649 N.E.2d 316 | Ohio Ct. App. | 1994
Sonja Rae Hart, plaintiff-appellant, and her husband, Richard James Hart, sued Justarr Corporation ("Justarr") and one of its shareholders, Abe Fischer (collectively "defendants-appellees"). Justarr was the parent company that controlled an assisted-living facility, The Terrace at Westside ("Terrace"). Besides being a shareholder of Justarr, Fischer also was a director and officer of the corporation. The basis of the suit was sexual harassment allegedly suffered by Sonja Hart while she was employed as a nursing aide at Terrace. Hart claimed that another Justarr employee, Charles Sherman, committed sexual assault and battery against her. She claimed further that Justarr and Fischer created a hostile employment environment and failed to provide a safe workplace at Terrace. Finally she claimed that Justarr and Fischer committed sexual discrimination against her.
In response to appellees' motion, the trial court granted summary judgment for both Justarr and Fischer. That summary judgment is the subject of this appeal.1 Sonja Hart's three assignments of error raise two salient issues for review: (1) Was summary judgment in favor of Justarr proper; and (2) Was summary judgment for Abe Fischer proper?2 *676
A court may grant summary judgment against a nonmoving party when the evidence under Civ.R. 56(C) shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mitseff v. Wheeler
(1988),
Hart frames her assignments of error around summary judgment on her sexual-harassment claim under Kerans v. Porter Paint Co.
(1991),
In this case, the record transmitted for our review, including the depositions and affidavits, shows that Hart informed persons at Justarr of Sherman's alleged harassment. There also is evidence in the record that at least one of those persons was in the "chain of command" and had a direct line of communication to Fischer. Therefore, under Kerans, Hart presented evidence to show that Justarr, vis-a-vis Fischer, knew or should have known of Sherman's alleged misbehavior. Under Civ.R. 56(C), this evidence is sufficient to make summary judgment for Justarr improper. Therefore, those portions of the assignments of error that contest summary judgment for Justarr are sustained.
Next, appellant urges that the trial court erred by granting summary judgment for Fischer because he had such complete control over Justarr that he should be liable for Sherman's alleged harassment. As a general rule, a person is not liable for the wrongful acts of third parties. Littleton v. GoodSamaritan Hosp. Health Ctr. (1988),
Because of the context in which Hart challenges summary judgment for Fischer, this issue can be brought to a finer point by asking whether a director or officer of a corporation may be liable as an "employer" under the rule of Kerans.3 At least one Ohio court of appeals has held that a supervisor may be liable as an employer in a Kerans sexual-harassment case. See, generally, Seiber v. Wilder (Oct. 12, 1994), Greene App. No. 94 CA 32, unreported, 1994 WL 558969. For the reasons that follow, we agree.
In Kerans, the Ohio Supreme Court reasoned that an "employer has a duty to provide its employees with a safe work environment and, thus, may be independently liable for failing to take corrective action against an employee who poses a threat of harm to fellow employees." Kerans,
In cases cited in Kerans, other courts have imposed an individual duty on administrators — who were not the harassers and who were not the employers — to control the actions of persons under their supervision. For example, an employee of the Housing Authority of the city of Americus filed a sexual-harassment claim against the housing authority and against the chairman of its board of commissioners. Coleman v.Hous. Auth. of Americus (1989),
In this case, the evidence is uncontroverted that Fischer had unfettered power — other than his authority as a director and officer — to employ, retain, and dismiss Sherman. He stated that "I'm basically in charge, as far as major decisions," and "I don't think anybody was my right-hand man." Therefore, as inColeman, we cannot say, as a matter of law, that Fischer did not have a duty to control Sherman's alleged sexual harassment. Furthermore, because there is evidence in the record that he knew or had reason to know of the harassment, summary judgment in his favor was improper.
The order of the trial court granting summary judgment for Justarr and Fischer is reversed. This cause is remanded to the trial court for further proceedings consistent with law and the reasoning of this opinion.
Judgment reversedand cause remanded.
SHANNON and KLUSMEIER, JJ., concur.
"First Assignment of Error:
"The trial court erred in issuing summary judgment in favor of the defendants and against the plaintiffs because the facts adduced in the record of the case clearly show that the defendants had breached the duty owed to the plaintiffs as there were no efforts to determine the presence of the danger of sexual abuse to Sonja Rae Hart as part of the employment conditions which she was expected to endure.
"Second Assignment of Error:
"The trial court erred in issuing summary judgment in favor of the defendants and against the plaintiffs because there were prior incidents of sexual harassment by Charles Sherman. The record of this case strongly suggests that the defendant had notice of Charles Sherman's lascivious tendencies and harassment towards his female co-workers but failed to act appropriately.
"Third Assignment of Error:
"The court below erred in issuing summary judgment in favor of Abe Fischer and against the plaintiffs because Abe Fischer as president and sole executive officer of Justarr Corporation was an agent of the corporation and by his own admission in charge of all policies and major decisions."