2017 Ohio 7335
Ohio Ct. App.2017Background
- On July 30, 2013 Judith Boyland was struck from behind and knocked down in a busy Giant Eagle store by delivery driver Emmanuel Enofe, who was pushing an overloaded shopping cart of large advertisement boxes.
- Boyland sued Enofe, Prestige Delivery Systems, Inc. (Prestige), and Giant Eagle for negligence, alleging Enofe acted in the course and scope of employment and that Prestige/Giant Eagle negligently trained/supervised and permitted the hazardous deliveries.
- Prestige and Giant Eagle moved for summary judgment arguing Enofe was an independent contractor and that plaintiff failed to plead or prove vicarious liability or theories such as apparent agency; the trial court granted summary judgment for defendants.
- Boyland voluntarily dismissed Enofe, converting the interlocutory summary-judgment order into a final, appealable order; she appealed the dismissal of Prestige and Giant Eagle.
- The appellate court reviewed whether genuine issues of material fact existed as to (1) employee vs. independent contractor status, (2) apparent agency, (3) Giant Eagle’s nondelegable duty to invitees/premises-liability, and (4) whether the complaint gave fair notice of these theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint fairly pleaded theories (notice pleading) | Boyland argues complaint alleged operative facts (directions, control of deliveries, negligent supervision) sufficient to give fair notice of apparent agency and premises-liability theories | Defendants argue plaintiff did not plead imputation theories (apparent agency, agency by estoppel, premises-based liability) and trial court properly dismissed on that basis | Court: complaint, liberally construed, alleged operative facts giving fair notice of apparent agency and premises-liability claims; pleading sufficiency upheld |
| Whether Enofe was an employee or independent contractor (respondeat superior) | Boyland contends Prestige/Giant Eagle exercised control over deliveries and placement, supporting employee status | Defendants contend Enofe contracted as an independent contractor (route control, own vehicle/equipment, pay structure, contract language) | Court: dispute of material fact exists on control/right-to-direct; summary judgment inappropriate on employee/IC question |
| Apparent agency (whether principal held out Enofe as agent) | Boyland alleges defendants held Enofe out to the public and customers reasonably relied on his authority | Defendants argue no evidence supports a holding out or reliance supporting apparent agency | Court: reasonable minds could differ; depositions permit an inference of apparent agency; summary judgment improper |
| Nondelegable duty / premises liability to invitees (duty to warn/mitigate) | Boyland argues regular, large deliveries that obscured driver’s vision created a known/foreseeable hazard Giant Eagle had duty to address or warn about | Defendants argue no nondelegable duty or sufficient notice of hazardous condition to impute liability | Court: factual record shows recurring deliveries, visibility hazard, and Giant Eagle awareness; genuine factual issues preclude summary judgment |
Key Cases Cited
- Denham v. New Carlisle, 86 Ohio St.3d 594 (establishes effect of Civ.R. 41 dismissal on appealability)
- Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142 (interpretation of Civ.R. 41 post-Denham)
- Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621 (summary judgment standard)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (movant’s and nonmovant’s burdens on summary judgment)
- Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482 (inferences on summary judgment)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (caution in granting summary judgment)
- Turner v. Turner, 67 Ohio St.3d 337 (materiality and genuine issue concepts)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435 (respondeat superior v. independent contractor rule)
- Bobik v. Indus. Comm., 146 Ohio St. 187 (right-to-control test for employee v. independent contractor)
- Gillum v. Indus. Com., 141 Ohio St. 373 (control of means/manner vs. result)
- Bostic v. Connor, 37 Ohio St.3d 144 (factors for right-to-control analysis)
- Damon's Missouri Inc. v. Davis, 63 Ohio St.3d 605 (agency usually question of fact)
- Pusey v. Bator, 94 Ohio St.3d 275 (nondelegable duties doctrine)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (premises duty to invitees)
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (duty to warn invitees)
- LaCourse v. Fleitz, 28 Ohio St.3d 209 (owner’s superior knowledge required for liability)
- Worley v. Cleveland Pub. Power, 77 Ohio App.3d 51 (constructive notice requires hazard to exist long enough to be discovered)
- Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560 (employer not insulated from liability when independent contractor breaches duty)