a “legal fiction” by which a party may be held “legally responsible for the negligence of another, not because the party did anything wrong but rather because of the party's relationship with the wrongdoer.” Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1068 (Ind. 2022) (internal citation and quotation marks omitted). Respondeat superior, the “doctrine most often associated with vicarious liability in the tort context,” rests on the “employer-employee or principal-agent relationship.” Id. “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,” even if the “act was predominantly motivated by an intention to benefit the employee himself.” SONY DADC U.S. Inc. v. Thompson, 56 N.E.3d 1171, 1178–79 (Ind. Ct. App. 2016) (internal citation and quotation marks omitted), trans. denied. By contrast, 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.” Id. (internal citation and quotation marks omitted).

The specific rule applicable here, as the Court observes, is the going-and-coming rule, which informs our scope-of-employment inquiry when an employee is commuting to work. See ante, at ––––, ––––. Under that rule, an employee's commute does not, standing alone, bring his or her actions within the scope of employment for purposes of vicarious liability. Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617, 618 (1959) (per curiam). An exception applies when “the employee is not just going to work, but also performing an errand for or otherwise providing some service or benefit to the company, other than merely showing up for work.” Hudgins v. Bemish, 64 N.E.3d 923, 931 (Ind. Ct. App. 2016) (quoting Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665, 668 (Ind. Ct. App. 1995)).

Generally, whether the tortious act of an employee falls within the scope of employment is a question of fact. Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003). But “the question may be determined as a matter of law” when the evidence “conclusively” shows the employee had acted within the course and scope of employment. Id.

In reversing the trial court's summary-judgment ruling on the issue of Tesla's vicarious liability, the Court finds conflicting factual accounts on two related issues: (A) whether the Driver was using the service truck for “personal reasons” during his commute rather than while acting within the scope of employment; and (B) whether the Driver acted on his own initiative, free of any intention to further Tesla's business, when deciding to stop for gas on the morning of the accident. Ante, at ––––, –––– – ––––. I address these findings in turn.

A. Nothing in the record suggests the Driver used the service truck for “personal reasons.”

The Court first concludes that the Driver may have been using the service truck for “personal reasons.” In support of this determination, the Court points to the parties’ purportedly disparate accounts of key events: whereas the Driver testified to having used the service truck solely for Tesla's benefit (specifically, to haul a trailer from the service center to a repair shop across town), the Tesla service manager testified to the Driver having used the truck because it “would've been more convenient” for the Driver to go home rather than “come all the way back to the shop.” Id. at –––– (quoting App. Vol. 3, p. 93). The Court also cites conflicting views over whether the Driver was “on the clock” and being paid for his commute to work the morning of the accident. Id.

The Court creates a material-fact issue where none exists.

To begin with, it matters not whether the Driver was “on the clock.” See id. The “critical inquiry,” as the Court itself points out, is whether the employee is acting in the employer's service, “even if the employee is off-duty or commuting at the time of the accident.” Id. at –––– (citing Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997)) (emphasis added).

Second, nothing in the record suggests the Driver was using the truck for “personal reasons.” To the contrary, the evidence conclusively shows he used the truck solely within the scope of his employment. On the evening before the accident, he used the vehicle to haul a trailer from the Tesla service center in Castleton (his place of employment) to a repair shop across town in Westfield—a “task that needed to get done” that day, his service manager testified. App. Vol. 3, p. 85. After completing that task, the Driver, given the late hour and heavy traffic, requested permission to bring the vehicle home that evening and return it in the morning. The service manager typically allowed employees to bring the truck home when it “was more convenient for them” to do so. Id. at 75. But employees still had to seek approval. Id. at 91–92, 95. And the decision to grant such a request fell solely within the manager's “discretion.” Id. at 92. Having received the necessary permission, the Driver went home after dropping off the trailer and, according to him, didn't “use the truck for any personal reason th[e] night after [he] parked it,” a fact that's not in dispute.¹ Id. at 145; see also id. at 176 (manager testifying that he had never found the Driver “to be untruthful”).

The record also shows that the Tesla service center had a general policy of not allowing employees to use the maintenance truck for personal reasons. Id. at 27, 74, 186–87. The “only time [the truck] could be used for personal reasons,” according to the service manager, was “if an employee was taking it home for some reason and needed to stop and run an errand coming or going.” Id. at 74. Even if one could read that testimony as saying that the service center allowed use of the truck for a personal errand (rather than an errand for Tesla while acting within the scope of employment), the manager went on to testify that, “to [his] knowledge,” the Driver had “[n]ever used the [truck] for personal errands.” Id. at 75 (emphasis added).

Additional evidence plainly shows that the Driver had operated the service truck subject to his employer's control. According to the service manager, Tesla policy requires its employees “to obtain permission from a manager” before “operating a company vehicle” as an “approved user.” Id. at 79. The Tesla service center also required the Driver to show “proof of competence” to operate the truck in conformance with DOT driver-qualification mandates. Id. at 89. And before an employee operates the service truck, a company handbook instructs them to first conduct—and record in a logbook stored inside the vehicle—a fifteen-point safety inspection, something the Driver “always did.” Id. at 143.

Finally, even if the Driver had taken the truck home for reasons of “personal convenience,” see ante, at ––––, such evidence doesn't necessarily create an issue of material fact. As the Court itself acknowledges, an “employee's act that appreciably furthers the employer's business” still falls “within the scope of employment ‘even if the act was predominantly motivated by an intention to benefit the employee himself.’ ” Id. at –––– (quoting Stropes ex rel. Taylor v. Heritage House Childs. Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989)). And here, there's no question that Tesla benefited from the Driver having returned home after completing his task. Had he instead returned the truck to the service center, as the manager testified, the Driver “would have been on the clock until he got back,” costing the company an hour or so of the Driver's time beyond his normal shift, given the expected delay due to rush-hour traffic. App. Vol. 3, pp. 87, 138–39. While Tesla “didn't have a no overtime policy,” any overtime hours incurred by an employee “had to be justified.” Id. at 93.

In short, nothing in the record suggests the Driver used the service truck for “personal reasons,” and even if he had, his actions appreciably furthered Tesla's business.

B. Even if the gas policy were a mere “recommendation,” the scope of employment encompasses an employee's authorized acts, not just those required of him.

The Court also finds a factual dispute over whether the Driver acted on his own initiative, or whether he acted with the intention to further Tesla's business, when deciding to stop for gas. Ante, at ––––. This determination turns on the parties’ purportedly conflicting views over whether Tesla's informal refueling policy amounted to a “required task” or whether it amounted to a mere “recommendation.” Id. at ––––. And based on this conflicting evidence, the Court concludes that a “reasonable jury” could have decided (contrary to the trial court's ruling) that the Driver stopped to refuel on his own volition to “benefit himself or as a favor to fellow employees.” Id. at ––––.

Again, the Court creates a material-fact issue where none exists.

First, it mischaracterizes the record to label the refueling policy as a mere “recommendation.” As the Driver attested, his manager “stated that I have to do this; I need to do it.” App. Vol. 2, p. 165 (emphasis added). And neither the trial judge nor our colleagues on the appellate bench dismissed or ignored the service manager's testimony while crediting the Driver's “testimony as to his subjective belief and intent,” as Tesla insists. See Pet. to Trans. at 16. In fact, testimony from the manager himself aligns with the Driver's understanding of the service center's expectations. When first asked about the “rule,” the manager stated that refueling was required when there was less than a “[q]uarter tank,” rather than “half a tank” as counsel had mistakenly assumed. App. Vol. 3, p. 82. Then, after stating it “wasn't a rule,” the manager immediately clarified that it “was not an official corporate policy” or “written policy.” Id. Rather, he explained, it was more of a “courtesy” or an “informal rule” that was “implemented” at the service shop after discussing it with employees at a service-team meeting. Id. at 82, 94. And that “informal rule,” though reached by “consensus” of the service team, was “something [he] decided as the service manager.” Id. at 82, 94, 198 (emphasis added). In short, there was an expectation that, before returning to the service center, an employee “should” refuel the truck if it fell below a quarter tank, even if it wasn't a required job duty. App. Vol. 2, p. 201 (emphasis added).

Second, even if the gas policy were a mere “recommendation” or a suggested “courtesy,” an employee's actions need not be required by the employer. Rather, “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.” Cox v. Evansville Police Dep't, 107 N.E.3d 453, 461 (Ind. 2018) (emphasis added); see also ante, at –––– (acknowledging the same rule). And there's no question here the Driver was authorized, at the very least, to refuel the service truck as a courtesy to his fellow employees. Why else would the service truck contain a dedicated gas card for the employee's use? See App. Vol. 3, pp. 27, 70.

Finally, while insisting that the Driver could have gassed up “to benefit himself,” the Court cites no record evidence suggesting that he acted for anyone's interest other than his employer's. See ante, at ––––, ––––. Nor does it explain why refueling would have benefited the Driver personally since it wasn't his truck. And even if the Driver had stopped to refuel “as a favor to fellow employees,” see id. at ––––, acting with such intent cuts against the Court's conclusion. Indeed, gassing up so that fellow employees won't have to later doesn't just benefit those employees personally; it ultimately saves company time and resources. Whether “motivated by an intention to benefit the employee himself” or his fellow co-workers, an employee's act still falls within the scope of employment if it “appreciably furthers the employer's business,” which it unquestionably did here. See id. at –––– (quoting Stropes, 547 N.E.2d at 247).

Conclusion

For the reasons above, I respectfully dissent from the Court's decision to reverse the trial court's summary-judgment ruling on the issue of Tesla's vicarious liability. On all other issues, I concur.

FOOTNOTES

1.   Even if the Driver had used the truck for personal reasons the night before the accident (e.g., to pick up a burger on the way home), that's irrelevant. What matters is what he was doing the morning the accident occurred while driving to work.

Slaughter, Justice.

Massa, J., and Molter, J., concur. Goff, J., concurs in part and dissents in part with separate opinion in which Rush, C.J., joins.