2018 Ohio 3031
Ohio Ct. App.2018Background
- On Nov. 9, 2014 Evans filed suit alleging negligent hiring/supervision/retention after an emergency-room doctor sexually assaulted her on Nov. 9, 2012 (two-year limitations period). The original complaint named AGMC and several Doe defendants.
- Evans filed an amended complaint on Jan. 7, 2015 substituting General Emergency Medical Specialists, Inc. (GEMS) for one Doe; GEMS was personally served with the amended complaint on Apr. 7, 2015.
- GEMS moved to dismiss (May 20, 2015) arguing failure to state a claim and defective service; the trial court denied that motion. GEMS later moved for summary judgment asserting the amended complaint did not relate back and was time-barred; the trial court granted that motion.
- AGMC moved for summary judgment (Feb. 17, 2016) and the trial court granted it; Evans appealed both rulings.
- The appellate court affirmed the grant of summary judgment to GEMS (holding Civ.R. 15(D) prerequisites were not satisfied so the amendment did not relate back) but reversed as to AGMC (finding genuine issues of material fact remained on negligent hiring/supervision claims) and remanded as to AGMC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amended complaint naming GEMS relates back so claims are timely | Evans: amended complaint relates back; GEMS was served and participated in litigation | GEMS: Civ.R.15(D)/Civ.R.3(A) requirements not met — original complaint/summons with "name unknown" was not served | Held: No relation back; Evans failed to satisfy Civ.R.15(D) (original summons not served and no "name unknown"); summary judgment for GEMS affirmed |
| Whether GEMS waived insufficiency-of-service defense by litigating after denial of motion to dismiss | Evans: denial of motion to dismiss required GEMS to reassert defense in its answer or waive it | GEMS: preserved the defense by timely raising it in motion to dismiss before answer to avoid waiver | Held: GEMS preserved the defense; Evans failed to show waiver |
| Whether AGMC is entitled to summary judgment because doctor was not AGMC employee | Evans: hospital can be liable for providers in its ER even if independent contractor; employment relationship issue is factual | AGMC: doctor was not AGMC employee so no duty/liability | Held: Genuine issue of material fact exists as to employment/contractual relationship and duty to supervise; summary judgment improper for AGMC |
| Whether plaintiff must show the individual employee is civilly or criminally liable before negligent hiring/supervision claim against employer can proceed (Strock issue) | Evans: employer liability is direct (not vicarious) and plaintiff need not have a separate, viable civil or criminal judgment against employee | AGMC: following Strock, employer claim requires that the employee be individually liable or guilty of a wrong | Held: Court rejects AGMC’s rigid reading of Strock; negligent hiring/supervision is direct liability and plaintiff need only allege/prove a recognized wrong within limitations period — material fact remains whether the doctor committed a wrong |
Key Cases Cited
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden-shifting for summary judgment)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- LaNeve v. Atlas Recycling, 119 Ohio St.3d 324 (relation-back and Civ.R.15(D) analysis)
- Strock v. Pressnell, 38 Ohio St.3d 207 (discussion of requirement concerning employee liability in negligent supervision claims)
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (insufficiency-of-process defense not waived by participation if properly preserved)
- Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435 (hospital responsibility for ER providers)
- Albain v. Flower Hosp., 50 Ohio St.3d 251 (employer liability for negligence in selecting/retaining independent contractors)