2020 Ohio 4282
Ohio Ct. App.2020Background
- In Nov. 2016, Dina Sitton received a massage from Alexander Miller at Massage Odyssey (Winton Rd.).
- During the session Miller inappropriately touched Sitton; she left and reported it; Miller was criminally convicted of sexual imposition.
- Sitton sued Miller, Massage Odyssey, owner Joyce Moorehead, and others for personal injury, respondeat superior, and negligent hiring/retention/supervision; default judgment and damages were entered against Miller.
- Massage Odyssey and Moorehead moved for summary judgment arguing Miller was an independent contractor, his acts were outside the scope of employment, and his criminal conduct was unforeseeable.
- The trial court granted summary judgment for Massage Odyssey and Moorehead; Sitton appealed two assignments of error (respondeat superior; negligent hiring/supervision/retention).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Massage Odyssey is vicariously liable under respondeat superior for Miller’s sexual assault | Sitton: Miller committed the tort while performing a massage for the business, so employer should be liable | Massage Odyssey: Miller’s sexual assault was intentional conduct outside the scope of employment (and he was an independent contractor) | Court: Sexual assault did not facilitate the business and fell outside scope of employment; no respondeat superior liability |
| Whether negligent hiring/retention/supervision claims survive based on Miller’s misrepresentation of licensure | Sitton: Miller misrepresented his massage license; that dishonesty made his criminal act foreseeable or put employer on notice | Massage Odyssey: No evidence of prior similar misconduct or criminal propensity; misstatement about licensing is insufficient to show foreseeability | Court: Plaintiff failed to show employer knew or should have known of any propensity for similar tortious/criminal conduct; negligent-hiring theory fails |
Key Cases Cited
- Comer v. Risko, 833 N.E.2d 712 (Ohio 2005) (respondeat superior requires control; no vicarious liability for independent contractors)
- Auer v. Paliath, 17 N.E.3d 561 (Ohio 2014) (tort must be within scope of employment for employer liability)
- Byrd v. Faber, 565 N.E.2d 584 (Ohio 1990) (no respondeat superior for pastor’s nonconsensual sexual conduct because outside scope)
- Linder v. American National Insurance Co., 798 N.E.2d 1190 (Ohio App.) (intentional torts fall outside scope unless they facilitate the employer’s business)
- Stephens v. A-Able Rents Co., 654 N.E.2d 1315 (Ohio App.) (distinguishing respondeat superior from negligent-hiring theories)
- Simpkins v. Grace Brethren Church of Delaware, 16 N.E.3d 687 (Ohio App.) (sexual assault is ordinarily outside scope of employment)
- Ruta v. Breckenridge–Remy Corp., 430 N.E.2d 935 (Ohio 1982) (elements of negligent hiring/retention claim)
- Steppe v. Kmart Stores, 737 N.E.2d 58 (Ohio App.) (absent known criminal propensity, criminal acts by employee are not reasonably foreseeable)