Touhey v. Ed's Tree & Turf, L.L.C, 194 Ohio App. 3d 800

Touheys sued Ed’s Tree & Turf and Funk for negligence, vicarious liability, negligent hiring/supervision, and punitive damages after a 2007 accident involving Ed’s truck and a trailer driven by Funk.
The trial court granted Ed’s Tree & Turf’s motion for summary judgment and Funk’s motion for partial summary judgment on punitive damages, and the Touheys appealed.
A key dispute was Funk’s employment status with Ed’s Tree & Turf; conflicting evidence concerned who controlled the work, pay, hours, supervision, and use of tools.
Funk testified he worked at the shop, performed maintenance, and was paid 'underneath the table,' while Ross claimed Funk was not an employee but allowed to perform tasks and use tools.
Evidence showed Ross, Tim Taylor, and Bryan Ross could supervise Funk; Funk’s hours and duties were at least partly directed by Ed’s Tree & Turf personnel.
The court reversed on the employment-status issue, remanding for further proceedings; it also reversed Funk’s partial summary judgment on punitive damages and remanded for trial on that claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Funk an employee or independent contractor?	Funk was controlled by Ed’s Tree & Turf entities; payments and supervision indicate employee status.	Funk was not an Ed’s Tree & Turf employee; no formal payroll, withholding, or clear employer control.	Genuine issue of material fact; summary judgment improper; remanded.
Does evidence support punitive damages against Funk for conscious disregard?	Evidence shows Funk acted with conscious disregard given the dangerous situation and his driving despite concerns.	No conscious disregard; actions amounted to negligence, not the heightened mental state required.	Issue of punitive damages unresolved; remanded for trial.

Bost ic v. Connor, 37 Ohio St.3d 144 (1988) (employment status and control factors for worker classification)
Burgess v. Tackas, 125 Ohio App.3d 294 (1998) (summary judgment standard and de novo review)
Dresher v. Burt, 75 Ohio St.3d 280 (1996) (burden shifting on summary judgment; Civ.R. 56)
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978) (summary judgment standard; evidentiary burdens)
Mendoza v. Bishop, 2005-Ohio-238 (Ohio Ct. App.) (employee/independent contractor factors; control and integration)
Preston v. Murty, 32 Ohio St.3d 334 (1987) (actual malice and conscious disregard for safety for punitive damages)
Calmes v. Goodyear Tire & Rubber Co., 61 Ohio St.3d 470 (1991) (punitive damages require conscious disregard with near certainty of harm)
Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690 (1992) (actual malice requires near certainty of harm; mere possibility insufficient)