[Cite as Givens v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-819.]




JEROME GIVENS                                          Case No. 2016-00324

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Sophia Chang
       v.
                                                       ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF                                     MOTION FOR SUMMARY JUDGMENT
REHABILITATION AND CORRECTION

       Defendant



        {¶1} On September 8, 2016, defendant filed a motion for summary judgment.
Plaintiff did not file a response. The motion for summary judgment is now before the
court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can 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 or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
        {¶4} At all relevant times, plaintiff was an inmate in the custody and control of
defendant at Lake Erie Correctional Institution (LECI). Plaintiff claims that the dental
Case No. 2016-00324                         -2-                                    ENTRY


staff at LECI was negligent and broke his tooth while performing dental work on him. In
its motion for summary judgment, defendant argues that LECI is privately owned and
operated, and that its dental providers are employees of Correction Corporation of
America (CCA), which is an independent contractor of defendant. Defendant further
states that because CCA is not a state entity or agency, the court does not have
jurisdiction over the claim.
       {¶5} An employer is generally not liable for the negligent acts of an independent
contractor that it has hired. Pusey v. Bator, 94 Ohio St.3d 275, 278 (2002). “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.” Wright v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 14AP-153, citing Natl. Union Fire Ins. Co. v.
Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, ¶ 20.
       {¶6} “The Ohio Supreme Court has set out a test to distinguish an agency
relationship (sometimes also referred to as a master-servant relationship) from an
employer-independent contractor relationship: ‘Did the employer retain control of, or the
right to control, the mode and manner of doing the work contracted for? If he did, the
relationship is that of principal and agent or master and servant. If he did not but is
interested merely in the ultimate result to be accomplished, the relationship is that
of employer and independent contractor.’” Title First Agency, Inc. v. Xpress Closing
Serv., Inc., 10th Dist. Franklin No. 03AP-179, 2004-Ohio-242, ¶ 11, quoting Councell v.
Douglas, 163 Ohio St. 292 (1955), paragraph one of the syllabus.
       {¶7} “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
Case No. 2016-00324                            -3-                                    ENTRY


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.” Wright v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-153,
2014-0hio-4359, ¶ 10.
          {¶8} In support of its motion, defendant provides the affidavit of Trevor Clark, who
states:
          {¶9} “1. I have been employed by [defendant] as Assistant Chief Counsel since
October 5, 2015.       Before that, I was Staff Counsel since August 1, 2007.          I have
personal knowledge of the matters hereinafter referred to, and make this affidavit in
support of Defendant’s Motion for Summary Judgment.
          {¶10} “2. All of the providers in the dental division of [LECI] are employees or
agents of [CCA]. In fact, everyone that works at [LECI] is an employee or agent of
CCA.
          {¶11} “3. CCA, independent from [defendant] and the state of Ohio, owns and
operates [LECI] pursuant to a contract with [defendant].
          {¶12} “4. CCA owns the premise of [LECI] and is responsible for procuring the
equipment and supplies necessary to operate it.
          {¶13} “5. While CCA operates and maintains [LECI] in accordance with
contractual and statutory criteria, it does so independently.
          {¶14} “6. [Defendant] is not involved in CCA’s decision making and does not
control the details of the work.
          {¶15} “7. [Defendant’s] employees are not involved in the institution’s daily
operations nor does [defendant] play any part in hiring, paying, or supervising CCA’s
employees.
Case No. 2016-00324                         -4-                                    ENTRY


        {¶16} “8. CCA controls the hours worked and amount paid to each of its
employees.”
        {¶17} Plaintiff did not submit any evidence to refute the statements contained in
the affidavit supporting defendant’s motion. Civ.R. 56(E) provides: “When a motion for
summary judgment is made and supported as provided in this rule, an adverse party
may not rest upon mere allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.      If the party does not so respond,
summary judgment, if appropriate, shall be entered against the party.”
        {¶18} Based on the undisputed testimony and viewing this matter in light most
favorable to plaintiff, the court finds that there is no issue of material fact surrounding
the relationship between CCA and defendant, and that the relationship is one of an
independent contractor rather than an agency relationship. Therefore, because LECI is
owned, operated, and maintained by CCA, defendant is not liable for the alleged
negligent acts of CCA’s staff.
        {¶19} Accordingly, defendant’s motion for summary judgment is hereby
GRANTED and judgment is rendered in favor of defendant. All previously scheduled
events are VACATED. Court costs are assessed against plaintiff. The clerk shall serve
upon all parties notice of this judgment and its date of entry upon the journal.




                                                  PATRICK M. MCGRATH
                                                  Judge
cc:
Jerome Givens                                 Jeanna V. Jacobus
487 Sunshine Avenue                           Assistant Attorney General
Youngstown, Ohio 44505                        150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130
Filed January 5, 2017
Sent to S.C. Reporter 3/7/17
