Kyle Kaszuba, et al. v. AnnaMarie Dugan Norris, as Guardian of the Estate of Christopher Dugan, an incompetent person

Pursuant to Indiana Appellate Rule 65(E), the trial court and parties shall not
take any action in reliance upon this opinion until it is certified.
I N 	T H E
Indiana Supreme Court
Supreme Court Case No. 26S-CT-169
Tesla, Inc., f/k/a Tesla Motors, Inc., and Kyle Kaszuba,
Appellants-Defendants,
–v–
Annamarie Dugan Norris, as Guardian of the Estate
of Christopher Dugan, an Incompetent Person,
Appellee-Plaintiff.
Argued: June 30, 2026 | Decided: November 4, 2026
Appeal from the Marion Superior Court
No. 49D04-1705-CT-18411
The Honorable Marianne L. Vorhees, Senior Judge
The Honorable Clayton Graham, Judge
On Petition to Transfer from the Indiana Court of Appeals
No. 25A-CT-198
Opinion by Justice Slaughter
Justices Massa and Molter concur.
Justice Goff concurs in part and dissents in part with separate opinion
in which Chief Justice Rush joins.

Indiana Supreme Court | Case No. 26S-CT-169 | November 4, 2026 	Page 2 of 15
Slaughter, Justice.
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 negli-
gence 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 ex-
ceptions, 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 plain-
tiff 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 as-
sistant 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 re-
turn 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

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began his morning commute in the service truck from his home west of
Indianapolis to the Tesla service center on the northeast side of Indianapo-
lis, 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 Indian-
apolis. 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 accel-
erated 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 act-
ing in the scope of his employment, and that Tesla was vicariously liable
for Kaszuba’s negligence. The trial court later found Dugan to be incom-
petent, so it substituted Dugan’s mother and guardian, Annamarie Dugan
Norris, as plaintiff. Norris and Kaszuba each moved for summary judg-
ment 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 judg-
ment. It argued that the accident occurred while Kaszuba was commuting,
so his conduct fell outside the scope of employment under Indiana’s go-
ing-and-coming rule.
The trial court granted Norris’s and Kaszuba’s motions for partial sum-
mary 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

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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 in-
fected the verdict and resulted in cumulative, reversible error. Specifically,
Tesla challenged the trial court’s admission of Dugan’s testimony concern-
ing 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 vio-
lated the Indiana Rules of Professional Conduct and “was aimed at rat-
tling 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 communica-
tion 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 lia-
bility. Though noting that commuting is not normally within the scope of

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one’s employment, the panel held that “Kaszuba was stopping for gas
solely to comply with his employer’s policy and immediately before re-
turning 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 lia-
bility 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 “encour-
aged 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 sum-
mary 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 em-
ployment with Tesla at the time of his accident with Dugan.
We begin with the doctrine of vicarious liability, including the com-
mon-law going-and-coming rule, which informs whether an employee
commuting to work acts within the scope of employment. Then, we

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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 dis-
crete decision to stop for gas that morning was within his scope of em-
ployment. We close by summarizing how the trial court should proceed
on remand.
A
The scope-of-employment question governs whether Tesla is vicari-
ously 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 liabil-
ity 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 “inju-
rious act must be incidental to the conduct authorized or it must, to an ap-
preciable 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 em-
ployed to perform”. Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003)
(quoting Restatement (Second) of Agency § 229 cmt. b (1958)). An em-
ployee’s act that appreciably furthers the employer’s business may still be
within the scope of employment “even if the act was predominantly moti-
vated 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:

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An employee acts within the scope of employment when per-
forming work assigned by the employer or engaging in a
course of conduct subject to the employer’s control. An em-
ployee’s act is not within the scope of employment when it oc-
curs 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, 161 N.E.2d 617, 618 (Ind. 1959) (per curiam). That an em-
ployee 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 usu-
ally 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).

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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 as-
sessing 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 per-
sonal 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 tes-
tified 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

Indiana Supreme Court | Case No. 26S-CT-169 | November 4, 2026 	Page 9 of 15
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 as-
signment and return the truck to the service center. Tesla, for its part,
points to evidence that Kaszuba took the truck home for a personal rea-
son—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 us-
ing 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 employ-
ment.” Post, at 3 (emphasis in original). They point to both Aichinger’s ap-
proval 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.

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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 employ-
ment 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 busi-
ness.” 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 de-
cision to get gas from a personal decision to one done in service of his em-
ployer. And Kaszuba noted in his discovery responses that he “was stop-
ping 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 chal-
lenges whether Kaszuba’s decision to get gas was pursuant to the policy.
Aichinger, the service manager, testified at his deposition that the gas pol-
icy “wasn’t a rule. It was not an official corporate policy. It was just some-
thing 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 disci-
plined 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.”

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The dissent says we “mischaracterize[]” the record by calling Tesla’s
policy a mere “recommendation”. Post, at 5. We do not mischaracterize
the record by quoting it. The service manager testified in a sworn state-
ment 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 recommenda-
tion, is a central question, and it was the basis for the trial and appellate
courts’ decisions finding summary judgment appropriate. Kaszuba’s stop-
ping for gas, the appellate panel held, was “not incidental to his commute
but was instead a required task integral to returning the employer’s prop-
erty 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 “re-
quired 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 ap-
ply 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 cus-
tomer and we need gas.” Because the informal gas policy was a courtesy
to fellow employees during their workday, it would be reasonable to be-
lieve 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

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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 Cas-
ualty Insurance Co., 686 N.E.2d 102 (Ind. 1997). There, an employee at-
tended an evening party at a coworker’s home, where he consumed sev-
eral alcoholic beverages. Id. at 105. Despite his employer’s rule that em-
ployees 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 af-
firmed 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 sum-
mary judgment, we noted that “[a]cts done ‘on the employee’s own initia-
tive, with no intention to perform [them] as part of or incident to the ser-
vice 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 be-
cause his boss gave him money for gas, and he was going to fill up in ac-
cordance 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 testi-
fied that he stopped because of the gas policy. But, based on Tesla’s con-
flicting 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 sum-
mary judgment. Thus, a jury must decide whether Kaszuba’s getting gas

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was a required task mandated by Tesla and so within the scope of em-
ployment. 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 6. 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 com-
muting 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 com-
mute alone. This conclusion comports with our summary-judgment stand-
ard. 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 sum-
mary 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 ap-
peals 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.

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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 speci-
fied 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 imprac-
ticable 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 ju-
dicial 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 judg-
ment for Norris and Kaszuba, and against Tesla, on the issue of Tesla’s vi-
carious 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 Row-
ley 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.
Massa, J., and Molter, J., concur.
Goff, J., concurs in part and dissents in part with separate opinion in
which Rush, C.J., joins.
A T T O R N E Y S F O R A P P E L L A N T – T E S L A , I N C .
Daniel E. Pulliam
Brian J. Paul
Andrea Roberts Pierson
Faegre Drinker Biddle & Reath LLP
Indianapolis, Indiana

Indiana Supreme Court | Case No. 26S-CT-169 | November 4, 2026 	Page 15 of 15
Ellyde Thompson
Chelsea Sincox
Quinn Emanuel Urquhart & Sullivan, LLP
New York, New York
Matthew “Alex” Bergjans
Quinn Emanuel Urquhart & Sullivan, LLP
Los Angeles, California
A T T O R N E Y S F O R A P P E L L A N T – K Y L E K A S Z U B A
Lisa A. Baron
Clark Johnson & Knight, Ltd.
Carmel, Indiana
Paul B. Johnson
Elizabeth M. Wheaton
Clark Johnson & Knight, Ltd.
Merrillville, Indiana
A T T O R N E Y S F O R A P P E L L E E
Steven David
Alexander P. Pinegar
Rachel Dever
Church Church Hittle + Antrim
Noblesville, Indiana
Lee C. Christie
Katherine M. Marshall
Christie Farrell Lee & Bell P.C.
Indianapolis, Indiana

Indiana Supreme Court | Case No. 26S-CT-169| November 4, 2026 Page 1 of 7
Goff, J., concurring in part and dissenting in part.
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 2, 7. Under that rule, an
employee’s commute does not, standing alone, bring his or her actions

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within the scope of employment for purposes of vicarious liability. Biel,
Inc. v. Kirsch, 161 N.E.2d 617, 618 (Ind. 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 6, 7–13. 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 9
(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.

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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 7 (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
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.

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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 9, 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 6
(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.

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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 10. 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 11. 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 12.
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

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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 6 (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 12, 13. 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 12, 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 6
(quoting Stropes, 547 N.E.2d at 247).

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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.
Rush, C.J., joins.