Indiana Court of Appeals Finds CVS Potentially Liable for Gun-Wielding Security Guard

The Indiana Court of Appeals recently reversed the grant of summary judgment to CVS Pharmacy finding a reasonable fact-finder could conclude that a security guard at one of its stores was acting as an employee when he intimidated, confined, and pointed a gun at a patron. In Cardenas v. Hook-SupeRx, L.L.C., 19-year-old Adrian Cardenas (“Cardenas”) visited Indianapolis from Illinois to participate in a semi-pro, third division soccer match. He and two of his teammates went to a CVS in Indianapolis on Lafayette Road for snacks and drinks. A security guard at the front doors, Jeremiah Sedam (“Sedam”), told Cardenas to remove his hoodie. Sedam looked aggressively at Cardenas and said, “you better [omitted] listen to me.” Cardenas took off his hoodie. 

After using the restroom, Cardenas and his teammates went to look at drinks and were talking and laughing. Without thinking about it, Cardenas put his hoodie back on. Sedam started yelling and cursing at him from across the store, calling him names. Cardenas again removed his hoodie and he and his teammates went to leave, with Sedam continuing to curse at Cardenas.  As he was leaving, Cardenas put his hoodie back on. Sedam said, “oh, you want me to come take that [omitted] off,” and then he began pulling on Cardenas’ hoodie. When Cardenas broke free, Sedam pulled out a gun, placed Cardenas in a chokehold, and held the gun against Cardenas’ head, while using racial slurs and stating he would “kill this guy.” The police responded to a bystander’s call, and after reviewing surveillance video, released Cardenas. Sedam was arrested a few weeks later and ultimately pled guilty to felony intimidation, criminal confinement, and pointing a firearm.

Cardenas filed a civil lawsuit against CVS, Single Source Security d/b/a Protos Security (“Protos”), a security company that CVS had contracted with, Protos’ subcontractor and Sedam’s employer, Shield Protection Solutions, LLC (“Shield”), and Sedam. CVS moved for summary judgment arguing that it could not be held liable for Sedam’s actions because Sedam was not its employee but an independent contractor. Under the doctrine of respondeat superior, an employer can be held liable for the acts of an employee done within the course and scope of employment. However, there is generally no liability for the acts of independent contractors.

Here, CVS had entered into a service agreement with Protos, which provided that, among other things, Protos was to perform management of security guard services; security guards were to provide customer support, managerial support, brand support, and record-keeping; Protos could use its own employees and/or subcontractors, all of whom were characterized as independent contractors and not agents or employees of CVS in the service agreement; all employees or independent contractors of Protos would have the requisite knowledge, expertise, and qualifications to perform the work; and Protos would provide the security services in accordance with CVS’s requirements as determined in CVS’s sole discretion, including numerous stated standards, responsibilities, duties, and requirements for the security services. 

Under Indiana law, a person’s classification as an employee or an independent contractor is generally a question of fact, unless the facts are undisputed, in which case courts can determine the classification as a matter of law. In determining whether someone is an employee or independent contractor, courts look at ten factors, with no single factor being dispositive. However, the “leading factor” is the first factor—control, with the Indiana Supreme Court having noted that an employee is someone employed to perform services and subject to the other’s control or right to control with respect to the physical conduct in the performance of services.

The ten factors courts look at in distinguishing an employee from an independent contractor are: 

1. the extent of control which, by the agreement, the master may exercise over the details of the work;
2. whether or not the one employed is engaged in a distinct occupation or business;
3. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
4. the skill required in the particular occupation;
5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
6. the length of time for which the person is employed;
7. the method of payment, whether by the time or by the job;
8. whether or not the work is a part of the regular business of the employer;
9. whether or not the parties believe they are creating the relation of master and servant; and
10. whether the principal is or is not in business.

Here, the Court went through each of the factors, with reference to prior case precedent. The Court found factors 1, 3, 4, 7, and 10 favored classifying Sedam as an employee, whereas factors 2 and 9 favored classifying Sedam as an independent contractor. The Court found factors 5, 6, and 8 were neutral as to whether Sedam was an employee or independent contractor. For example, as to the leading first factor, control, the Court found the numerous stated requirements in the service agreement showed that CVS controlled numerous details of the work the security guards were to perform, including how they were to perform their work and their schedules, location within the store, and interaction with customers. Ultimately, the Court of Appeals found a reasonable fact-finder could conclude that Sedam was, for respondeat superior purposes, an employee of CVS when he attacked and pointed a gun at Cardenas, therefore making CVS liable for his actions. The Court accordingly reversed the trial court’s entry of summary judgment in favor of CVS.

You can read the full opinion here.