MALIEKA EVANS v. AKRON GENERAL MEDICAL CENTER, et al.
C.A. No. 28340
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 1, 2018
[Cite as Evans v. Akron Gen. Med. Ctr., 2018-Ohio-3031.]
SCHAFER, Judge.
STATE OF OHIO, COUNTY OF SUMMIT. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2014-11-5041
Dated: August 1, 2018
SCHAFER, Judge.
{¶1} Plaintiff-Appellant, Malieka Evans, appeals the judgment of the Summit County Court of Common Pleas granting in part the summary judgment motion of Defendant-Appellee, Akron General Medical Center (“AGMC“) and granting the summary judgment motion of Defendant-Appellee, General Emergency Medical Specialists, Inc. (“GEMS“).
I.
{¶2} On November 9, 2014, Evans filed a complaint against AGMC and several “Doe” defendants, whose identities were then unknown. The complaint alleged, inter alia, claims for negligent hiring and negligent supervision and/or retention. On January 7, 2015, Evans filed an amended complaint that substituted GEMS for one of the previously unnamed defendants. A summons and copy of the amended complaint was personally served upon the statutory agent for GEMS on April 7, 2015.
{¶4} GEMS filed its first motion for summary judgment on December 22, 2015, and a second motion for summary judgment on January 25, 2015. The trial court granted GEMS’ second motion for summary judgment on May 12, 2016.
{¶5} AGMC filed its motion for summary judgment on February 17, 2016. The trial court granted AGMC‘s motion on July 21, 2016.
{¶6} Evans filed this timely appeal, raising two assignments of error for our review. To facilitate review, we elect to consider the assignments of error out of order.
II.
Assignment of Error II
The trial court erred in finding that service of process on Defendant, General Emergency Medical Specialists, Inc. (“GEMS“), was insufficient where it was personally served with the Amended Complaint in a timely manner, failed to affirmatively allege insufficiency of service of process in its Answer, and fully participated in the litigation.
{¶7} In her second assignment of error, Evans contends that the trial court erred by granting GEMS’ motion for summary judgment on the basis that Evan‘s amended complaint naming GEMS in place of a previously identified by a fictitious name did not relate back to the original complaint.
{¶8} Under
- [no] genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party‘s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the moving party satisfies this burden, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293. A review of a trial court‘s grant of summary judgment is considered de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Accordingly, we apply the same standard as the trial court, viewing the facts in the light most favorable to the non-moving party and resolving any doubt in the favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983); Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).
{¶9} In her complaint, Evans alleges that she was sexually assaulted by an employee of GEMS on November 9, 2012, and that as a result of GEMS’ negligence she suffered psychological, emotional, and physical injuries, and emotional distress. It is undisputed in this case that the statute of limitations for a claim of negligent hiring and negligent supervision/retention is two years. See
When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words “name unknown,” and a copy thereof must be served personally upon the defendant.
“Assuming that a plaintiff meets the specific requirements of
{¶11} A review of the record shows that Evans’ original complaint did list several “Doe defendants” and stated that their identities “cannot presently be determined.” Evans subsequently amended her complaint, stating in part, “Defendant, DOE No. 1, as referenced in the original Complaint, is now known by Plaintiff to be Defendant [GEMS] * * * .” A summons and copy of the amended complaint was personally served upon the statutory agent for GEMS on April 7, 2015. However, a review of the record shows that a copy of the original complaint together with a summons containing the words “name unknown” was not served upon GEMS.
{¶12} On May 20, 2015, GEMS filed a motion to dismiss arguing, in part, that Evans had failed to comply with the requirement of
{¶13} GEMS filed its second motion for summary judgment on January 25, 2016, on the basis that Evans had failed to comply with the two-year statute of limitations for negligent hiring and negligent supervision/retention. GEMS noted that although Evans had commenced her suit within the statute of limitations, the amended complaint naming GEMS as a defendant did not relate back to the original complaint because Evans had failed to comply with
{¶14} On appeal, Evans argues that the trial court‘s technical interpretation of
{¶15} It is undisputed that the original complaint and summons were never served upon GEMS. However, “’
{¶16} Accordingly, we conclude that GEMS met its initial Dresher burden by demonstrating the absence of any genuine issues of material fact concerning the application of the applicable statute of limitations since the service of Evans’ amended complaint did not relate back to the filing of her original complaint where she did not comply with the specific requirements of
{¶17} As GEMS satisfied its initial burden, the burden then shifts to Evans, as the non-moving party, to provide specific facts which would demonstrate the existence of a “genuine triable issue” with regard to the statute of limitations. See Dresher at 293. On appeal and in her response to GEMS’ second motion for summary judgment, Evans argues that GEMS waived its insufficiency of process defense because it was not properly raised nor properly preserved. Evans does not dispute that GEMS raised the issue of insufficiency of process in its motion to dismiss filed prior to its answer or that she failed to comply with
{¶18} Generally, a challenge to a trial court‘s personal jurisdiction over a defendant must be raised either in its answer or by motion filed prior to its answer. Suiter v. Karimian, 9th Dist. Summit No. 27496, 2015-Ohio-3330, ¶ 13. “A defense of lack of jurisdiction over the person * * * or insufficiency of service of process is waived (a) if omitted from a motion in the circumstance described in [Civ.R. 12](G), or (b) if it is neither made by motion under [Civ.R. 12] nor included in a responsive pleading * * * .”
{¶19} On appeal, Evans argues that the present case is distinguishable from Gliozzo because GEMS did not properly raise nor properly preserve the affirmative defense of
{¶20} A review of the record shows that Evans’ original complaint was filed on November 9, 2014. Accordingly, pursuant to
A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in subdivision (G), or (b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(A) to be made as a matter of course.
“Thus, the defense of insufficiency of service of process is waived if a motion is made raising other
{¶22} Therefore, Evans’ second assignment of error is overruled.
Assignment of Error I
In a case of negligent hiring, supervision or retention, the trial court erred in granting summary judgment for employer entities on grounds that (i) the plaintiff-victim of sexual battery did not file a civil case against the employee-perpetrator of assault within the one-year statute of limitations for civil assault and battery; and (ii) the employee-perpetrator will not be criminally convicted for the assault.
{¶23} In her first assignment of error, Evans contends that the trial court erred by granting summary judgment to AGMC and GEMS. We agree.
{¶25} In its subsequent motion for summary judgment and in its merit brief, AGMC argues that Evans failed to demonstrate all of the elements to support a cause of action based on negligent hiring, supervision, or retention because: (1) AGMC did not employ the doctor who allegedly assaulted Evans; and (2) Evans had not brought suit against the doctor, and no court had found the doctor liable civilly or criminally.
{¶26} Under
- [no] genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple, 50 Ohio St.2d at 327. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party‘s case. Dresher, 75 Ohio St.3d at 292. If the moving party satisfies this burden, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293. A review of a trial court‘s grant of summary judgment is considered de novo. Grafton, 77 Ohio St.3d at 105. Accordingly, we apply the same standard as the trial court, viewing the facts in the light most favorable to the non-moving party and resolving any doubt in the favor of the non-moving party. Viock, 13 Ohio App.3d at 12; Murphy, 65 Ohio St.3d at 358-359.
“To prove a claim of negligent hiring and retention, a plaintiff must show (1) [t]he existence of an employment relationship; (2) the employee‘s incompetence; (3) the employer‘s actual or constructive knowledge of such incompetence; (4) the employee‘s act or omission causing the plaintiff‘s injuries; and (5) the employer‘s negligence in hiring or retaining the employee as the proximate cause of plaintiff‘s injuries.”
A. Employment Relationship
{¶27} In in its motion for summary judgment and in its merit brief, AGMC argues that Evan‘s claims against AGMC fail as a matter of law because AGMC did not employ the doctor. In support, AGMC points to Evans’ amended complaint, wherein Evans does not allege that the doctor was employed by AGMC, but rather by GEMS and “assigned duties in the emergency room of [AGMC]“. In her response, Evans contends that “the fact that emergency care physician services were provided by GEMS instead of AGMC is not a basis for summary judgment, since those services were provided in the emergency room of [AGMC]” and under Ohio law, “a hospital is responsible for the service providers in its emergency room, irrespective of whether it retains such providers as its own employees or delegates emergency room services to an independent contractor.” See Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 444-445 (1993).
{¶28} Although “[l]iability under a theory of negligent hiring/retention (also known as negligent credentialing, selection, supervision, and/or training) is not vicarious liability“, “[w]ith respect to independent contractors, ‘an employer may be directly liable for injuries resulting from its own negligence in selecting or retaining an independent contractor.‘” Erickson v. Management & Training Corp., 11th Dist. Ashtabula No. 2012-A-0059, 2013-Ohio-3864, ¶ 35, citing Albain v. Flower Hosp., 50 Ohio St.3d 251, 257 and Browning v. Burt, 66 Ohio St.3d 544,
{¶29} Therefore, we conclude, as did the trial court, that in light of Evan‘s contention that the doctor was an independent contractor, AGMC‘s sole argument that the doctor was not its employee is not enough to show that there is no issue of material fact with regard to whether an employment relationship existed between AGMC and the doctor. See Dresher at 293. We note, however, that (1) this conclusion should not be understood on remand to be a determination that an employment relationship did exist between AGMC and the doctor; and (2) although an employment relationship may exist, an employer‘s duty to supervise an independent contractor is still dependent upon the specific facts and circumstances of each case. See Jackson at fn. 5.
B. Employee Liability for Plaintiff‘s Injuries
{¶30} Next, AGMC argues in its motion for summary judgment and merit brief that Evans “cannot establish liability against AGMC because she has not established liability against [the doctor who allegedly assaulted her]“. Specifically, AGMC contends that since the statute of limitations on any civil claim for assault and battery against the doctor has run and because no criminal charges have been brought against the doctor, “AGMC cannot be held vicariously liable for his actions.” (Emphasis added.)
{¶31} AGMC relies on a statement made by the Supreme Court in Strock v. Pressnell, 38 Ohio St.3d 207, 217 (1988), which states, “an underlying requirement in actions for negligent supervision and negligent training is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.” AGMC
{¶32} However, AGMC‘s argument incorrectly assumes that a claim for negligent hiring, retention, or supervision is based on a theory of vicarious liability. See Erickson, 2013-Ohio-3864 at ¶ 35, citing Albain, 50 Ohio St.3d at 257 and Browning, 66 Ohio St.3d at 557 (as noted above, claims for negligent hiring, retention, or supervision are not based on vicarious liability). “‘[T]he vicarious liability of an employer for torts committed by employees should not be confused with the liability an employer has for his own torts. An employer whose employee commits a tort may be liable in his own right for negligence in hiring or supervising the employee * * * [b]ut that is not vicarious liability.‘” Simpkins v. Grace Brethren Church of Del., 5th Dist. Delaware No. 13 CAE 10 0073, 2014-Ohio-3465, ¶ 49, quoting Kenneth S. Abraham, The Forms and Functions of Tort Law, 166, (2d Ed.2002). Indeed, with the exception of Strock all of the case law cited by AGMC in support of its argument examines claims of vicarious liability. See Krause v. Case W. Reserve Univ., 8th Dist. Cuyahoga No. 70712, 1996 Ohio App. LEXIS 5784 (Dec. 19, 1996) (respondeat superior); Radcliffe v. Mercy Hosp. Anderson, 1st Dist. Hamilton Nos. C-960424, C-960425, 1997 Ohio App. LEXIS 1997, 3-4 (May 14, 1997) (vicarious liability for the alleged negligent of the hospital‘s agents); Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, ¶ 1-2 (agency by estoppel for negligence of independent contractor).
{¶33} Initially, we note that AGMC cites to no authority interpreting the statement in Strock to mean that a party is required to show liability of the employee through either a civil or criminal action against the individual employee. Nonetheless, we believe AGMC has
{¶34} Therefore, after careful consideration, we conclude that the Supreme Court‘s statement in Strock merely stands for the proposition that a plaintiff must allege and prove a wrong recognized as a tort or crime in the state of Ohio within the statute of limitations for negligent hiring, supervision, and retention as determined by the legislature. Contra Bishop v. Miller, 3d Dist. Defiance Nos. 4-97-30, 4-97-31, 1998 Ohio App. LEXIS 1526 (Mar. 26, 1998) (holding that since a pastor could not be held liable for sexual battery due to the statute of limitations, the plaintiff could not maintain a cause of action against the church for negligent supervision).
{¶35} Therefore, we conclude that AGMC did not meet its initial Dresher burden to show that there were no issues of material fact as to whether the doctor who allegedly assaulted Evans was guilty of a claimed wrong against her.
{¶36} Finally, AGMC argues on appeal that Evans does not point to any evidence in her merit brief of AGMC‘s knowledge of any criminal propensities on the part of the doctor who allegedly assaulted her and “ignores the requirement of demonstrating an issue of fact on proximate cause in her appellate brief.” However, AGMC did not raise any of these arguments in its motion for summary judgment below. “Arguments that were not raised in the trial court cannot be raised for the first time on appeal.” JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12. Accordingly, AGMC‘s arguments concerning its knowledge and the issue of proximate cause are not properly before this court and we decline to address them.
{¶37} Therefore, Evans’ first assignment of error is sustained as it pertains to AGMC only.
III.
{¶38} Evans’ first assignment of error as it pertains to AGMC is sustained, however, it is not considered as to GEMS because it is moot. Evans’ second assignment of error is overruled. Therefore, the judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
CARR, J.
CONCURS.
CALLAHAN, J.
DISSENTING.
{¶39} In Strock v. Pressnell, 38 Ohio St.3d 207, 217 (1988), the Ohio Supreme Court wrote that in negligent supervision cases, “an underlying requirement * * * is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.” When given its plain meaning, this language is clear. Despite the development of the law of negligent hiring, supervision, and retention in the years since the Court decided Strock, the Court has neither clarified nor retreated from it. For these
{¶40} For more than twenty years, Ohio courts have articulated the elements of a claim for negligent hiring, supervision, and retention as follows:
“(1) the existence of an employment relationship; (2) the employee‘s incompetence; (3) the employer‘s actual or constructive knowledge of such incompetence; (4) the employee‘s act or omission causing the plaintiff‘s injuries; and (5) the employer‘s negligence in hiring or retaining the employee as the proximate cause of plaintiff‘s injuries.”
Evans v. Ohio State Univ., 112 Ohio App.3d 724, 739 (10th Dist.1996), quoting Ruta v. Breckenridge-Remy Co., 6th Dist. Erie No. E-80-39, 1980 Ohio App. LEXIS 12410, * 7. See also Zanni v. Stelzer, 174 Ohio App.3d 84, 2007-Ohio-6215, ¶ 8 (9th Dist.). The Ohio Supreme Court has never adopted this formulation. See, e.g., Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 69-70 (1982). Nonetheless, its otherwise wide acceptance provides a necessary starting point for analyzing negligent hiring, supervision, and retention claims.
{¶41} Viewed through this framework, Strock addresses a narrow issue: What conduct will be considered “the employee‘s incompetence” such that an employer will be held to a standard of reasonable care for hiring, supervising, or retaining any employee when harm results to another? Will any misconduct suffice? Must the allegation of misconduct fall within the definition of a tort or criminal statute? Or must the employee be actually liable for a tort or guilty of a criminal act for the element of “incompetence” to be established? In Strock, the Ohio Supreme Court chose the latter course.
{¶42} In Strock, at 210, the plaintiff sued a member of the clergy for professional malpractice, intentional infliction of emotional distress, breach of fiduciary duty, fraud, misrepresentation, and nondisclosure. Id. After determining that the claims against the tortfeasor were not
{¶43} The plain meaning of “liable” is to be “bound or obligated according to law or equity“; to be “guilty” is to be “justly chargeable with or responsible for a delinquency, crime, or sin.” Webster‘s Third New International Dictionary 1010, 1302 (1993). The use of these terms in Strock makes it clear that claims based on agency theory and negligent hiring, supervision and retention are both premised upon liability for some wrong by an employee against a third person. In other words, the plain meaning of these terms indicates that it is not sufficient to allege and prove a wrong in the context of a negligent hiring, supervision, or retention claim: liability must exist. In order to establish liability, there must first be a claim. Consequently, in this case, where no separate claim for wrongdoing was asserted against the doctor, where such a claim is now barred by the statute of limitations, and where all parties agree that no criminal action will be taken against the doctor, there can be no liability.
{¶44} I acknowledge that the Strock standard has been inconsistently applied and, in many cases, omitted from the relevant analysis. See, e.g., Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 493 (1991); Collins v. Flowers, 9th Dist. Lorain No. 04CA008594, 2005-Ohio-3797, ¶ 33 (“This Court has held that in order to establish a claim of negligent hiring, a plaintiff must demonstrate that the employer knew or should have known of the employee‘s criminal or tortious propensities.“). Nonetheless, the Ohio Supreme Court has referenced this language in
{¶45} I believe that unless and until the Ohio Supreme Court offers guidance regarding the plain language of the single sentence at issue in this case, this Court is bound to apply its plain meaning. Consequently, the trial court did not err in its application of Strock, and the decision of the trial court should be affirmed.
{¶46} I respectfully dissent.
APPEARANCES:
KONRAD KIRCHER and RYAL MCGRAW, Attorneys at Law, for Appellant.
STUART S. MERMELSTEIN, Attorney at Law, for Appellant.
ANNA MOORE CARULAS and TAMMI J. LEES, Attorneys at Law, for Appellee.
STEPHEN W. FUNK, Attorney at Law, for Appellee.
MARTIN T. GALVIN and STEPHAN C. KREMER, Attorneys at Law, for Appellee.