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State of Ohio Transportation Compendium of Law

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State of Ohio Transportation Compendium of Law STATE OF OHIO TRANSPORTATION COMPENDIUM OF LAW Bradley A. Wright Marshal M. Pitchford Roetzel & Andress, LPA 222 South Main Street Akron, OH 44308 Tel: (330)376‐2700 Email: [email protected] Email: [email protected] www.ralaw.com A. RECOVERY FOR RESPONDEAT SUPERIOR, NEGLIGENT ENTRUSTMENT, AND NEGLIGENT RETENTION, HIRING AND SUPERVISION In Ohio, courts recognize that there exist three separate and distinct theories of liability on which an employer may be held liable for the conduct of an employee. Stephens v. A-Able Rents Co. (8th Dist. 1995), 654 N.E.2d 1315, 1319. Such theories include respondeat superior, negligent entrustment, and negligent hiring. The same standard exists in Ohio for claims of negligent hiring as for negligent supervision and retention of an employee. See Snyder v. Guardian Automotive Products, Inc. (N.D. Ohio 2003), 288 F.Supp.2d 868. These standards as they apply to trucking cases in Ohio will be discussed in more detail below. 1. RESPONDEAT SUPERIOR An employer may be vicariously liable for the torts of its employees under the doctrine of respondeat superior. Comer v. Risko (Ohio 2005), 833 N.E.2d 712. This theory imposes liability on the employer for the acts done by an employee in the course and scope of employment. If the employee has no liability, the employer cannot be held liable under this theory as any liability of the employer is derivative to that of the employee. See Callen v. Int’l Bhd. of Teamsters, Local 100 (1st Dist. 2001), 761 N.E.2d 51. While this theory of recovery does apply in trucking cases, it has been expanded by law in the state of Ohio which places liability on a trucking carrier regardless of whether a negligent act was caused by the carrier’s actual employee. In Wyckoff Trucking v. Marsh Brothers Trucking Service, Inc., the Supreme Court of Ohio held that in tort causes of action involving leased vehicles of interstate motor carriers, primary liability shall be determined with regard to Federal Motor Carrier Safety Regulations (“FMCSA”) rather than common law doctrines of respondeat superior, master servant, independent contactor, and the like. Wyckoff (Ohio 1990), 569 N.E.2d 1049, at syllabus 1. The driver is viewed as a “statutory employee.” The relevant FMCSA regulations are contained in 49 CFR § 376.12 which states in Subsection (C): any lease shall provide that the authorized carrier/lessee shall have exclusive possession, control and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier/lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease. The Supreme Court has thus held that liability will attach to an interstate carrier/lessee if it is established that at the time the cause of action arose, (1) the lease of the vehicle was in effect and; (2) the vehicle displayed the carrier-lessee’s placard listing its FMCSA numbers. Wyckoff, supra, at syllabus 2. Should these facts exist, the FMCSA regulations creates an irrebuttable presumption of employment relationship between the carrier/lessee and the driver of the vehicle that displays the identification numbers of the carrier/lessee. Id. at syllabus 3. The irrebuttable presumption created by these regulations is referred to as the Doctrine of Statutory Employment. Id. at 265. Such liability attaches even if the driver embarks on an undertaking of his or her own by using the carrier/lessee’s FMCSA authority. Canal Insurance Co. v. Brogan (10th Dist. 1994), 639 N.E.2d 1219. It also applies whether or not the driver is the lessee’s employee. 2 Wyckoff, supra, at 1051. Once liability is fixed on the statutory employer, it is the statutory employer who must then seek subrogation from other potentially responsible parties. Id. at 1053. 2. NEGLIGENT ENTRUSTMENT Under a theory of negligent entrustment, the owner of a vehicle may be held liable for the injuries to a third person resulting from the operation of the vehicle by a person whom the owner knew or should have known was an inexperienced or incompetent driver. Huston v. Konieczny (Ohio 1990), 556 N.E.2d 505. To prove negligent entrustment, one must show that (1) the vehicle was entrusted to a person who is known or should have been known by the owner of the vehicle to be an incompetent driver; and, (2) that the negligent use of the vehicle, by that driver, caused the injury. Lee v. Sunnyside Honda (8th Dist. 1998), 716 N.E.2d 285. In Ohio, a plaintiff has full right to pursue both respondeat superior and negligent entrustment theories of recovery. Clark v. Stewart (Ohio 1933), 185 N.E. 71. In trucking cases, a plaintiff has been allowed to bring a claim for negligent entrustment along with claims for liability based on respondeat superior even when the owner/defendant admitted that the truck driver was acting within the scope of his employment and that the owner was liable for the driver’s negligence. Nichols v. Coast Distrib. Sys. (9th Dist. 1993), 621 N.E.2d 738. What constitutes entrustment of a vehicle can be complicated. For example, a claim against an owner of a tractor-trailer for negligent entrustment was allowed when an unauthorized, unlicensed driver, who was allowed to “ride along” on a trip, was improperly allowed to operate the vehicle and was negligently involved in an accident even though the owner did not authorize the unlicensed driver’s use. Lakes v. Minor (12th Dist.) 620 N.E.2d 1015. 3. NEGLIGENT HIRING, RETENTION, AND SUPERVISION Unlike vicarious liability under the theory of respondeat superior, an employer can be held independently liable under the theories of negligent hiring (Byrd v. Faber (Ohio 1991) 565 N.E.2d 584), negligent retention (Payton v. Receivables Outsourcing, Inc. (8th Dist. 2005) 840 N.E.2d 236), and negligent supervision (Lutz v. Chitwood (S.D. Ohio 2005) 337 B.R. 160). Under Ohio law, a party seeking to prevail on a claim for negligent hiring, supervision, or retention of an employee by an employer must show: (1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or omission causing plaintiff’s injuries; and, (5) the employer’s negligence in hiring, retaining, or supervising the employee as the proximate cause of the injuries. Snyder, supra. In order to prevail on such a claim, the plaintiff must prove the basic elements of negligence against the employer, i.e. duty, breach, proximate cause, and damages. Abrams v. Worthington (10th Dist. 2006), 861 N.E.2d 920. In general, an employer has a duty to prevent foreseeable injury to others by exercising reasonable care to avoid employing an incompetent employee. Id. An act is considered foreseeable if the employer knew or should have known of the employee's propensity to engage in similar criminal, tortious, or dangerous conduct. Id. This is a difficult burden to prove in most instances and the failure to provide strong evidence in support will likely lead to the dismissal of such claims. See Smith v. Spring Hill Integrated Logistics Management, Inc (N.D. Ohio 2005), 2005 WL 2469689. 3 B. PUNITIVE DAMAGES Under Ohio Revised Code § 2315.21 (C)(1), punitive damages are allowed when “[t]he actions or omissions of [a] defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.” In situations involving vicarious liability, such as those involving employer/employee relationships, punitive damages are not awarded against the principal unless the principal or master authorized, participated in, or ratified the actions or omissions of the agent or servant that demonstrate malice. Malone v. Courtyard of Marriott L.P. (Ohio 1996), 659 N.E.2d 1242. As to punitive damages, the employer’s ratification of an employee’s act is presumed if the act was performed within the scope of employment. On the other hand, ratification must be proven if the act was outside the scope of employment. Pursuant to R.C. 2315.21(B)(1), an employer is not liable for punitive damages unless the employer authorized, participated in, or ratified the actions of the employee. In general, an employer authorizes acts committed within the scope of employment, either expressly or impliedly. When an employee is acting within the scope of employment, the doctrine of respondeat superior applies, and the plaintiff need not prove ratification to hold the employer liable for punitive damages. But if an employee’s act is outside the scope of employment, the plaintiff must demonstrate that the employer ratified the willful and malicious conduct of the employee. Generally, the determination of whether an employee has acted within the scope of his employment is a question of fact to be decided by the jury. Siuda v. Howard, 1st Dist. Nos. C-000656, C-000687, 2002 WL 946188, 2002-Ohio-2292, at *12. Therefore, care must be taken to defend against punitive damages on the grounds that the act for which the punitive damages are sought was not committed within the scope of employment in order not to waive the requirement for proof of ratification. In Ohio, ratification has been found and punitive damages recovered for the acts of a trucking employee, even though performed outside of the scope of employment, when the employer was determined to have negligently hired or negligently retained the employee. Columbus Ry., Power & Light Co. v. Harrison (Ohio 1924), 143 N.E.
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