2022 Ohio 1908
Ohio Ct. App.2022Background
- Whalen was the sole member of Whalen Lawn & Landscaping, LLC (WLL); he performed business duties, occasional mowing, and minor equipment maintenance.
- Employee Christopher Gundel was injured on May 11, 2019 when his riding mower’s seat kill switch was disabled; the accident resulted in a below-the-knee amputation.
- Gundel received Bureau of Workers’ Compensation (BWC) benefits and sued Whalen (and others), alleging the kill switch was defective or intentionally disabled (negligence and intentional-tort theories).
- Insurers Pekin (for WLL) and Grange (for Whalen) sought declaratory judgments denying defense/indemnity, arguing statutory immunities applied (LLC-member immunity and workers’ compensation co-employee/employer immunities).
- The trial court granted summary judgment finding Whalen was Gundel’s employer and immune; on appeal the court rejected the employer finding (recognizing the LLC as a separate entity) but held Whalen was a fellow employee entitled to immunity under R.C. 4123.741 and that no genuine issue existed on an intentional-tort exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a sole-member of an Ohio LLC is personally liable for torts committed on the company’s behalf | Gundel: LLC members can be liable for their own tortious acts performed on company’s behalf | Pekin/Whalen: R.C. 1705.48(B) shields LLC members from personal liability for company obligations | Court: LLC is a separate entity and members generally shielded from vicarious liability, but member can be liable for personal torts; issue not dispositive here |
| Whether the sole-member is the employer for purposes of the workers’ compensation exclusive-remedy statute (R.C. 4123.74) | Gundel: Whalen, as sole member, was not the employer and thus not immune | Defs: Whalen functioned as employer and is protected by exclusive-remedy immunity | Court: Trial court erred to treat Whalen as the employer by disregarding WLL’s separate legal status |
| Whether Whalen was an "employee" of WLL and thus immune as a co-employee under R.C. 4123.741 | Gundel: Whalen was not an employee (no wages, no W-2, omitted from BWC listings; provided sweat equity) | Defs: Statutory definition in R.C. 4123.01 covers any person "in the service of" an employer; Whalen performed services for WLL | Held: Whalen met the statutory definition of employee and is entitled to co-employee immunity under R.C. 4123.741 |
| Whether the intentional-tort exception to co-employee immunity applies | Gundel: Kill switch was intentionally disabled or knowingly dangerous, satisfying intentional-tort exception | Defs: No evidence Whalen intended injury or that injury was substantially certain; Gundel knew the switch was disabled and could have taken safer steps | Held: No genuine issue of material fact that Whalen committed an intentional tort; intentional-tort exception not shown |
Key Cases Cited
- Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35 (de novo appellate review of summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s summary-judgment burden)
- Dresher v. Burt, 75 Ohio St.3d 280 (allocation of summary-judgment burdens)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civ.R.56 standard)
- Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115 (substantial-certainty standard for employer intentional tort)
- Head v. Reilly Painting & Contracting, Inc., 28 N.E.3d 126 (elements for co-employee intentional-tort liability)
- Cleveland Bar Assn. v. Pearlman, 106 Ohio St.3d 136 (LLC is a separate legal entity)