IN THE SUPREME COURT OF OHIO CASE NO.
Appeal from the Court of Appeals Eleventh Appellate District Geauga County, Ohio 084 Case No. 2007-G-2769
EUGENE WHELAN, et al
Plaintiffs-Appellees
v.
VANDERWIST OF CINCINNATI, INC., et al.,
Defendant-Appellant
DEFENDANT/APPELLANT VANDERWIST OF CINCINNATI, INC.'S MEMORANDUM IN SUPPORT OF JURISDICTION
JOHN T. MCLANDRICH (0021494) THOMAS WILSON (0038933) THOMAS S. MAZANEC (0009050) Kelley & Ferraro LLP FRANK H. SCIALDONE (0075179) 2200 Key Tower, 127 Public Square Mazanec, Raskin, Ryder & Keller Co., L.P.A. Cleveland, OH 44114 100 Franklin's Row (216) 575-0777 34305 Solon Road (216) 575-0799 - Fax Cleveland, OH 44139 Email: twilsonk-?.kellev-ferraro.com (440) 248-7906 (440) 248-8861 - Fax Email: jmclandrich cc.mrrlclaw.corn Counsel for Plaintiff/Appellee [email protected] fsci aldone(a!m rrlc 1aw. cow
Counsel for Defendant/Appellant Vanderwist of Cincinnati, h1c.
JUh( 10 20[)a CLERK OF CpURT SUPREME COURT OF OHIO TABLE OF CONTENTS
I. EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ...... 1
II. STATEMENT OF THE CASE AND FACTS ...... 2
A. Procedural Background and Limited Record ...... 2
B. Factual Background ...... :... 2
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... 5
Proposition of Law 1: An eniployee inust act within the scope of his einployment to hold his employer vicariously liable for injury to third persons resulting from the use of his personal vehicle ...... :...... 5
1. To be acting within the scope of employment, an employee must be doing work lie was employed to do ...... 6
a. An employee's intent is irrelevant to whether that einployee was doing worlc he was employed to do ...... 6
2. An employee's conduct must fiuther or promote the master's business to be within the scope of employment ...... 6
3. An employee also must be subject to the "control" of the employer at the time of the accident ...... 7
Proposition of Law 2: When an einployee travels back and forth from work, the employee confers no special benefit to the employer other than making the servant's services available at the place they are needed ...... 8
Proposition of Law 3: Serious crimes are not only unexpected but are different from what servants in a lawful occupation are expected to do, and are outside the scope of employnlent ...... 9
CONCLUSION ...... 10
CERTIFICATE OF SERVICE ...... 11
APPENDIX ...... 12
ii TABLE OF AUTHORITIES
Cases
Alcron.v. Holland Oil Co. (2004), 102 Ohio St.3d 1228 ...... 5
Boch v. New York Life Ins. Co. (1964), 175 Ohio St. 458 ...... 5, 7, 8
Curtis v. Gulley (12`n Dist. 2006), 2006 WL 3350621 ...... 8
Estate of Rhome v. USCCS, Ltd. Partnership (5`h Dist. 2007), 2007 WL 1549001 ...... 9
Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83 ...... 6
Patidar v. Tri-State Renovations, Inc. (10' Dist. 2006), 2006 WL 2575726 ...... 8
Siegenthaller v. Jolmson Welded Products, Hic. (2nd Dist. 2006), 2006 WL 3030783 ...... 5
Whelan v. Vanderwist (11"' Dist 2008), 2008-Ohio-2135 ...... 5, 6, 8, 9
iii I. EXPLANATION OF WITY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
The eleventh district court of appeal's unprecedented decision, reversing the trial court,
dramatically departs firom Oliio scope of employment law. The decision improperly exposes
employers to devastating liability for an employee's seriously criminal conduct, even when that
einployee is driving his personal vehicle home after an office party and not engaged in work he
was hired to do. Here, that employee was more than 10 minutes away from the company's
facility when his impaired driving resulted in a very serious accident, which killed his passenger
Edward Whelan. The einployee pled guilty to aggravated vehicular homicide and three counts of
aggravated vehiciilar assault.' Ohio coLU-ts have consistently found that an employee driving to or fiom his job is not within the scope of employment and an employer catniot be held liable.
The eleventh district did not cite an analogous case in support of its respondeat superior position. Computer-assisted research indicates that no Ohio court has found respondeat superior
liability in a situation such as this. If this is the law, employers should know they will be subjected to liability when an employee leaves work to go home for any reason, even if that employee is driving his personal vehicle and not doing work he was hired to do at the time.
Wliile the facts of this case are tragic, the eleventh district improperly alters fundamental law governing whether a person using their vehicle is acting within the scope of employment. Li
1 The paities did not dispute that the police an•ested employee Todd Kinsey after the accident and a grand jury indicted Mr. Kinsey for aggravated vehicular homicide (R.C. § 2903.06); three counts of aggravated vehicular assault (R.C. § 2903.08); driving Lmder the influence (R.C. § 4511.19); operating a motor vehicle without control (R.C. § 4511.202); and failure to stay in proper lanes of travel (R.C. § 4511.25). The parties also did not dispute that, subsequently, the prosecutor prosecuted Mr. Kinsey for these charges. Mr. Kinsey pled guilty to aggravated veliicular homicide and three counts of aggravated velucular assault. See gerierally State of Ohio v. Kinsey, Case No. 05C000022, Geauga County, Forrest W. Burt presiding.
1 reversing the trial court's grant of summary judgment, the court's decision conflicts with the
jurispiudence of various intermediate appellate courts and this Court. It sets a dangerous
precedent that is of constitutional import and makes it worthy of review. This Court should
accept this case to ensure the unifonnity of Ohio case law and to guide the bench and bar in
analyzing ever-present scope of employinent detenninations.
H. STATEMENT OF TI-IE CASE AND FACTS
A. Procedural Background and Limited Record
This case comes before the Court on the appellate court's reversal of the trial court's
decision (and a magistrate's reconunendation) to grant of sununary judginent. The record is very
limited and consists of a few short attaclnnents to the parties' briefs and the 60-page deposition
of Todd Kinsey.
There is no dispute about the basic material facts.
B. Factual Background
Defendant/Appellee Vanderwist of Cincinnati, hic. is in the business of installing sprinkler systems and landscape lighting. On the morning of December 22, 2004, Vandeiwist held an employee holiday party at its Chagrin Falls office. Approximately 15 persons attended the party. Decedent Edward Whelan and employee Todd Kinsey attended the party.
Mr. Kinsey lived in Raveinia, Ohio - 25 miles away from the Vanderwist facility in
Chagrin Falls. Altliough Mr. Kinsey was not scheduled to work on December 22, Vandeiwist employed Mr. Kinsey as an hourly employee. Mr. Kinsey installed lawn sprinlclers and landscape
lighting as a service technician for Vanderwist. During inclenlent weather, Mr. Kinsey worked in the accounts receivable departinent. He never shoveled snow for Vauderwist. Vandeiwist did not
2 employ Decedent Edward Whelan at the time but expected to re-hire him in the spring of 2005 as
seasonal heip.
Although they met at the Vanderwist office, the party attendees later drove to Solon
Freeway Lanes to go bowling after exchanging gifts. The party attendees bowled from
approximately 9:45 to 11:15 a.m. While at the bowling alley, Michael Heis bought two pitchers
of beer. Mr. Heis is a divisional vice president of Vanderwist. A third pitcher of beer may have been purchased by someone else in the group. In addition to the beer, the group ate nachos, chicken tenders aud other appetizers.
The party attendees returned to the Vauderwist office at approximately 11:45 a.m. There; they ate pizza and chicken wings wlule playing cards. The group drarilc some beer, including some brought by Mr. Kinsey and Mr. Kelly, and some beer that may have been taken from the refrigerator.
Snow fell hard during the party on December 22, 2004. At approximately 1 p.m., a representative of another company contacted Vanderwist for assistance with hand snow removal.
Local companies employ Vanderwist to assist with hand snow removal. Some of the Vanderwist einployees, including Mr. Heis, agreed to assist with the hand snow removal.
The location of the snow removal job was nearby the Vanderwist facility in Chagrin
Falls.
There is no dispute that Mr. ICinsey told Mr. Heis he would return to shovel snow after he went home to change his clothes. Despite telling Mr. Heis he would return, Mr. Kinsey testified that lie did not intend to return to the facility to help with hand snow removal. During their time employed with Vandeiwist, Mr. Kinsey and Mr. Whelan had never participated in snow removal operations for Vanderwist.
3 Mr. Kinsey and Mr. Whelan were not scheduled to work the day of the accident.
Vandertivist did not intend to pay for those men to work or attend the holiday party. Mr. Kinsey
did not expect to legitimately be paid to attend the holiday party. Mr. Kinsey and Mr. Whelan, in
fact, did not perfonn any work for Vanderwist on that day.
Mr. IQnsey, Mr. Whelan and one other employee left the Vanderwist office when the
others went to shovel snow. The men got into Mr. Kinsey's car, and Mr. Kinsey drove away. Mr.
Kinsey did not intend to retuni to Vanderwist that day and, in fact, all three of the men "knew
[they] weren't coming back."
About 10 minutes after leaving and miles away from the Vanderwist facility, Mr. Kinsey
crossed the centerline and collided with another velucle, fatally injuring Mr. Whelan. Mr. Kinsey
was driving his personal vehicle from the Vanderwist office to his Ravenna home when the
accident occutred.
The police arrested Mr. Kinsey after the accident. A grand jury indicted Mr. Kinsey for aggravated vehicular homicide (R.C. § 2903.06); three counts of aggravated vehicular assault
(R.C. § 2903.08); driv'nig under the influence (R.C. § 4511.19); operating a motor veliicle without control (R.C, § 4511.202); and failure to stay in proper lanes of travel (R.C. § 4511.25).
Subsequently, the prosecutor prosecuted Mr. Kinsey for these charges. Mr. Kinsey pled guilty to aggravated vehicular homicide and three counts of aggravated vehicular assault. See generally
State of Ohio v. Kinsey, Case No. 05C000022, Geauga County, Forrest W. Burt presiding.
There is no dispute that Vanderwist eiToneously paid Mr. Kinsey for two hours of work and did not try to recover that money. But, the fact that Vandeiwist did not try to recover this wrongfiilly obtained pay does not convert Mr. Kinsey's act of driving into worlcing in the scope of his employment.
4 III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law 1: An employee must act within the scope of his employment to hold his employer vicariously liable for injury to third persons resulting from the use of his personal vehicle.
An einployer is liable for the negligence of his employee in operating the employee's own automobile only where these three elements are satisfied:
(1) that the employer had expressly or iinpliedly authorized the employee to use his own automobile in doing the work he was employed to do [citations omitted;]
(2) that the employee was at the time of such negligence doing work that he was employed to do [citations omitted;] and
(3) that the employee was subject to the direction and control of the einployer as to the operation of the employee's automobile while using it in doing the work he was employed to do (so that the relation between the ernployer and employee in the driving of the automobile would be the relationship of principal and agent or of master and servant as distinguished froin the relationship of employer and independent contractor) [citations omitted].
Siegenthaller v. Jolmson Welded Products. Inc. (2nd Dist. 2006), 2006 WL 3030783, at ¶¶11-14 citing Boch v. New York Life Ins. Co. (1964), 175 Ohio St. 458.
The eleventh district erred in applying a decision dealing with organizational criminal liability for actions of its employees. Whelan v. Vanderwist (11`" Dist 2008), 2008-Ohio-2135 at
¶ 21, citing Akron v. Holland Oil Co. (2004), 102 Ohio St.3d 1228. This is not the correct law:
Assuming it is the coi-rect law, the appellate court fundanzentally erred by expanding and altering established Ohio law governing scope of employment determinations.
5 1. To be acting within the scope of employment, an employee must be doing work he was employed to do.
a. An employee's intent is irrelevant to whether that employee was doing work he was employed to do.
The eleventh district emphasized the purported intent of Mr. Kinsey to come back to worlc (Whelan at ¶¶ 22-35), but lost sight of the material issue of whether Mr. Kinsey was actually perfonning the work he was hired to do at the time the accident had taken place. Boch, supra, mandates that the employee inust "at the time of such negligence doing worlc that he was employed to do."
Mr. Kinsey was not worlcing. He was not employed as a driver. He did not use his personal vehicle for worlc. He used the vehicle to get back and forth to worlc. At the time the accident occurred, Mr. Kinsey was driving home, purportedly with the intent to retum to assist with hand snow shoveling. Mr. Kinsey specifically testified that, despite what he told his employer, he had no intent to return to shovel snow. Despite Mr. ICinsey's intent, he was not perfonning worlc he was hired to do and was not in the scope of his employinent.
The eleventh district detennined that "snow routes were spread out, including some near
Kinsey's home" was indicative that Mr. Kinsey was in the scope of his employment. Whelan at
1[ 38.) This fact is not material. That is because, while snow routes may have been near Mr.
ICinsey's home, the snow shoveling he was going to be doing was next to the Vanderwist facility in Chagrin Falls. The snow shoveling job was not near Mr. ICinsey's home, which was 25 miles away in Ravenna.
2. An employee's conduct must further or promote the master's business to be within the scope of employment.
"Conduct is within the scope of einploynient if it is initiated, in part, to further or promote the master's business." Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 92. 6 The eleventh district adopted an overly expansive and improper view of "benefit" to
Vanderwist. Even assuming Mr. I{insey intended to come back to the Vanderwist facility after he drove 25 miles to his liome, got dressed, and ultimately returned 25 miles to shovel snow, none of this conduct directly benefits Vanderwist. Any employee would then be benefiting his/lier eniployer by pntting on clothes and driving into work from home, or merely leaving work because he/she forgot something and had to return home. This is not the law and should not be.
The eleventh district determined that Mr. Kinsey punched in and wrongfully obtained two hours of pay fiom Vanderwist on the day of the accident. There is no dispute that Mr.
Kinsey was trying to "sneak a paid day off' for attending the party by punching in when he an-ived at the Vanderwist facility at 7:30 or 8 a.m. There also is no dispute that Vanderwist
"erroneously" paid Mr. Kinsey for those two hours and did not try to recover that rnoney. But, the fact that Employer-Vanderwist did not try to recover this wrongfully obtained pay does not convert Mr. Kinsey into acting within the scope of his employment.
hi this case, Mr. ICinsey was dr-iving home purportedly to change his clothes to assist with hand-snow shoveling near his employer's office. Setting aside that Mr. Kinsey had never shoveled snow before and did not do so on the day of the accident, the court determined that his criminal conduct of driving drunk on his way home somehow constitutes acting within the scope of his employment. It does not.
3. An employee also must be subject to the "control" of the employer at the time of the accident.
An eniployer can only be liable for an employee's negligence where work is perforined for the master and the servant is subject to the control of the master in perfonning the work.
Boch v. New Yorlc Life Ins. Co. (1964), 175 Oliio St. 458.
7 Mr. Kinsey was not performing work that was subject to Vanderwist's control when he craslied his personal vehicle while he headed home. This failure is independently dispositive.
Here, no reasonable mind could conclude that Mr. Kinsey, who worked as a spiinkler installer and in the billing department, was working at the time. Moreover, no reasonable mind could conclude that Vanderwist controlled Mr. Kinsey when he crashed more than 10 minutes away from the company's facility wliile driving home putportedly to change his clothes.
Proposition of Law 2: When an employee travels back and forth from work, the employee confers no special benefit to the employer other than making the servant's services available at the place they are needed.
The eleventh district determined that "on a daily basis, many people use their personal vehicles in the course and scope of their employnient" and that this fact is not preclusive of a finding that he was in the course and scope of his employment. (Whelan at ¶ 43.) But, while
"many people" may use their vehicles for work, Mr. Kinsey did not - ever. He used his for coining and going to work.
Ohio law has "consistently held" that an employee who has a fixed and limited place of employnient is as a matter of law not in the course of his employment when traveling to and from his work at that place. See, e.g, Boch v. New York Life Ins. Co. (1964), 175 Ohio St. 458,
462. See, e.g., Patidar v. Tri-State Renovations, Inc. (10`h Dist. 2006), 2006 WL 2575726
(applying rule in respondeat superior context); Curtis v. Gulley (12"' Dist. 2006), 2006 WL
3350621 (sanie).
The eleventh district's decision brings itself into conflict with the various districts noted above.
8 Proposition of Law 3: Serious crimes are not only unexpected but are different from what servants in a lawful occupation are expected to do, and are outside the scope of employment.
The parties never disputed that Mr. Kinsey had been charged with and pled guilty to very serious ciimes. Equating these serious crimes with minor traffic violations, the eleventh district determined that a "criminal act is per se outside of the scope of one's employment" and that "if we were to adopt such a position, every traffic accident where the employee is at fault (failure to yield, speeding, red light violation) would be outside the scope of employment would be
`criminal' act." (Whelan at ¶ 45.)
Certainly, if a taxi driver, for exatnple, were to run a red light and injure someone, he would be acting in the scope of employment. But, Mr. Kinsey's serious criminal act driving his personal vehicle is so remote from his duties (installing landscaping/accounts receivable) and so remote from hand shoveling snow that it is impossible to see how he could be within the scope of his employment.
Such decision brings this case into conflict with other district courts on the issue of whether serious criminal conduct is within the scope of employment. For example, in Estate of
Rhome v. USCCS, Ltd. Partnership (5`h Dist. 2007), 2007 WL 1549001, the court held that an intoxicated employee was not acting within the scope of her employment as a driver for a courier company when she negligently stivck another vehicle. In Rhome, a courier company required its driver to use a motor vehicle to make deliveries. The driver had not yet delivered or retLuned packages to the company. Rather, the packages were in the vehicle at the time of the accident.
The appellate court deteimined that the driver's "act was the criminal operation of lier veliicle," not the delivery. (Id. at *4, ¶ 48.) Like here, the Rhome employee served prison t5me for her actions. The court detennined that "driving intoxicated is a criniinal act and not within
9 the enterprise of U.S. Cargo." (Id.) Certainly, Mr. Kinsey's criminal conduct also is not within the enteiprise of Vanderwist. Vanderwist did not hire W. Kinsey as driver. Ll fact, Mr. Kinsey did not shovel snow as part of his job duties. He installed sprinkler systems and worked in account's receivable. Even if he did shovel snow - which is false - he was not shoveling snow at the time of the accident.
CONCLUSION
This Court should accept jurisdiction.
RespectfulLv submitted,
YDER & KELLER CO., L.P.A.
JOHN T. McLA^RICH (9921494) THOMAS S. M ANE09050) FRANK H. SCIALDONE (0075179) 100 Franklin's Row 34305 Solon Road Cleveland, OH 44139 (440) 248-7906 (440) 248-8861 Fax Email: imclandrich^imrklaw.com tmazan ec(a^mrrlclaw.com fscialdone^a?nn: rkl aw. c om
Counsel for Defendant/Appellant Vanderwist of Cincinnati, Inc.
10 CERTIFICATE OF SERVICE
A copy of the foregoing Memoraudum in Support of Jurisdiction has been sent by regular
U.S. Mail, postage prepaid, June 19, 2008 to the following:
Thomas Wilson, Esq. Kelley & Ferraro LLP 2200 Key Tower 127 Public Square Cleveland, OH 44114
Counsel for Plaintiffs/Appellees
JOHN T. MC ANDRICH THOMAS S. VAZANEC-(0009050) FRANK H. S IALDONE (0075179)
Counsel for Defendaut/Appellant Vanderwist of Cincinnati, Inc.
11 APPENDIX
Decision and Judgment Entry, Eleventh Appellate District ...... 1
12 IN COURT OFAPPEALS THE COURT OF APPEALS MAY 0 5 2008 ELEVENTH APPELLATE DISTRICT DENISE M. KAMlNSKI CLERK OF COURTS GEAUGA COUNTY GEAUGA COUNTY, OHIO
EUGENE WHELAN, EXECUTOR OF O P I N I O N THE ESTATE OF EDWARD WHELAN, DECEASED,
Plaintiff-Appellant, CASE NO. 2007-G-2769 -vs-
VANDERWIST OF CINCINNATI, INC., et al.,
Defendant-Appellee.
Civil Appeal from the Court of Common Pleas, Case No. 05 P, 786,
Judgment: Affirmed in part, reversed in part, and remanded.
James M. Johnson, Kelley & Ferraro, L.L.P., 2200 Key Tower, 127 Public Square, Cleveland, OH 44114 (For Plaintiff-Appellant).
John T. MoLandrich, Thomas S. Mazanec, and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Solon, OH 44139 (For Defendant-Appellee).
TIMOTHY P. CANNON, J.
{$1) Appellant, Eugene Whelan, Executor of the Estate of Edward Whelan, deceased ("Whelan"), appeals the judgment entered by the Geauga County Court of
Common Pleas. The trial court entered summary judgment in favor of appellee,
Vanderwist of Cincinnati, Inc. ("Vanderwist"). {12} In April 2004, Todd Kinsey began working at Vanderwist as a service
technician. Kinsey lived in Ravenna, Ohio and would commute to the Vanderwist
garage in Chagrin Falls, Ohio every morning. Once at the garage, Kinsey would clock
in, obtain his work assignments for the day, and then leave with other Vanderwist
employees in a company vehicle. Kinsey's primary duties included the installation and
maintenance of sprinkler systems and landscape lighting. Mike Heis hired Kinsey and
was his direct supervisor at Vanderwist.
{13} In -December 2004, due to-the change- in weather, the job duties of the
Vanderwist employees changed. Some of the employees were laid off. Other
employees plowed snow. Finally, other employees, including Kinsey, performed tasks
at the office such as year-end inventory'and assisting with accounts receivable. Also,
Heis had previously shown Kinsey the snow removal routes, in case Kinsey was ever
needed to assist with snow removal.
{14} On December 22, 2004, Vanderwist had a company Christmas party.
That day, Kinsey left his residence in Ravenna in the morning. Kinsey picked up Joe
Kelly, another Vanderwist employee, at his residence in Mantua, Ohio. Kinsey and
Kelly arrived at the Vanderwist garage about 8:00 a.m. Upon arriving at the garage,
Kinsey clocked in. About 9:30 a.m., all the employees left the Vanderwist garage and carpooled to a bowling alley in Solon, Ohio. At the bowling alley, the group bowled two games. During that time, the group ate nachos and consumed beer. Heis bought at least two pitchers of beer, and someone else also purchased a pitcher of beer. Kinsey consumed two or three beers at the bowling alley.
2 {¶5) At about 11:30 a.m., the group went back to the Vanderwist garage. On
the way, the group stopped and, according to Kinsey, Heis purchased two 12-packs of
beer. At the Vanderwist garage, the group played Texas Hold'em, a version of poker.
While playing cards, the group ate chicken wings and pizza, and consumed more beer.
Kinsey had two or three more beers at the Vanderwist garage.
{%} On December 22, 2004, a significant snowstorm hit the area. Shortly
before 1:00 p.m., Heis received a call that snow removal was needed. At that time, the
poker game ended, and various employees left to assist-with snow removal. Kinsey,
Kelly, and Edward Whelan ("Edward Whelan") left together in Kinsey's personal car.
Edward Whelan was a former employee of Vanderwist. By December 22, 2004,
Edward Whelan had been laid off by Vanderwist. The group informed Heis that they
were going to go home and change clothes and then return to the Vanderwist garage to
assist with snow removal. Shortly after leaving the Vanderwist garage, Kinsey's vehicle
hit a patch of ice, went left-of-center, and was struck by an on-coming vehicle. Edward
Whelan died as a result of the accident. Kinsey informed the investigating officer that
he and the others were on their way home to change clothes and, then, return to the
Vanderwist garage to assist with snow removal.
{57} Kinsey was laid off by Vanderwist shortly after the accident. He began collecting unemployment benefits at that time. On January 21, 2005, Kinsey was reprimanded for violating Vanderwist's drug and alcohol policy. While the form does not indicate why Kinsey was reprimanded, Diane Baumgartner, a co-owner and the Vice
President of Vanderwist, stated that the reprimand was due to an incident on January
3 20, 2005, when Kinsey and two other Vanderwist employees used a company vehicle to
travel to a store, where they purchased alcohol.
{¶8) Whelan filed a complaint for wrongful death against Kinsey, Vanderwist,
and various unknown defendants. The case was filed in the Cuyahoga County Court of
Common Pleas. After filing its answer, Vanderwist filed a motion for summary
judgment. Vanderwist attached an affidavit from Heis to its motion for summary
judgment. Prior to ruling on Vanderwist's motion for summary judgment and upon
Vanderwist's motion, the Cuyahoga County Court of Common Pleas transferred the
case to the Geauga County Court of Common Pleas.
{¶9) After the case was transferred to Geauga County, Whelan filed an
amended complaint. Whelan's amended complaint raised three causes of action
against Vanderwist: (1) negligence pursuant to the doctrine of respondeat superior; (2)
negligence under a "business host" theory: and (3) a claim for negligent hiring,
supervision, and retention. In response, Vanderwist filed an amended answer and an amended motion for summary judgment. Whelan filed a brief in opposition to
Vanderwist's motion for summary judgment. Whelan attached several documents to its brief in opposition, including: (1) copies of Kinsey's employment records at Vanderwist showing his hours worked during 2004; (2) a copy of a reprimand issued by Vanderwist to Kinsey for violating the company's drug and alcohol policy; and (3) a copy of Kinsey's application for unemployment benefits. Thereafter, Vanderwist filed a reply brief to
Whelan's brief in opposition to Vanderwist's motion for summary judgment. Vanderwist attached several documents to this pleading, including: (1) Heis' affidavit; (2) an affidavit from Diane Baumgartner; (3) Kinsey's weekly time record for the week of December 20,
4 2004; and (4) a copy of the reprimand issued to Kinsey for violating Vanderwist's drug
and alcohol policy. In addition to the documents attached to the parties' pleadings, a
copy of Kinsey's deposition was filed in the record.
{110) The matter was referred to a magistrate. The magistrate issued her
decision in July 2006. She recommended that Vanderwist's motion for summary
judgment be granted. Whelan filed objections to the magistrate's decision pursuant to
Civ.R. 53. On August 28, 2006, the trial court overruled Whelan's objections and
granted Vanderwist's motion for summary judgment.
{¶11} In September 2006, Whelan filed a notice of appeal of the trial court's
August 28, 2006 judgment entry to this court. This matter was assigned case No. 2006-
G-2732. Vanderwist filed a motion to dismiss this prior appeal for lack of a final,
appealable order. In granting Vanderwist's motion to dismiss, this court held that the
trial court's judgment entry was not a final, appealable order, because the judgment
entry failed to dispose of the claims pending against Kinsey nor did the entry contain
language pursuant to Civ.R. 54(B). Whelan v. Vanderwisf of Cincinnati, 11th Dist. No.
2006-G-2732, 2006-Ohio-6690, at ¶16. Accordingly, this court dismissed the prior appeal. Id. at ¶20.
{112} On March 1, 2007, the trial court issued a judgment entry indicating that,
"pursuant to Civ.R. 54(B) there is no just reason for delay in granting Vanderwist's
Motion for Summary Judgment." Whelan has timely filed an appeal from the trial court's
March 1, 2007 judgment entry.
{¶13} Whelan raises the following assignment of error:
5 {$14} "The Trial Court erred in granting the Motion for Summary Judgment of
Defendant/Appeliee Vanderwist of Cincinnati, Inc."
{1ff15} Pursuant to Civ.R. 56(C), summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Dresher v. Butt (1996), 75 Ohio St.3d 280, 293. In addition, it must
appear from the evidence and stipulations that reasonable minds can come to only one
conclusion, which is adverse to the nonmoving party. Civ.R. 56(C). The standard of
review for the granting of a motion for summary judgment is de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105.
{iff16} "Since summary judgment denies the party his or her 'day in court' it is not
to be viewed lightly as docket control or as a 'little trial.' The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt, the Supreme Court of Ohio held that the moving party seeking
summary judgment bears the initial burden of informing the trial court of the basis for the
motion and identifying those portions of the record before the trial court that
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party's claim. The evidence must be in the record or the motion cannot
succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply
by making a conclusory assertion that the nonmoving party has no evidence to prove its
case but must be able to specifically point to some evidence of the type listed in Civ.R.
56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has
6 satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the
iast sentence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue
for trial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be
entered against the nonmoving party based on the principles that have been firmly
established in Ohio for quite some time in Misteff v. Wheeler (1988), 38 Ohio St.3d 112.
{¶17} "***
{q[18} "The Supreme Court in Dresher went on to hold that when neither the
moving nor nonmoving party provides evidentiary materials demonstrating that there are
no material facts in dispute, the moving party is not entitled to a judgment as a matter of
law as the moving party bears the initial responsibility of informing the trial court of the
basis for the motion, 'and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact on a material element of the nonmoving party's
claim.' [Dresher v. Burt, 75 Ohio St.3d at 276.]" Welch v. Ziccarelli, 11th Dist. No.
2006-L-229, 2007-Ohio-4374, at ¶40-42. (Emphasis in original.)
{519} Whelan argues that Vanderwist may be liable under a "business host"
theory. Vanderwist argues that Whelan has abandoned this argument by failing to raise
it on appeal. We note that Whelan contests the magistrate's finding that no business was conducted at the Christmas party by arguing that a woman from Yardmaster, a client of Vanderwist's, was at the party. However, Whelan provides no case law or legal argument in support of the "business host" theory of liability. Thus, Whelan has waived this argument. See, e.g., App.R. 12(A)(2). Therefore, we will only briefly address this argument.
7 {1[20} Whelan contends that Vanderwist was a "business host" due to the fact
that business was arguably conducted during the party. However, we are not aware of
a separate class of providers known as a "business host," and Whelan does not cite any
legal authority in support of this claim. Rather, providers of alcohol fall into two general
categories, "social hosts" and liquor permit providers. In Ohio, "a social provider of
alcohol to an intoxicated person, unlike a permit holder, is not liable to third persons
subsequently injured by the intoxicated person." State Farm Mut. Auto. Ins. Co. v. King,
12th Dist. Nos. CA2005-04-045 & CA2005-04-049, 2006-Ohio-336, at ¶31, citing
Settlemyer v. Wilmington Veterans Post No. 49 (1984), 11 Ohio St.3d 123, 127. There
is no evidence in the record to suggest that Vanderwist was anything other than a social
host. Vanderwist did not sell beer or engage in other behavior consistent with that of a
liquor permit holder. See R.C. 4301.22 and 4303.01, et seq. At the bowling alley, the
beer was purchased from the bowling alley for consumption by the Vanderwist
employees. Therefore, Vanderwist was not responsible for the actions of those drinking
the beer on a theory of direct negligence. Great Central Ins. Co. v. Tobias (1988), 37
Ohio St.3d 127, syllabus. Thereafter, beer was purchased from a store and given to the
Vanderwist employees. Likewise, on a theory of direct negligence, Vanderwist is not
responsible for individuals' actions resulting from the consumption of this beer. See,
e,g., State Farm Mut. Auto. Ins. Co. v. King, 2006-Ohio-336, at ¶31-32. The trial court did not err by entering summary judgment in favor of Vanderwist on this claim.
{121} Whelan claims Vanderwist was liable under the doctrine of respondeat superior. "'It is well-established that in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the
8 scope of employment."' Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, at
¶42. (Citations omitted.) The conduct of an employee falls within the scope of his
employment when (1) it is the kind of work he is employed to perform, (2) it does not
occur outside permitted time and space limitations, and (3) it is performed to benefit the
master. Akron v. Holland Oil Co., 102 Ohio St.3d 1228, 2004-Ohio-2834, at ¶12-15
(Pfiefer, J., dissenting) quoting The Restatement of the Law 2d, Agency (1957), Section
228. Whether an employee is acting within the scope of his employment is a question
of fact. Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 92, quoting
Posin v. A.B. C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 278-279.
{122} Whelan contends there is a genuine issue of material fact as to whether
Kinsey was acting in the course and scope of his employment by traveling to his home to change clothes to assist in snow removal. The following colloquy occurred during
Kinsey's deposition:
{123} "Q. There's an indication in the police report that you told the deputy that investigated the accident that you were going home to change clothes to go plow?
ff24} "A. Yes, that's what we told Mike, but we weren't coming back,
{125} "Q. Did Mike ask you to plow?
{126} "A. He did. I mean, I wasn't planning on driving back out there. Ted was laid off so he didn't want to do it.
{127} "Q. Let me ask you this, how was it left with Mike when you guys left the office? Did Mike say I'd like you guys to plow?
{128} "A. Yeah, I'm sure he wanted help, yes,
{129} "Q. But, I mean, did he specifically ask you?
9 {¶30} "A. I don't remember. I might have volunteered or I said, yeah, I might
come back.
{¶31} "***
{T32} "Q. And you weren't intending to come back from your home to do any
work for Vanderwist that day?
{133} "A. They thought I was, but I was misleading them. Me and Ted both
knew we weren't coming back, as well as Joe Kelly."
{¶34} On the day in question, Heis received a call that snow removal was
needed. Several employees, including Heis, actually removed snow on that day.
Further, Kinsey's statements in his deposition suggest that Heis asked for his
assistance in snow removal on December 22, 2004. Also, Kinsey stated he told Heis that he was going home to change his clothes and return to the Vanderwist garage to assist with snow removal.
{135} Vanderwist places significant weight on Kinsey's statement that he was heading home and did not intend to return to assist with snow removal. However, this statement is in direct conflict to what he told Heis he intended to do on December 22,
2004. Also, it is in conflict with the information he provided to the investigating officer at the scene of the accident. Accordingly, there Is a genuine issue of material fact as to whether Kinsey was working at the time of the accident or if he was merely heading home for the day.
{136} Vanderwist argues that Kinsey did not regularly assist with snow removal but worked in the office on accounts receivable. However, it is important to note that
Kinsey only worked at Vanderwist from April 2004 through December 2004, Therefore,
10 during the majority of Kinsey's employment, no employees of Vanderwist were engaged
in snow removal. Kinsey stated that Heis had previously shown him the snow removal
routes, in case Kinsey's assistance was needed in that regard. One reason Kinsey was
showed the snow removal routes was that "he was close to some of the jobs." In light of
the fact that snow removal was in the scope of employment for many Vanderwist
employees and there was evidence that Kinsey was asked to and/or volunteered to
assist in snow removal on December 22, 2004, the fact that Kinsey had not previously
assisted in snow removal is not determinative. Accordingly, there is a genuine issue of
material fact as to whether snow removal was the kind of work Kinsey was employed to
perform.
{137} The next question is whether the conduct occurred outside of the
permitted space and time restrictions. The accident occurred shortly after 1:00 p.m., which was during a business day. Thus, there was evidence that Kinsey's conduct occurred in the requisite time period. Vanderwist argues that Kinsey was a fixed site employee. However, there is evidence that Kinsey routinely left the Vandenvist garage to perform landscaping work at various locations. In addition, the snow plow routes were spread out, including some near Kinsey's home. Kinsey's actions were going home to change clothes to assist with snow removal. It is also important to note that
Vanderwist provided Kinsey with a cell phone, and employees were called by
Vanderwist to inform them of changes in their planned destinations. As such, there is a genuine issue of material fact as to whether the accident occurred within the geographical limits of Kinsey's employment.
11 {138} Finally, there is a genuine issue of material fact as to whether Kinsey's
actions benefited Vanderwist. If it is believed that Kinsey was going home to change
clothes to assist with snow removal, his actions certainly benefited Vanderwist, as
Vanderwist's clients would have their snow removed and Vanderwist would be paid for
the service.
{139} On the day in question, Kinsey clocked in upon arriving at the Vanderwist
garage. Kinsey stated that it was his common practice to clock in upon arriving at the
Vanderwist facility because "that's how [he] got paid. If [he] didn't punch in or out [he]
didn't get paid." The magistrate gave significant weight to Kinsey's statement that he
clocked in on December 22, 2004 to be a "smart guy" and to see if he could "sneak a
paid day off." Kinsey's statement about being a smart guy was made during his
deposition over one year after the incident. Kinsey's actions of clocking in on the day in
question suggest that he was "on the clock" on December 22, 2004, as this was his standard routine. Thus, his statement about being a smart guy created a factual question as to what Kinsey's intentions were on December 22, 2004,
{J[40} Moreover, even if a finder of fact were to conclude that Kinsey was not on the clock for the purposes of the activities associated with the Christmas party during the morning hours of December 22, 2004, this would not preclude a finding that Kinsey was on the clock at the time of the accident. There was a distinct time shortly before
1:00 p.m. on December 22, 2004, when the activities of the Vanderwist employees significantly changed. At that time, the group stopped drinking beer and playing cards, and took action to assist with snow removal. Thus, at a minimum, there is a genuine issue of material fact as to whether Kinsey was on the clock after he was asked by his
12 direct supervisor to assist with snow removal, agreed to help with the snow removal,
and, then, took action to facilitate the snow removal.
{¶41} The magistrate concluded in her findings of fact that Kinsey was not paid
for any work on December 22, 2004, The magistrate erred in making this conclusion as
a matter of law, as the evidence presented created a factual question on this issue.
When Kinsey was asked if he was paid for that day, he responded, "I don't know. Could
have been." Diane Baumgartner stated in her affidavit that Vanderwist paid Kinsey for
two hours of work on December 22, 2004. She stated that the payment was
"erroneously" made, but that Vanderwist did not attempt to recover the funds from
Kinsey. There is evidence in the record showing that Kinsey was paid for some work on
December 22, 2004. Presumptively, employees are only paid if they are working. As
such, Baumgartner's statement that the payment was erroneous created a factual
question for the jury.
{¶42} Whelan argues that the fact that Kinsey received a reprimand is indicative that he was working on December 22, 2004, On January 21, 2005, Kinsey signed a reprimand form from Vanderwist. This form was designated as a written warning to
Kinsey for violating Vanderwist's drug and alcohol policy. The portions of the policy that are quoted on the written warning prohibit employees from working under the influence of drugs or alcohol, or possessing drugs or alcohol on company property. The reprimand form does not indicate the factual predicate giving rise to the reprimand.
Baumgartner stated that this warning was for actions by Kinsey that occurred on
January 20, 2005. However, Kinsey was laid off by that time and was collecting unemployment benefits. Thus, a finder of fact could conclude the reprimand was
13 actually for the events of December 22, 2004, By his own admission, Kinsey possessed
alcohol on Vanderwist's property on December 22, 2004. However, the fact that
Vanderwist included the portion of the company's drug and alcohol policy that prohibits
employees from working while under the influence is significant. This is indicative that
Kinsey may have been working on December 22, 2004. That is, if Kinsey was only
being reprimanded for possessing alcohol on company property, why was the language
regarding working under the influence of alcohol included in the written warning?
{jf43} Vanderwist argues-that- Kinsey was driving his personal vehicle at the time
of the accident. This fact weighs in favor of a finding that Kinsey was not in the course
and scope of his employment. However, on a daily basis, many people use their
personal vehicles in the course and scope of their employment. The fact that Kinsey
was using his personal vehicle, standing alone, does not preclude a finding that he was
in the course and scope of his employment.
{144} Vanderwist cites the Fifth Appellate District's decision in Rhome v.
USCCS, Ltd. Partenship, 5th Dist. No. 2006CA00185, 2007-Ohio-2618 in support of its
position. In Rhome, the court held that an employee was not in the course and scope of
her employment at the time of an accident. Id. at ¶50. However, Rhome is
distinguishable from the case sub judice on several points. First, the accident in Rhome
occurred 70 miles beyond the employee's normal route. Id. at ¶48. In this matter,
Kinsey's accident occurred only a few miles from the Vanderwist garage and was directly on the route from the Vanderwist garage to Kinsey's home, where he stated he was headed to change clothes to assist Vanderwist with snow removal. Also, the Fifth
District noted that driving intoxicated is a criminal act and is not within the scope of the
14 employee's employment. Id. We do not believe, as a matter of law, that a criminal act
is per se outside of the scope of one's employment. If we were to adopt such a
position, every traffic accident where the employee is at fault (failure to yield, speeding,
red light violation) would be outside the scope of employment, since it would be a
"criminal" act.
{q(45} It is important to note that there is evidence in the record that Vanderwist
provided all of the alcohol that caused Kinsey's impairment and, then, asked him to
work despite his intoxicated condition. This is the main fact-that distinguishes-this case
from most cases (including State Farm Mut. Auto. Ins. Co. v. Wing, supra) that address
liability stemming from the office Christmas party or office golf outing. In this case, there
is evidence that after the employer knows the employee has had enough alcohol to
render the employee under the influence, the employer asks the employee to leave to
start a mission for the benefit of the employer. The factual implications of this scenario
cannot be resolved by summary judgment.
{146} For purposes of summary judgment, the evidence must be construed
"most strongly" in favor of the nonmoving party. Civ.R. 56(C). In this matter, there was evidence presented, which showed that (1) Kinsey "clocked in" on the morning of
December 22, 2004, (2) Kinsey received compensation for working on December 22,
2004, (3) Kinsey was directly asked by his immediate supervisor to help with snow removal, (4) Kinsey told his boss that he would, in fact, help with the snow removal, (5) immediately following the accident, Kinsey told the investigating officer that he was on his way home to change clothes to assist with snow removal, (6) the accident occurred during the business day at a time when other Vanderwist employees were working, and
15 (7) Kinsey may have been reprimanded for "attempting to work while impaired by "
alcohol." This evidence, when taken together and viewed most strongly in Whelan's
favor, creates a genuine issue of material fact as to whether Kinsey was acting in the
course and scope of his employment at the time of the accident. As such, the trial court
erred in ente(ng summary judgment on this claim.
{147} Whelan's third cause of action is a claim of negligent hiring, supervision,
and retentlon.
{1148} "The elements of a claim formegligent hiring, supervision, -and--retention
are (1) the existence of an employment relationship, (2) the employee's incompetence,
(3) the employer's knowledge of the employee's incompetence, (4) the employee's act
or omission causing the plaintiff's injuries, and (5) a causal link between the employer's
negligence in hiring, supervising, and retaining and the plaintiffs injuries." Lehrner v.
Safeco tns./Am. States fns, Co., 171 Ohio App.3d 570, 2007-Ohio-795, at ¶42, citing
Harmon v. GZK, Inc. (Feb. 8, 2002), 2d Dist. No. 18672, 2002 Ohio App. LEXIS 480, at
*41-42. See, also, Steppe v. Kmart Stores (1999), 136 Ohio App.3d 454, 465.
(Citations omitted.)
{149} In addition to these elements, the plaintiff must initially demonstrate that
the employee was acting in the course and scope of his employment at the time of the
act. State Farm Mut. Auto. Ins. Co. v. King, 12th Dist. Nos. CA2005-04-045 & CA2005-
04-049, 2006-Ohio-336, at ¶42, quoting Saleh v. Marc Glassman, Inc., 8th Dist. No.
86010, 2005-Ohio-6127, at ¶28. (Secondary citations omitted.) In our analysis of
Whelan's respondeat superior argument, we concluded that there is a genuine issue of material fact as to whether Kinsey was acting in the course and scope of his
16 employment at the time of the accident. Thus, we will address whether there is a
genuine issue of material fact as to the other elements of Whelan's claim for negligent
hiring, retention, and supervision.
{¶50} Regarding the first element, the evidence suggests there was an
employment relationship between Vanderwist and Kinsey on December 22, 2004. Heis
stated that Kinsey was employed as an hourly employee on December 22, 2004.
{151} Pertaining to the second factor, there was evidence supporting the
conclusion that Kinsey was incompetent. Kinsey-admitted consuming four to six.beers
on the morning of December 22, 2004. Then, while operating his vehicle, he traveled
left-of-center, striking an oncoming vehicle.
{152} As to the third element, there was evidence presented that Heis was
aware of Kinsey's incompetence. We note that knowledge may be actual or
constructive. Steppe v. Kmart Stores, 136 Ohio App.3d at 465. (Citations omitted.)
Heis was present while several employees, including Kinsey, consumed beer. Further,
the evidence demonstrated that Heis was present during the entire time Kinsey was
consuming beer on December 22, 2004. There was no evidence presented that Kinsey
consumed any beer before or after the Vanderwist sponsored events.
{y(531 In regard to the fourth element, there was evidence submitted that shows
Kinsey's act of operating a vehicle under the influence of alcohol and traveling left-of- center caused Edward Whelan's injuries. Edward Whelan died as a result of the accident.
(154} Next, we will address whether there was evidence presented regarding a causal link between the actions of Vanderwist in its hiring, supervision, and retention of
17 Kinsey and Whelan's injuries. There was evidence that Vanderwist was aware that
Kinsey had a prior conviction for driving under the influence of alcohol. Kinsey stated
that his license was suspended at the time he was hired. Vanderwist provided a driver
for Kinsey during that time. In addition, Kinsey stated that Heis helped him get his
license reinstated, On the day in question, both Kinsey and Heis stated that Heis, on
behalfi of Vanderwist, purchased at least two pitchers of beer at the bowling alley.
There is a dispute as to who purchased the beer that was consumed at the Vanderwist
garage. Kinsey stated that Heis purchased two 12=packs of beer from a store-called the-
Hitching Post on the way back from the bowling alley. Heis stated that Kinsey and Kelly
brought the beer with them. Based on these facts, when taken together and viewed in a
light most favorable to Whelan, it could be concluded that Vanderwist was negligent in
its hiring, supervision, and retention of Kinsey, in that: (1) it was aware that Kinsey had
a prior conviction for driving under the influence; (2) it provided beer to Kinsey and approved of his consumption of such beer during the work-related Christmas party sponsored by Vanderwist; and (3) it requested Kinsey assist with snow removal, knowing that Kinsey needed to travel home to accomplish this task.
{155} There are genuine issues of material fact pertaining to Whelan's claim of negligent hiring, supervision, and retention. Therefore, the trial court erred in entering summary judgment on this claim.
{156} Whelan's assignment of error has merit to the extent indicated.
{$57} The judgment of the trial court is affirmed regarding the trial court's entry of summary judgment pertaining to "business host" liability. The judgment of the trial court is reversed as it pertains to Whelan's claims for negligence under the doctrine of
18 respondent superior and negligent hiring, supervision, and retention, This mafter is remanded to the trial court for further proceedings consistent with this opinion.
MARY JANE TRAPP, J., concurs,
COLLEEN MARY O'TOOLE, J., concurs in judgment only.
19