FILED
Aug 10 2026, 8:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
J.M.,
Appellant-Plaintiff
v.
Catucky Derby, Inc.,
Appellee-Defendant
August 10, 2026
Court of Appeals Case No.
26A-CT-122
Appeal from the Harrison Circuit Court
The Honorable John T. Evans, Judge
Trial Court Cause No.
31C01-2509-CT-19
Opinion by Chief Judge Tavitas
Judges Bradford and Felix concur.
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 1 of 16
Tavitas, Chief Judge.
Case Summary
[1] J.M. appeals the trial court’s dismissal of her amended complaint against
Catucky Derby, Inc. (“Employer”). After J.M. alleged that she was raped by a
fellow employee of Employer, J.M. filed an amended complaint against
Employer and alleged claims of both direct negligence and vicarious liability.
The trial court, however, dismissed J.M.’s amended complaint, and J.M. now
appeals. Concluding that the trial court erred by dismissing J.M.’s amended
complaint, we reverse and remand. 1
Issues
[2] J.M. raises two issues, which we restate as:
I. Whether the trial court properly dismissed J.M.’s direct
negligence claims.
II. Whether the trial court properly dismissed J.M.’s vicarious
liability claim.
Facts
[3] J.M. filed a complaint against Employer on September 15, 2025, which she
amended the following day. In the amended complaint, J.M. alleged the
following: Employer is a “contracted service provider for FedEx Ground
1
We held oral argument in this matter on July 21, 2026. We thank counsel for their presentations.
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 2 of 16
providing delivery services for FedEx.” Appellant’s App. Vol. II p. 7.
Employer is owned by Jonathan Cupp (“Kirk”). Kirk’s brother, Chad Cupp
(“Chad Cupp” or “Cupp”), was “an employee, representative, and/or agent” of
Employer. Id. Beginning on September 1, 2023, J.M. was employed by
Employer. J.M. was sent to St. Louis, Missouri, to serve “on a contingency
team to take over delivery routes as needed.” Id. at 8.
[4] “While there, [J.M.] was staying in a property setup by, owned by, rented by,
managed by, controlled by, and/or supervised by” Employer. Id. Chad Cupp
was also assigned to St. Louis for his employment with Employer.
On or about September 17, 2023, while [J.M.] and Chad Cupp
were in St. Louis, Missouri for their employment with
[Employer], after spending an evening out with a group of coworkers of [Employer], Chad Cupp aggressively and forcefully
sexually assaulted and raped [J.M.] in a property setup by,
owned by, rented by, managed by, controlled by, and/or
supervised by [Employer].
Id.
[5] J.M. alleged that Employer “deliberately and/or negligently cultivated and
tolerated a workplace culture that normalized excessive drinking and
emboldened inappropriate behavior among its employees leading to this sexual
assault and rape.” Id. Further, “Chad Cupp was in the course and scope of his
employment with [Employer] at the time of the sexual assault and rape.” Id.
J.M. also alleged:
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 3 of 16
15) [Employer] is vicariously liable for the actions of Chad
Cupp.
16) [Employer] owed [J.M.] a duty of reasonable care to provide
for her safety and well-being and breached said duty.
17) [Employer] was negligent and said negligence caused severe
and permanent injuries to [J.M.].
18) Further, Chad Cupp and [Employer’s] actions constituted
intentional and negligent infliction of emotional distress causing
injuries to all Plaintiffs [sic].
19) [Employer] was negligent and breached its duty of
reasonable care by, including, but not limited to:
a. Failing to supervise Chad Cupp;
b. Failing to protect [J.M.] from sexual, physical,
emotional and psychological abuse;
c. Failing to control and supervise their employee(s)
and/or actual, implied or apparent agent(s), including, but
not limited to, Chad Cupp;
d. Failing to warn [J.M.], of Chad Cupp’s dangerous
propensities;
e. Failing to protect [J.M.] from Chad Cupp;
f. Failing to warn of a dangerous condition on the
premises created by the presence of Chad Cupp;
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 4 of 16
g. Failing to monitor its employees;
h. Failing to put appropriate safeguards in place to
prevent [J.M.] from being sexually assaulted and raped;
i. Failing to appropriately implement policies and
protocols into effect;
j. Failing to provide appropriate resources and protections
to its employee, [J.M.];
k. Negligently hiring and retaining Chad Cupp;
l. Failing to properly investigate allegations of sexual
misconduct;
m. Failing to properly intervene when their
agent/employee’s sexual misconduct that [sic] was or
should have been known; and
n. Otherwise failing to provide [J.M.] adequate care,
maintenance, and treatment according to her individual
needs.
20) [Employer] is vicariously liable for the negligence of Chad
Cupp who was negligent by, including, but not limited to:
a. Sexually abusing [J.M.];
b. Physically abusing [J.M.];
c. Raping [J.M.];
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 5 of 16
d. Emotionally abusing [J.M.]; and
e. Psychologically abusing [J.M.].
21) Some of [Employer’s] conduct was egregious and rose to the
level of gross and willful negligence.
Id. at 9-10.
[6] On November 19, 2025, Employer filed a motion to dismiss J.M.’s amended
complaint. Employer argued that it was entitled to dismissal of J.M.’s vicarious
liability claim and J.M.’s negligent retention and supervision claims. In
response, J.M. argued that her amended complaint also raised premises liability
and negligent security claims, which Employer did not address in its motion to
dismiss. Moreover, J.M. argued that Employer “places the Court in a position
of being asked to make factual determinations outside the scope of the
pleadings without any development of the record. As such, the request for
dismissal is premature, and would be more proper at the summary judgment
stage once discovery is completed and the record has been developed.” Id. at
23.
[7] On December 16, 2025, the trial court granted Employer’s motion to dismiss
pursuant to Indiana Trial Rule 12(B)(6). J.M. now appeals.
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Discussion and Decision
I. Standard of Review
[8] J.M. appeals the trial court’s dismissal of her amended complaint pursuant to
Indiana Trial Rule 12(B)(6). “Appellate review of a ruling on a Trial Rule
12(B)(6) motion is de novo.” Safeco Ins. Co. of Ind. v. Blue Sky Innovation Grp.,
230 N.E.3d 898, 901 (Ind. 2024). “A motion to dismiss under Rule 12(B)(6)
tests the legal sufficiency of a complaint: that is, whether the allegations in the
complaint establish any set of circumstances under which a plaintiff would be
entitled to relief.” Id. “Appellate courts do not test the sufficiency of the facts
alleged regarding their adequacy to provide recovery but test the sufficiency of
whether a legally actionable injury has occurred in a plaintiff’s stated factual
scenario.” Id. at 902. “The appellate court accepts the alleged facts as true,
drawing every reasonable inference in favor of the non-moving party.” 2 Id.
“An order to dismiss is affirmed when it is apparent that the facts alleged in the
challenged pleading are incapable of supporting relief under any set of
circumstances.” Id. (internal quotation omitted). Dismissal under Rule
12(B)(6) is “rarely appropriate.” WEOC, Inc. v. Niebauer, 226 N.E.3d 771, 774
(Ind. 2024). This standard imposes a high burden on the moving party (here,
Employer). Kelly v. Sommer, 255 N.E.3d 1156, 1160 (Ind. Ct. App. 2025).
2
The parties’ arguments raise “facts” that were not included in the amended complaint. We, however,
cannot consider those “facts.”
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 7 of 16 [9] Further, Indiana adheres to the principles of notice pleading. Shields v. Taylor,
976 N.E.2d 1237, 1244 (Ind. Ct. App. 2012). Indiana Trial Rule 8(A) merely
requires “(1) a short and plain statement of the claim showing that the pleader
is entitled to relief, and (2) a demand for the relief to which the pleader deems
entitled.” “Under Indiana’s notice pleading system, a pleading need not adopt
a specific legal theory of recovery to be adhered to throughout the case.”
Shields, 976 N.E.2d at 1244. “Notice pleading merely requires pleading the
operative facts so as to place the defendant on notice as to the evidence to be
presented at trial.” Id. at 1245. “Therefore, under notice pleading the issue of
whether a complaint sufficiently pleads a certain claim turns on whether the
opposing party has been sufficiently notified concerning the claim so as to be
able to prepare to meet it.” Id. “A complaint's allegations are sufficient if they
put a reasonable person on notice as to why a plaintiff sues.” Safron Cap. Corp.
v. Elanco Animal Health Inc., 267 N.E.3d 463, 472-73 (Ind. Ct. App. 2025), trans.
denied.
II. Direct Negligence Claims
[10] First, J.M. argues that the trial court erred by dismissing her direct negligence
claims against Employer. In the amended complaint, J.M. raised numerous
claims and, at oral argument, J.M. clarified that she was asserting claims of
premises liability and negligent supervision, retention, hiring, and security.
[11] In its motion to dismiss, Employer requested dismissal of J.M.’s claims of
negligent supervision and retention. In her response to the motion to dismiss,
J.M. noted that her amended complaint raised additional direct negligence
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 8 of 16
claims against Employer. The trial court, however, dismissed all of J.M.’s
direct negligence claims. On appeal, J.M. argues that the trial court erred by
dismissing claims that Employer did not even seek to dismiss. 3 “[O]rdinarily, ‘a
trial court may not sua sponte dismiss an action unless the court lacks
jurisdiction or is otherwise authorized by statute or the rules of procedure.’”
Dorsett v. Lubitz, 213 N.E.3d 1058, 1062 (Ind. Ct. App. 2023) (quoting Tracy v.
Morell, 948 N.E.2d 855, 862 (Ind. Ct. App. 2011)). Neither exception is present
here. Accordingly, we agree that the trial court erred by dismissing J.M.’s
premises liability and negligent security claims.
[12] As for J.M.’s negligent supervision and retention claims, we also agree that the
trial court erred by dismissing these claims. “[T]o prevail on a claim of
negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2)
breach of duty by allowing conduct to fall below the applicable standard of care;
and (3) compensable injury proximately caused by defendant’s breach of duty.”
Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
“Absent a duty there can be no negligence or liability based upon the breach.”
Id. “Whether a duty exists is a question of law for the court to decide.” Id. at
386-87. In negligence cases, even summary judgment is “rarely appropriate.”
Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). “This is because negligence
3
On appeal, Employer argues that it sought dismissal of J.M.’s entire complaint, but its motion did not
directly address the premises liability and negligent security claims. Employer also argues that its duty
argument applies to all of J.M.’s direct negligence claims. We conclude, however, that Employer did not
raise these arguments below.
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 9 of 16
cases are particularly fact sensitive and are governed by a standard of the
objective reasonable person—one best applied by a jury after hearing all of the
evidence.” Id.
[13] This Court has held: “Negligent retention and supervision is a distinct tort from
respondeat superior; it may impose liability on an employer when an employee
‘steps beyond the recognized scope of his [or her] employment to commit a
tortious injury upon a third party.’” Scott v. Retz, 916 N.E.2d 252, 257 (Ind. Ct.
App. 2009) (quoting Clark v. Aris, Inc., 890 N.E.2d 760, 765 (Ind. Ct. App.
2008), trans. denied). “Negligent retention and supervision is a species of
negligence and has the following elements: 1) a duty of care owed by an
employer to a third person; 2) breach of that duty; and 3) injury to the third
person proximately caused by the employer’s breach.” Id.
[14] Employer argues that it did not have a duty to J.M., but our Courts have held
that the “duty of an employer to a person harmed by the conduct of an
employee” is as follows: 4
To determine whether an employer owed a duty of care to the
plaintiff—i.e., “a person harmed by the conduct of an
4
Employer argues that we should apply the three-part test found in Webb v. Jarvis, 575 N.E.2d 992, 994 (Ind.
1991), to determine whether a duty exists. Our Supreme Court, however, has held that “the three-part
balancing test articulated in Webb, is a useful tool in determining whether a duty exists, but only in those
instances where the element of duty has not already been declared or otherwise articulated.” N. Ind. Pub.
Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003). “For example, there is no need to apply Webb to
determine what duty a business owner owes to its invitees.” Id. The duty of an employer to a person harmed
by the conduct of an employee has already been delineated, and we need not apply Webb here.
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 10 of 16
employee”—Indiana courts apply Section 317 of the Restatement
(Second) of Torts. This section provides as follows:
A master is under a duty to exercise reasonable care so to
control his servant while acting outside the scope of his
employment as to prevent him from intentionally harming
others or from so conducting himself as to create an
unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master
or upon which the servant is privileged to enter only
as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the
ability to control his servant, and
(ii) knows or should know of the necessity and
opportunity for exercising such control.
Gue v. Triple E Prop. Mgmt., LLC, 276 N.E.3d 1277, 1286 (Ind. Ct. App. 2026)
(quoting Restatement (Second) of Torts § 317) (internal citation omitted), trans.
denied.
[15] Relying upon summary judgment cases rather than motion to dismiss cases,
Employer argues that it did not have a duty to J.M.. J.M., however, argues that
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 11 of 16
Employer owed her a duty; her amended complaint satisfied the notice pleading
standard; and dismissal was improper. J.M. alleged that Cupp raped her “in a
property setup by, owned by, rented by, managed by, controlled by, and/or
supervised by [Employer]”; that Employer knew or should have known of
Cupp’s propensities; and that Employer should have warned J.M. of Cupp’s
dangerous propensities. Appellant’s App. Vol. II p. 8. Here, these allegations
are sufficient to establish a duty under the Restatement (Second) of Torts § 317
and “put a reasonable person on notice as to why a plaintiff sues.” Safron Cap.
Corp., 267 N.E.3d at 472-73. Accordingly, we conclude that the trial court
erred by dismissing J.M.’s direct negligence claims.
III. Vicarious Liability Claim
[16] Next, J.M. argues that the trial court erred by dismissing her vicarious liability
claim. “Under the doctrine of respondeat superior, an employer may be held
vicariously liable for torts committed by an employee acting within the scope of
his employment.” Gue, 276 N.E.3d at 1287 (citing Barnett v. Clark, 889 N.E.2d
281, 283 (Ind. 2008)). “Whether an act falls within the scope of employment is
generally a question of fact.” Id. (quoting Cox v. Evansville Police Dep’t, 107
N.E.3d 453, 460 (Ind. 2018)). In general, the scope of employment is “ill-suited
for resolution at this early stage of the lawsuit.” Kelly, 255 N.E.3d at 1162.
[17] “A court may resolve a scope-of-employment issue as a matter of law only
‘when the relevant facts are undisputed and would not allow a jury to find that
the tortious acts were within the scope of employment[.]’” Gue, 276 N.E.3d at
1287 (quoting Cox, 107 N.E.3d at 460).
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 12 of 16
An injurious act was within the scope of employment if it (1) was
incidental to the conduct authorized; or (2) to an appreciable
extent, further[ed] the employer’s business. An act is incidental
to an employee’s job duties if it originated in activities closely
associated with the employee’s job. In deciding whether an
employee’s wrongful act was incidental to job duties or
originated in activities closely associated with the job, a factfinder
may consider (1) whether the wrongful act was of the same
general nature as [the] authorized job duties; (2) whether the
wrongful act [was] intermingled with authorized job duties; and
(3) whether the employment provided the opportunity or the
means by which to commit the wrongful act.
Id. (internal citations and quotations omitted). “Courts consider various
factors, including the employee’s purpose and authorized duties, and the
employer’s policies and degree of control.” Kelly, 255 N.E.3d at 1163 (citing
Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000); Stropes ex
rel. Taylor v. Heritage House Child.’s Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247
(Ind. 1989)).
[18] “[T]he 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 selfgratification or self-benefit; that breach a sacred professional duty; or that are
egregious, malicious, or criminal.” Cox, 107 N.E.3d at 461. The scope of
employment encompasses “activities that the employer delegates to employees
or authorizes employees to do, plus employees’ acts that naturally or
predictably arise from those activities.” Id. “When tortious acts are so closely
associated with the employment that they arise naturally or predictably from
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 13 of 16
the activities an employee was hired or authorized to do, they are within the
scope of employment, making the employer liable.” Id. at 462.
[19] J.M. emphasizes that even criminal acts may fall within the scope of
employment and that after-hours activities during work travel may be within
the scope of employment. J.M. argues that the circumstances here are unique
due to the Employer-provided housing, the sibling relationship between Cupp
and the owner of Employer, the workplace culture, and the work travel
situation. According to J.M., the scope of employment must be developed
during discovery, and this matter is more appropriate for summary judgment
proceedings than dismissal under Trial Rule 12(B)(6).
[20] Employer contends that the assault occurred during a night out with coworkers, and no allegations in the amended complaint demonstrate that Cupp
was acting within the scope of his employment. Relying upon Trail v. Boys &
Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 136 (Ind. 2006), Employer
argues that J.M. failed to “set out the operative facts of the claim” showing the
assault occurred within the scope of Cupp’s employment.
[21] Our Supreme Court, however, has emphasized that “[w]hether an act falls
within the scope of employment is generally a question of fact.” Cox, 107
N.E.3d at 460. A scope of employment determination is “ill-suited for
resolution” by a motion to dismiss. Kelly, 255 N.E.3d at 1162. At this stage of
the proceedings, the record does not indicate, for example, Cupp’s authorized
job duties or Employer’s policies and degree of control. These are facts in
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 14 of 16
Employer’s knowledge and control, and discovery is necessary. As such, we
agree with J.M. that the scope of employment determination is a question of
fact ill-suited for dismissal.
[22] As with the direct negligence claims, J.M. included sufficient facts in her
amended complaint to “put a reasonable person on notice as to why a plaintiff
sues.” Safron Cap. Corp., 267 N.E.3d at 472-73. Under these circumstances, we
conclude that the trial court erred by dismissing J.M.’s vicarious liability claim.
Conclusion
[23] The trial court erred by dismissing J.M.’s amended complaint. Accordingly, we
reverse and remand for further proceedings consistent with this opinion.
[24] Reversed and remanded.
Bradford, J., and Felix, J., concur.
ATTORNEYS FOR APPELLANT
Brandon E. Tate
Katherine A. Piscione
Waldron Tate Land LLC
Indianapolis, Indiana
Amy M. Davis
Law Office of Amy M. Davis, LLC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Kristen E. Mueller
Daniel Polsby
Clausen Miller, P.C.
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 15 of 16 Chicago, IL
Paige M. Neel
Clausen Miller, P.C.
Michigan City, Indiana
Court of Appeals of Indiana Opinion 26A-CT-122 August 10, 2026 Page 16 of 16