[Cite as Evans v. Atty. Gen., 2020-Ohio-3471.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


William H. Evans, Jr.,                           :

                 Plaintiff-Appellant,            :                No. 20AP-53
                                                         (Ct. of Cl. No. 2019-00505JD)
v.                                               :
                                                         (REGULAR CALENDAR)
Ohio Attorney General et al.,                    :

                 Defendants-Appellees.           :




                                         D E C I S I O N

                                      Rendered on June 25, 2020


                 On brief: William H. Evans, Jr., pro se.

                 On brief: Dave Yost, Attorney General, and Lauren D. Emery,
                 for appellee Ohio Department of Rehabilitation and
                 Correction.

                             APPEAL from the Court of Claims of Ohio

BROWN, J.
        {¶ 1} This is an appeal by plaintiff-appellant, William H. Evans, Jr., from an entry
of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee,
Ohio Department of Rehabilitation and Correction ("ODRC").
        {¶ 2} On April 15, 2019, appellant, an inmate at the Northeast Ohio Correctional
Center ("NEOCC"), filed a pro se complaint against ODRC and the Ohio Attorney General
("OAG") for declaratory judgment, injunction, and damages. In the complaint, appellant
alleged he received medical treatment while incarcerated at NEOCC, and that "the
underlying claim regards failures by N.E.O.C.C. Warden to properlly [sic] train staff and
ensure adequate medical care, that is to ensure that all prescribed medications are properlly
No. 20AP-53                                                                                    2

[sic] given to the inmate without avoidable delays, and consistently." (Compl. at ¶ 6.)
According to the complaint, an "evening pill-call" had been "delayed until later at night, due
to security, and refills are not timely refilled." (Compl. at ¶ 8.)
           {¶ 3} The complaint also included allegations regarding a 2018 pro se complaint
filed by appellant in the Mahoning County Court of Common Pleas against NEOCC, the
warden of NEOCC, CoreCivic America Corporation ("CoreCivic"), and Diamond Pharmacy
Services. Appellant alleged "[t]he Mahoning Common Pleas Court dismissed the action
against the N.E.O.C.C. Defendants but kept the Diamond Defendants." Appellant further
alleged that he "timely appealed," but "the 7th. District dismissed the action completely
counter to law, and * * * that said dismissal was also in violation of criminal law." (Compl.
at ¶ 6.)
           {¶ 4} Appellant sought to incorporate, as part of his complaint in the Court of
Claims, exhibits from the 2018 action, including the "Complaint filed in the Mahoning
Common Pleas Court as case no. 18CV-1446, a Supplemental Pleading * * *, a Declaration
by an inmate verifying the problems here at Plaintiff's facility," a "Brief filed by Plaintiff in
the 7th. District case no. 18MA-140," as well as "a response from the Mahoning Prosecutor
declining to prosecute." (Compl. at ¶ 3.)
           {¶ 5} On May 13, 2019, ODRC filed a motion to dismiss, arguing it was not liable
for the alleged torts of its independent contractor. On May 14, 2019, the OAG filed a motion
to dismiss, asserting the Court of Claims lacked jurisdiction over the claims involving the
OAG, and that appellant's complaint failed to state a claim for relief. On May 22, 2019,
appellant filed a memorandum contra the motions to dismiss filed by ODRC and OAG.
           {¶ 6} On August 2, 2019, the Court of Claims filed an entry of partial dismissal,
finding it lacked jurisdiction over appellant's criminal claims of conspiracy, theft, and
obstructing justice, and that appellant's complaint failed to state a claim against OAG. The
Court of Claims denied ODRC's motion to dismiss.
           {¶ 7} On September 3, 2019, ODRC filed a motion for summary judgment against
appellant asserting in part that the warden and staff at NEOCC are employees of CoreCivic,
a private corporation, and that ODRC was not liable for alleged torts of its independent
contractor. On September 11, 2019, appellant filed a memorandum in opposition to
summary judgment. On January 7, 2020, the Court of Claims filed a decision granting
No. 20AP-53                                                                                 3

ODRC's motion for summary judgment, finding there was no dispute CoreCivic was an
independent contractor and not an agent of ODRC.
       {¶ 8} On appeal, appellant, pro se, sets forth the following two assignments of error
for this court's review:
              Error One: Is ODRC liable for wrongful acts or omissions by it's
              private contractor where that contractor is performing a
              delegated duty of ODRC?

              Error Two: Was summary judgment authorized when the issue
              of principal/agent is a question of fact in dispute? Was it
              authorized when Ohio law mandates that the contractor
              adheres to all laws and rules of ODRC and Ohio, hence
              respondeat superior applies?

       {¶ 9} Appellant's assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant challenges the decision of the Court
of Claims granting summary judgment in favor of ODRC on the following grounds: (1) that
ODRC is liable for the acts or omissions of its "private contractor" where such contractor is
performing a "delegated duty" of ODRC, and (2) that issues of fact remain as to ODRC's
liability based upon principal-agent or respondeat superior theories.
       {¶ 10} Under Ohio law, the grant of summary judgment is proper if the moving party
demonstrates: "(1) no genuine issue of material fact exists, (2) the moving party is entitled
to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion
and that conclusion is adverse to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence most strongly construed in its favor."
Santagate v. Pennsylvania Higher Edn. Assistance Agency (PHEAA), 10th Dist. No. 19AP-
705, 2020-Ohio-3153, ¶ 11, citing Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations
Bd., 78 Ohio St.3d 181, 183 (1997). This court reviews summary judgment "under a de novo
standard." Santagate at ¶ 11.
       {¶ 11} In Wright v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-153, 2014-
Ohio-4359, this court discussed principles of agency and independent contractor law, as
well as the doctrine of respondeat superior, holding in part:
              One who causes work to be done is not liable, ordinarily, for
              injuries that result from carelessness in its performance by the
              employees of an independent contractor, to whom he has let
              the work, without reserving to himself any control over the
No. 20AP-53                                                                                4

                 execution of it. * * * More simply, an employer is generally not
                 liable for the negligent acts of an independent contractor that
                 it has hired. * * * However, an employer cannot likewise evade
                 liability if the negligent party is the employer's employee or
                 agent. Under the doctrine of respondeat superior, an employer
                 is vicariously liable for the negligence of its employees or
                 agents. * * *

                 The doctrine of respondeat superior depends on the existence
                 of control by a principal over an agent. * * * If an employer
                 retains control or the right to control the mode and manner of
                 doing the work contracted for, then the relationship is one of
                 principal and agent. * * * On the other hand, if the employer
                 merely dictates the ultimate result to be accomplished, then the
                 relationship is one of employer and independent contractor.

                 In determining whether an employer has the degree of control
                 necessary to establish agency, courts examine a variety of
                 factors, including: whether the employer or individual controls
                 the details of the work; whether the individual is performing in
                 the course of the employer's business rather than in an
                 ancillary capacity; whether the individual receives
                 compensation from the employer, and the method of that
                 compensation; whether the employer or individual controls the
                 hours worked; whether the employer or individual supplies the
                 tools and place of work; whether the individual offers his
                 services to the public at large or to one employer at a time; the
                 length of employment; whether the employer has the right to
                 terminate the individual at will; and whether the employer and
                 individual believe that they have created an employment
                 relationship.

Id. at ¶ 8-10.

        {¶ 12} In its motion for summary judgment on appellant's negligence action, ODRC
asserted that NEOCC was privately owned and operated by CoreCivic; further, that
CoreCivic was an independent contractor of ODRC and not its agent. In support, ODRC
attached to its motion the affidavit of its Assistant Director, Stuart Hudson, who averred in
part:
                 2. I have been employed with Defendant, the Ohio Department
                 of Rehabilitation and Correction ("DRC") since 1994. I
                 currently serve as the Assistant Director of DRC. As Assistant
                 Director, my job duties include: Direct operations of major
                 divisions to include: prisons, court and community services,
                 holistic services, personnel, labor relations, administration and
No. 20AP-53                                                                                                  5

                 training. Assist the Director in supervising all operations of the
                 Department through assigning duties and responsibilities to
                 various division and institutions. Define agency goals and
                 objectives, formulate policies, procedures and Administrative
                 Rules necessary for the efficient management and operation of
                 the Department. Act on behalf of the Director in her absence.

                 3. The Warden, the correctional officers, and medical staff at
                 the Northeast Ohio Correctional Center (NEOCC) are
                 employees or agents of CoreCivic.

                 4. CoreCivic, independent from DRC and the State of Ohio,
                 maintains and operates NEOCC pursuant to a contract with
                 DRC.

                 5. CoreCivic maintains the premises of NEOCC and is
                 responsible for procuring the equipment and supplies
                 necessary to operate it.

                 6. While CoreCivic operates and maintains NEOCC in
                 accordance with contractual and statutory criteria, it does so
                 independently.1

                 7. DRC is not involved in CoreCivic's decision-making and does
                 not control the details of the work.

                 8. DRC employees are not involved in the institution's daily
                 operations nor does DRC play any part in hiring, paying,
                 supervising, disciplining, or terminating CoreCivic's
                 employees.

                 9. CoreCivic controls the hours worked and amount paid to
                 each of its employees."

        {¶ 13} In its motion, ODRC also pointed to an exhibit attached to appellant's
complaint, i.e., a copy of appellant's 2018 pro se complaint filed in the Mahoning County
Court of Common Pleas in which he alleged that "NEOCC is a [privately] owned
correctional corporation," and that CoreCivic "is most accurately defined as a 'Contractor'
for ODRC, rather than an 'Agent.' " (May 23, 2018 Compl. at ¶ 3, 5.)



1 In general, "the independent contractor-employee issue is one that must be determined by the trier of fact."

Brown v. CDS Transp., Inc., 10th Dist. No. 10AP-46, 2010-Ohio-4606, ¶ 10. However, where "the evidence
is not in conflict or where the facts are not in dispute, the issue becomes a matter of law that may be decided
by the trial court." Id.
No. 20AP-53                                                                                6

       {¶ 14} In granting summary judgment in favor of ODRC, the Court of Claims noted
that appellant "did not submit evidence to rebut that submitted by [ODRC]." (Jan. 7, 2020
Decision at 5.) The court also noted "the attachments to plaintiff's complaint, which he
incorporated into his complaint, allege that CoreCivic is an independent contractor and not
an agent of [ODRC] and that Diamond Pharmacy Services is an independent contractor,
rather than an agent of CoreCivic." (Jan. 7, 2020 Decision at 5.) The Court of Claims thus
determined the "only evidence before the court is that CoreCivic controls the daily decision-
making and details of the work at NEOCC"; further, that ODRC "is not involved in hiring,
paying, supervising, disciplining, or terminating CoreCivic's employees," and that
"CoreCivic maintains the premises of NEOCC and controls the hours worked and amount
paid to its employees." (Jan. 7, 2020 Decision at 5-6.) The Court of Claims therefore
concluded "there is no dispute that CoreCivic is an independent contractor and not an agent
of [ODRC, and that ODRC] cannot be held liable for the negligence of its independent
contractors." (Jan. 7, 2020 Decision at 6.)
       {¶ 15} Based on this court's de novo review of the record, we agree with the Court of
Claims that the only evidence submitted on summary judgment regarding the relationship
between ODRC and CoreCivic, including evidence as to right to control the mode and
manner of performing the work, points to that of independent contractor status. Appellant
produced no countervailing materials that would create a genuine issue of material fact as
to the nature of CoreCivic's relationship with ODRC. In fact, as noted by the Court of
Claims, the attachments to appellant's complaint included a copy of his 2018 common pleas
complaint in which he alleged that CoreCivic "is an independent contractor and not an
agent of" ODRC. (Jan. 7, 2020 Decision at 5.) Accordingly, the record supports the Court
of Claims' determination that CoreCivic is an independent contractor and not an agent of
ODRC, and we therefore find no merit to appellant's contention that issues of fact remain
as to the liability of ORDC under theories of principal-agent or respondeat superior.
       {¶ 16} Apparently conceding that CoreCivic is an independent contractor of ODRC,
appellant asserts the Court of Claims erred in failing to find ODRC liable under the doctrine
of non-delegable duty for the alleged negligence of its independent contractor. Appellant,
however, failed to raise before the Court of Claims, either in his pleading or in his
memorandum in opposition to summary judgment, the claim that ODRC was liable on the
No. 20AP-53                                                                                  7

basis of a non-delegable duty. Under Ohio law, "[i]ssues raised for the first time on appeal
are deemed to have been waived or forfeited through failure to assert them before the trial
court." Premiere Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No. 18AP-736, 2019-
Ohio-4015, ¶ 7. See also Tucker v. Leadership Academy for Math & Science of Columbus,
10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20, quoting Henson v. Cleveland Steel
Container Corp., 11th Dist. No. 2008-P-0053, 2009-Ohio-180, ¶ 77 ("while this court's
standard of review on a motion for summary judgment is de novo, that standard 'does not
supersede [an appellate court's] settled practice of not addressing issues raised for the first
time on appeal' "). Having failed to raise the issue before the Court of Claims, appellant is
barred from raising this theory of liability for the first time on appeal. While we conclude
the issue was waived, we further note that appellant, while arguing on appeal that a non-
delegable duty arose by contract, failed to submit any evidence on summary judgment
regarding contractual provisions between ODRC and CoreCivic.
       {¶ 17} Finding no genuine issue of material fact as to CoreCivic's status as an
independent contractor, we conclude the Court of Claims did not err in granting summary
judgment in favor of ODRC. Based on the foregoing, appellant's two assignments of error
are overruled, and the judgment of Court of Claims of Ohio is hereby affirmed.
                                                                         Judgment affirmed.

                                KLATT and DORRIAN, JJ., concur.

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