[Cite as Thomas v. Reserves Network, 2011-Ohio-5857.]


STATE OF OHIO                   )                       IN THE COURT OF APPEALS
                                )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )

MONTY THOMAS                                            C.A. No.   10CA009886

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
THE RESERVES NETWORK, et al.                            COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellees                                       CASE No.   09CV163906

                                DECISION AND JOURNAL ENTRY

Dated: November 14, 2011



        WHITMORE, Judge.

        {¶1}    Plaintiff-Appellant, Monty Thomas, appeals from the judgment of the Lorain

County Court of Common Pleas, denying his motion for leave to amend his complaint and

granting summary judgment in favor of Defendant-Appellees, The Reserves Network, Inc.

(“Reserves Network”) and Victor McCown. This Court affirms.

                                                    I

        {¶2}    Reserves Network and I-Force, LLC (“I-Force”) are two temporary staffing

agencies that both provided Central Ohio Warehouse Co. (“Central Ohio”) with workers for its

warehouse. Specifically, Reserves Network provided Central Ohio with Victor McCown, and I-

Force provided Central Ohio with Monty Thomas. On October 4, 2007, Thomas was seriously

injured after McCown operated a tow motor and caused a steel rack loaded with tires to fall upon

Thomas. Thomas received workers’ compensation benefits as a result of his injuries.
                                               2


       {¶3}    On September 11, 2009, Thomas filed suit against McCown1 and all of the

agencies involved in this matter. As to McCown, Reserves Network, and Central Ohio, Thomas

stated a claim for negligence. As to Central Ohio and I-Force, Thomas stated claims for two

intentional torts, failure to comply with various statutory regulations, and punitive damages.

Reserves Network and McCown filed a motion for summary judgment together while both I-

Force and Central Ohio independently moved for summary judgment. Thomas filed a single

memorandum in opposition, responding to all of the foregoing motions.

       {¶4}    On July 9, 2010, after all the summary judgment motions were filed, Thomas

requested leave to file a second amended complaint. Specifically, Thomas sought to add an

additional count for negligent hiring, placement, and retention against Reserves Network and

Central Ohio. Reserves Network and Central Ohio both opposed the motion for leave to amend.

On August 13, 2010, the trial court denied Thomas’ motion for leave to amend his complaint and

granted summary judgment in favor of all of the defendants on all counts.

       {¶5}    Thomas now appeals from the trial court’s judgment and raises two assignments

of error for our review.

                                               II

                               Assignment of Error Number One

       “THE TRIAL COURT ERRED BY PROHIBITING PLAINTIFF-APPELLANT
       TO AMEND THE COMPLAINT TO CONFORM TO THE EVIDENCE
       PURSUANT TO CIVIL RULE 15[.]”




1
  Thomas initially named McCown as Victor “Doe” in his complaint. After conducting
discovery, Thomas sought to amend his complaint in order to properly name Victor McCown.
The court granted Thomas leave on April 14, 2010, and Thomas filed an amended complaint
naming McCown on April 19, 2010.
                                                3


       {¶6}    In his first assignment of error, Thomas argues that the trial court erred by

denying his motion for leave to file a second amended complaint. He argues that he should have

been permitted to add a claim of negligent hiring, placement, and retention against Reserves

Network and Central Ohio. We disagree.

       {¶7}    “The decision to grant or deny a motion to amend a complaint lies in the

discretion of the trial court and will not be reversed absent an abuse of discretion.” Wallner v.

Thorne, 9th Dist. No. 09CA0053-M, 2010-Ohio-2146, at ¶10. An abuse of discretion means that

the trial court was unreasonable, arbitrary, or unconscionable in its ruling.        Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶8}    Initially, we note that Thomas sought leave to amend his complaint pursuant to

Civ.R. 15(B). Civ.R. 15(B) governs the amendment of a complaint to conform to the evidence at

trial and has no application in a case where there has been no trial. Merrill Lynch Mtge. Lending,

Inc. v. 1867 West Market, L.L.C., 9th Dist. No. 23443, 2007-Ohio-2198, at ¶11. We next

consider whether Civ.R. 15(A) would have supported an amendment to a plaintiff’s complaint.

Id.

       {¶9}    Civ.R. 15(A) permits a party to amend a complaint with leave of court after one

amendment has already occurred. The rule provides that the leave “shall be freely given when

justice so requires.” Civ.R. 15(A).

       “[W]here it is possible that the plaintiff, by an amended complaint, may set forth a
       claim upon which relief can be granted, and it is tendered timely and in good faith
       and no reason is apparent or disclosed for denying leave, the denial of leave to file
       such amended complaint is an abuse of discretion.” Peterson v. Teodosio (1973),
       34 Ohio St.2d 161, 175.

Yet, “[a]n attempt to amend a complaint following the filing of a motion for summary judgment

raises the spectre of prejudice.” Brown v. FirstEnergy Corp., 9th Dist. No. 22123, 2005-Ohio-
                                                4


712, at ¶6.   “A plaintiff must move to amend under Civ.R. 15(A) in a timely manner.”

Cunningham v. Cunningham, 9th Dist. No. 01CA007938, 2002-Ohio-2647, at ¶16.

       {¶10} The record reflects that Thomas filed an amended complaint on April 19, 2010

after conducting McCown’s deposition at the end of March 2010. After having answered the

original complaint, all of the defendants then filed answers to the amended complaint.

Moreover, all of the defendants then filed motions for summary judgment on May 7, 2010; May

19, 2010; and May 28, 2010; respectively. The deadline that the trial court set for summary

judgment motions was May 28, 2010. Thomas did not seek leave to amend his complaint until

July 9, 2010; after the summary judgment deadline had passed and all of the summary judgment

motions had been filed.

       {¶11} Thomas based his request for leave to amend on evidence that he claimed he did

not discover “until the deposition of Victor McCown on March 23, 2010.” Thomas further

indicated in his motion for leave to amend that his counsel did not obtain a transcript of the

depositions in this case until May 12, 2010. His counsel, however, was present for both of the

depositions, which took place in March 2010. Thomas even filed his first amended complaint in

response to McCown’s deposition so as to properly designate McCown as a party-defendant by

name. Further, Thomas did not file his motion for leave until almost two months after he

claimed that his counsel obtained the transcript of the depositions. The motion for leave to

amend was filed well past the deadline that the court had set for summary judgment motions, and

both Reserves Network and Ohio Central actually filed summary judgment motions.               The

amendment would have necessitated a re-filing of those motions, if not an additional discovery

period, because both Reserves Network and Ohio Central conducted their discovery and filed

their respective motions on the basis of simple negligence, not negligent hiring or retention. See
                                               5


Zanni v. Stelzer, 9th Dist. No. 07CA009108, 2007-Ohio-6215, at ¶8 (setting forth specific

elements of negligent hiring and retention).

        {¶12} It was within the trial court’s discretion to conclude that Thomas’ motion for

leave to amend was untimely, and that Reserves Network and Ohio Central would be prejudiced

by allowing the amendment. See Brown at ¶6; Cunningham at ¶16-17. Based on our review of

the record, we cannot say that the court abused its discretion by refusing to grant Thomas leave

to amend. Thomas’ first assignment of error lacks merit.

                               Assignment of Error Number Two

        “THE TRIAL COURT ERRED BY GRANTING DEFENDANTS-APPELLEES’
        MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF
        MATERIAL FACT EXISTED[.]”

        {¶13} In his second assignment of error, Thomas argues that the trial court erred by

entering summary judgment in favor of Reserves Network and McCown with respect to his

claim for negligence against them. We disagree.

        {¶14} We first note that Thomas does not challenge the remainder of the trial court’s

summary judgment determinations. Thomas indicates in his brief that he only challenges the

court’s summary judgment award with respect to Reserves Network and McCown. As such, we

limit our analysis to a review of the award in favor of those two defendants, against whom

Thomas only asserted negligence.

        {¶15} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        “(1) 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
                                                6


       summary judgment is made, that conclusion is adverse to that party.” Temple v.
       Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

The party moving for summary judgment bears the initial burden of informing the trial court of

the basis for the motion and pointing to parts of the record that show the absence of a genuine

issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the

moving party must support the motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party bears the burden

of offering specific facts to show a genuine issue for trial. Id. at 293. The non-moving party

may not rest upon the mere allegations and denials in the pleadings but instead must point to or

submit some evidentiary material that demonstrates a genuine dispute over a material fact.

Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.

       {¶16} The Revised Code immunizes employers from common law suits initiated by

their employees for injuries arising out of the course and scope of their employment, provided

that the employers are in full compliance with their workers’ compensation premiums. R.C.

4123.74. Similarly, fellow employees of an injured employee also are immune from suit,

provided that the injury is one “found to be compensable under [the workers’ compensation

statutes].” R.C. 4123.741. “[R.C. 4123.74] is a codification of the principle set forth in Section

35, Article II of the Ohio Constitution that workers’ compensation benefits will be an

employee’s exclusive remedy against her employer for workplace injuries.”           Vacha v. N.

Ridgeville, 9th Dist. No. 10CA009750, 2011-Ohio-2446, at ¶5. The statutes form Ohio’s Fellow

Servant Immunity Doctrine. Nova v. State Farm Mut. Auto. Ins. Co., 9th Dist. No. 21885, 2004-

Ohio-3419, at ¶10, citing R.C. 4123.74 and R.C. 4123.741.

       {¶17} The Fellow Servant Immunity Doctrine applies to employers and employees, not

independent contractors. Marshall v. Aaron (1984), 15 Ohio St.3d 48, 49-50. In the context of
                                                7


temporary agencies who supply their customers with temporary workers, the Ohio Supreme

Court has recognized that a customer can be deemed an employer for purposes of fellow servant

immunity in certain instances. Daniels v. MacGregor Co. (1965), 2 Ohio St.2d 89, syllabus.

Immunity is dependent, however, upon the customer acting as the employer rather than the

temporary agency. Id. at 93-95. Accord Cheriki v. Black River Industries, Inc., 9th Dist. No.

07CA009230, 2008-Ohio-2602, at ¶17. The key inquiry in determining whether a customer is a

worker’s employer for purposes of fellow servant immunity is whether the customer has the right

to control the manner or means of the temporary worker’s performance. Vandriest v. Midlem

(1983), 6 Ohio St.3d 183, 184; Daniels, 2 Ohio St.2d at syllabus.

       {¶18} Reserves Network and McCown moved for summary judgment below on the

basis of fellow servant immunity. Specifically, they argued that: (1) both McCown and Thomas

were employees of Central Ohio, the customer of both Reserves Network and I-Force; (2)

because McCown and Thomas were fellow employees and Thomas received workers’

compensation after he was injured, McCown was immune from suit under R.C. 4123.741; and

(3) the failure of the claim against McCown also resulted in the failure of the claim against

Reserves Network, as the negligence claim against it only sounded in vicarious liability by way

of the doctrine of respondeat superior. Reserves Network and McCown primarily relied upon

the deposition testimony of McCown and Thomas in support of their motion for summary

judgment.

       {¶19} Thomas testified that I-Force arranged for his employment at Central Ohio. His

job there consisted of loading and unloading tires from truck trailers parked at the loading bays

in the warehouse.    An employee from I-Force took a small group of temporary workers,

including Thomas, to Central Ohio after he accepted the job. Once there, however, an employee
                                                8


of Central Ohio took Thomas around the warehouse and “explained everything” to him.

Specifically, Thomas testified that Central Ohio specifically instructed him how to load and

unload tires, complete with examples of how the work was to be performed. Thomas was

assigned to the area of the warehouse where trucks were ready to be loaded or unloaded and

reported to that area at the beginning of the day and after lunch. Central Ohio had scheduled

lunch breaks for Thomas and the other warehouse workers as well as fifteen-minute breaks

during the course of the day. Thomas testified that he used a punch card to sign in and out at the

beginning and end of the day at Central Ohio, as well as at lunch time. He also testified that only

half of the warehouse workers could take their lunch at a given time, so Central Ohio divided the

warehouse workers into two lunch groups. Thomas explained that Central Ohio trained him to

report back to the warehouse after lunch and begin either loading or unloading a truck with a

partner, depending on what trucks were there at the time.

       {¶20} As to the performance of his job duties, Thomas testified that Central Ohio

assigned him to work with a more experienced worker at first so that he could learn exactly how

to properly do his job. He explained that there was a specific method for loading and unloading

the tires. In unloading a truck, for instance, the tires had to be removed by row from top to

bottom with the aid of steel racks and a tow motor, operated by another worker. Thomas

indicated that he had a direct supervisor at Central Ohio who remained on the dock alongside the

warehouse workers during his shift. On the day Thomas received his injuries, Central Ohio’s

dock supervisor directed him to load the specific truck at issue because all of the other trucks

already had workers on them.

       {¶21} McCown testified that he agreed to work at Central Ohio the same day that he

contacted Reserves Network, seeking employment. According to McCown, he watched a safety
                                                 9


video at Reserves Network at the time he filled out his application, but did not receive any

training there. McCown did not recall ever seeing any Reserves Network employees at Central

Ohio. Rather, he testified that Central Ohio’s employees trained workers to operate a tow motor

if they lacked experience and placed a worker on a tow motor when, in Central Ohio’s

estimation, the worker was ready to operate it. Central Ohio assigned McCown to a specific tow

motor and he operated that particular tow motor each day. Much like Thomas, McCown testified

that he used a punch card at Central Ohio and had a scheduled lunch break each day. He further

testified that he had a direct supervisor at Central Ohio who would instruct him what to do each

day. On the day Thomas was injured, McCown’s job consisted of helping to load and unload

tires from truck trailers by using the tow motor to transfer the tires on steel racks to and from the

warehouse. McCown indicated that Central Ohio generally assigned him someone to work with

each day, but sometimes allowed him to choose the person with whom he wished to work.

       {¶22} We conclude, based on the foregoing, that McCown satisfied his initial Dresher

burden with respect to his argument that both Thomas and McCown were employees of Central

Ohio at the time Thomas was injured. The record reflects that Central Ohio trained each man to

perform their jobs, controlled the manner in which they performed those jobs, and assigned each

man to a particular job, area, and/or partner for their job each day. Thomas and McCown also

used all of Central Ohio’s equipment to perform their duties and reported to a supervisor at

Central Ohio.    Although both Thomas and McCown emanated from temporary agencies,

McCown set forth evidence demonstrating that it was Central Ohio that had the right to control

the manner and means of Thomas and McCown’s work performances on a daily basis. See

Cheriki at ¶18; Daniels, 2 Ohio St.2d at 90-91. Compare Marshall, 15 Ohio St.3d at 49-50

(concluding that reasonable minds could differ on the issue of control where alleged employer
                                               10


did not distribute equipment, did not discuss when or how work was to be performed, and did not

have a presence on a particular job site). Consequently, McCown also satisfied his Dresher

burden on the issue of his immunity, as his status as a fellow employee of Thomas would

immunize him from a negligence suit. See R.C. 4123.741.

       {¶23} Thomas first opposed Reserves Network and McCown’s motion for summary

judgment in this matter on the basis that they failed to assert fellow servant immunity as an

affirmative defense. See Civ.R. 8(C) (requiring that “injury by fellow servant” be pleaded as an

affirmative defense). In their answer, however, Reserves Network and McCown included as an

affirmative defense that Thomas’ complaint was barred because workers’ compensation benefits

“provide[d] [his] sole remedy[.]” It also incorporated by reference and adopted any affirmative

defenses raised by other parties to the suit. I-Force, in particular, pleaded the fact that Thomas

was barred from bringing suit by virtue of Section 35, Article II of the Ohio Constitution. See

Vacha at ¶5. Thomas did not respond, either in the court below or in his brief on appeal, to

Reserves Network and McCown’s argument that the foregoing assertions were sufficient for

purposes of having pleaded fellow servant immunity. See App.R. 16(A)(7). Consequently, we

reject his blanket assertion that Reserves Network and McCown did not properly raise the

defense of fellow servant immunity.

       {¶24} Thomas argues on appeal that McCown was not immune from suit because he and

McCown came from different temporary agencies. He claims that McCown is a third-party in

relation to him and that the Supreme Court’s opinion in Daniels cannot be extended to situations

where the temporary employees at issue come from two different temporary agencies. With

regard to McCown, however, Thomas’ argument misses the point because so long as both he and

McCown were employees of Central Ohio, the relationship between them was not that of third
                                                11


parties. They would both, as a matter of law, be employees of the same employer. The result

only would differ if one or both of them could not be deemed an employee of Central Ohio at the

time Thomas was injured.

        {¶25} In rebutting the assertion that he was an employee of Central Ohio, Thomas

argues in a single, unsupported sentence that I-Force retained a degree of control over his work

at Central Ohio. He fails to articulate what, if any, evidence substantiates his assertion. See

App.R. 16(A)(7). He also fails to address the impact of his own deposition testimony, in which

he indicated that Central Ohio conducted all of his training, work assignments, and daily activity.

Id. Absent any analysis to the contrary, we will not conclude that the trial court erred by holding

that Thomas was Central Ohio’s employee. Cardone v. Cardone (May 6, 1998), 9th Dist. No.

18349, at *8 (“If an argument exists that can support this assignment of error, it is not this

[C]ourt’s duty to root it out.”).

        {¶26} In rebutting the assertion that McCown was an employee of Central Ohio,

Thomas argues that Reserves Network had a mutual right to control McCown.                The only

evidence upon which he relies is a “Safety Partnership Letter” that Central Ohio and Reserves

Network signed. In the letter, the two companies agreed to have a mutual understanding on the

issue of safety and to work toward a safe work environment for all employees. The letter,

however, does not refer to McCown at all. Although McCown did testify that he watched a

safety training video at Reserves Network when he first applied there, he explained that all his

specific job training took place at Central Ohio. Nothing in the record supports the assertion that

Reserves Network performed any training at Central Ohio or had any presence there. McCown

testified that he did not recall ever seeing a Reserves Network representative at Central Ohio.

Indeed, throughout his motion for summary judgment, Thomas specifically accused Reserves
                                              12


Network of not appearing at Central Ohio to observe or oversee any of the conditions there. As

such, we disagree that the letter between Reserves Network and Central Ohio creates any

genuine issue of material fact with regard to McCown’s employment at Central Ohio. The

record supports the trial court’s conclusion that McCown was Central Ohio’s employee.

       {¶27} Because Thomas and McCown were fellow employees, McCown was immune

from suit by virtue of fellow servant immunity. R.C. 4123.741. The only remaining issue is the

potential liability of Reserves Network. As set forth above, Reserves Network argues that,

because McCown is immune from suit, the claim of vicarious liability against Reserves Network

through the doctrine of respondeat superior also must fail. See, e.g., Walk v. Ohio Supreme

Court, 10th Dist. No. 03AP-205, 2003-Ohio-5343, at ¶6 (“[I]f an employee has no liability, the

employer cannot be liable under the theory of respondeat superior because any liability of the

employer is derivative of the employee’s liability.”). That is only true, however, when a court

determines that an employee’s actions are not negligent. See Strock v. Pressnell (1988), 38 Ohio

St.3d 207, 217 (concluding that respondeat superior could not apply where employee was not

liable on the merits); Moncol v. Bd. of Ed. Of N. Royalton Sch. Dist. (1978), 55 Ohio St.2d 72,

syllabus (“[B]ased upon the doctrine of respondeat superior, as between the same parties, a

judgment in favor of the servant on the merits renders invalid any judgment against the

master.”); Pretty v. Mueller (1997), 132 Ohio App.3d 717, 723 (providing that an employer

“cannot be independently found liable under respondeat superior” if the accused employee “has

been found to have no liability”). The same rule does not apply to situations where an employee

is personally immune from liability. State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas,

126 Ohio St.3d 198, 2010-Ohio-3299, at ¶21-29 (“A private employer may still be liable even if

the employee is personally immune, for the doctrine of respondeat superior operates by imputing
                                               13


to the employer the acts of the tortfeasor, not the tortfeasor’s liability.”); Adams v. Peoples

(1985), 18 Ohio St.3d 140, 142-43. Because McCown was immune from suit irrespective of any

negligent conduct, Reserves Network was not entitled to summary judgment on the basis of

McCown’s immunity.

       {¶28} The trial court granted summary judgment in favor of Reserves Network on the

basis that it was an employer entitled to immunity under R.C. 4123.74. The trial court concluded

that Daniels, supra, immunized both Central Ohio and Reserves Network from liability because

both entities were McCown’s employer. This Court disagrees with the trial court’s interpretation

of Daniels. See Cheriki at ¶17 (“When a customer of a temporary agency retains the ability to

control the manner and means of the work performed by leased employees, it is the customer-

rather than the employment agency-that enjoys the benefit of the immunity conferred by R.C.

4123.74.”) (Emphasis added.); Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 194 (“A

review of prior case law establishes that one who exercises day-to-day control over the employee

will be considered as the employer for purposes of workers’ compensation.”) (Emphasis added.)

As previously noted, Central Ohio was acting as McCown’s employer, not Reserves Network.

The reason that Reserves Network was entitled to summary judgment, therefore, is not because it

had employer immunity, but because it was not acting as McCown’s employer.

       {¶29} The doctrine of respondeat superior subjects an employer or principal to liability

for the torts of an employee or agent. Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122

Ohio St.3d 594, 2009-Ohio-3601, at ¶20. Yet, the “doctrine of liability depends on the existence

of control by a principal (or master) over an agent (or servant)[.]” Id. “Generally, an employer

or principal is not vicariously liable for the negligence of an independent contractor over whom

it retained no right to control the mode and manner of doing the contracted for work.” Lovett v.
                                                14


Lorain Comm. Hosp., 9th Dist. No. 2004-Ohio-598, at ¶12, quoting Clark v. Risko, 5th Dist. No.

03CA14, 2003-Ohio-7272, at ¶12. Accord Clark v. Southview Hosp. & Family Health Ctr.

(1994), 68 Ohio St.3d 435, 438. Here, it was Central Ohio, not Reserves Network, who retained

control over the mode and manner of McCown’s work. Any negligence on his part could not be

imputed to Reserves Network by way of respondeat superior because Reserves Network was not

exerting control over McCown’s actions at the time Thomas was injured.              Lovett at ¶12.

Accordingly, the trial court did not err by entering summary judgment in favor of Reserves

Network. In re Estate of Baker, 9th Dist. No. 07CA009113, 2007-Ohio-6549, at ¶15 (“An

appellate court shall affirm a trial court’s judgment that is legally correct on other grounds, that

is, one that achieves the right result for the wrong reason, because such an error is not

prejudicial.”).

        {¶30} In sum, the trial court properly entered summary judgment in favor of McCown

and Reserves Network with regard to Thomas’ negligence claim against them. Thomas’ second

assignment of error is overruled.

                                                III

        {¶31} Thomas’ assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                15


       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. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



DICKINSON, J.
CONCURS

BELFANCE, P. J.
CONCURS, IN PART, AND DISSENTS, IN PART, SAYING:

       {¶32} I respectfully dissent from the majority’s resolution of the first assignment of

error and a portion of the second assignment of error.

       {¶33} With respect to Mr. Thomas’ first assignment of error, the trial court appears to

have concluded that Mr. Thomas could not possibly succeed on a negligent hiring claim against

Reserves Network based upon its mistaken conclusion that Reserves Network was immune. As

the trial court was mistaken on that point, and did not consider the merits of the request for leave

to amend under the liberal standard of Civ.R. 15(A), I would remand the matter for the trial

court’s further consideration.

       {¶34} Although the exact nature of the employment relationship between Reserves

Network and Mr. McCown is unclear, it is possible that Mr. Thomas could sustain a cause of
                                               16


action for negligent hiring against Reserves Network even if Mr. McCown is deemed an

independent contractor of Reserves Network. While it is generally true that “an employer or

principal is not vicariously liable for the negligence of an independent contractor over whom it

retained no right to control the mode and manner of doing the contracted for work[,]” (Internal

quotations and citations omitted.)      see Lovett v. Lorain Comm. Hosp., 9th Dist. No.

03CA008300, 2004-Ohio-598, at ¶12, there are exceptions to the general rule. See Albain v.

Flower Hosp. (1990), 50 Ohio St.3d 251, 257, overruled on other grounds.             One of the

exceptions is that “an employer may be directly liable for injuries resulting from its own

negligence in selecting or retaining an independent contractor.” Id. Thus, it is within the realm

of possibility that Mr. Thomas could state a claim against Reserves Network for negligent hiring.

Because the trial court thought that amendment of the complaint was futile, it did not consider

whether Mr. Thomas should be granted leave to amend his complaint to add a claim for

negligent hiring against Reserves Network in light of the liberal standard under Civ.R. 15(A).

Given the complex nature of the facts, the existence of multiple parties, and the legal issues

surrounding this case, in the exercise of its discretion, the trial court could have reasonably

allowed Mr. Thomas to amend his complaint. Attorneys do not typically have only one single

client and must manage multiple clients, court appearances, and trial schedules. Thus, they

should be given reasonable leeway to assess and analyze deposition testimony, research the law,

and consult with their clients prior to deciding whether to seek amendment of the complaint.

Here, the time-frame between the taking of the depositions and the request for leave to amend

was not so unreasonable or egregious that the trial court would have been acting unreasonably if

it had granted Mr. Thomas leave. The trial court’s journal entry contains no suggestion that it

would have denied the leave to amend because of delay. Accordingly, I would decline to decide
                                                17


this issue in the first instance. I would sustain Mr. Thomas’ first assignment of error, and

remand the matter to the trial court for consideration of Mr. Thomas’ request for leave to amend

his complaint.

       {¶35} With respect to the majority’s resolution of the second assignment of error

concerning Mr. Thomas’ claim against Reserves Network based upon the doctrine of respondeat

superior, I respectfully dissent as I would conclude that Reserves Network did not meet its initial

Dresher burden on this issue and did not establish its entitlement to judgment as a matter of law.

       {¶36} The majority correctly concludes that the workers’ compensation statute cannot

be employed to define the legal relationship of Mr. Thomas to Reserves Network. Nor can it be

employed to absolve Reserves Network of liability as Reserves Network is a third-party with

respect to Mr. Thomas.      Notably, Reserves Network did not even argue in its motion for

summary judgment that it was entitled to summary judgment based upon the application of the

doctrine of respondeat superior. Instead, it incorrectly argued that it was immune from suit

because Mr. McCown was immune under the worker’s compensation statute. The trial court

mistakenly agreed that Reserves Network was immune from suit because of Mr. McCown’s

immunity. Thus, the question of whether Reserves Network was entitled to summary judgment

as to Mr. Thomas’ claim based upon the doctrine of respondeat superior was not actually

considered and decided by the trial court.

       {¶37} “To succeed utilizing the doctrine of respondeat superior, [Mr. Thomas] must

show (1) that a principal-agent relationship existed between [Mr. McCown] and [Reserves

Network], and (2) that [Mr. McCown’s] tortious conduct was committed within the scope of

h[is] employment.” Thomas v. Speedway Superamerica, LLC, 9th Dist. No. 06CA0004, 2006-

Ohio-5068, at ¶17. Thus, for Reserves Network to succeed on its motion based upon the merits,
                                               18


it could have asserted either that Mr. McCown was an independent contractor or that his actions

were not within the scope of his employment. See id. Furthermore, it had an initial Dresher

burden to set forth facts that demonstrated a lack of factual dispute as to Mr. McCown’s

employment status. Yet, Reserves Network made neither argument below.

       {¶38} In discussing Mr. Thomas’s claim against it sounding in respondeat superior,

Reserves Network did not provide or point to any evidence concerning Mr. McCown’s

employment relationship with Reserves Network. Reserves Network hired Mr. McCown, paid

him and provided him with worker’s compensation insurance. Beyond that, Reserves Network

did not supply pertinent documentation or information concerning its employment relationship

with Mr. McCown. We do not know whether Mr. McCown had an employment contract with

Reserves Network further detailing the employment relationship. We do not know whether

Reserves network retained the ultimate right of control over where and when Mr. McCown

worked and whether it had the authority to pull Mr. McCown off of any job he might be

working. Nor do we know whether Mr. McCown was a regular W-2 employee or whether he

received a 1099 – something that would be more consistent with an independent contractor.

Rather, in its motion for summary judgment, it merely stated that “[Mr.] Thomas’s claims

against [Mr.] McCown are barred by operation of R.C. []4123.741. Thus, there exist no material

issues of fact[, and] Thomas’s claim against [Reserves Network] must also fail.”

       {¶39} Thus, in my view, Reserves Network did not meet its Dresher burden to

demonstrate that Mr. McCown was not its employee. Notably, in assessing this question, the

issue is more complicated by virtue of the nature of Reserves Network’s business. A unique

problem is presented in this employment scenario where Reserves Network is the general or

primary employer that services its business clients such as Central by providing them with
                                                 19


temporary employees under circumstances where Reserves may retain the ultimate control over

its employee. “Under Ohio law, ‘[t]he chief test in determining whether one is an employee or

an independent contractor is the right to control the manner or means of performing the work.’”

Burns v. Rudolph, 9th Dist. No. 22780, 2005-Ohio-6918, at ¶12, quoting Bobik v. Indus. Comm.

(1946), 146 Ohio St. 187, paragraph one of the syllabus.

       “Factors to be considered in making this determination include: ‘[(1)] who
       controls the details and quality of the work; [(2)] who controls the hours worked;
       [(3)] who selects the materials, tools and personnel used; [(4)] who selects the
       routes [traveled]; [(5)] the length of employment; [(6)] the type of business; [(7)]
       the method of payment; and [(8)] any pertinent agreements or contracts.’” Burns
       at ¶12, quoting Bostic v. Connor (1988), 37 Ohio St.3d 144, 146.

       {¶40} Thus, in examining Mr. McCown’s position vis a vis Reserves Network, based on

the record, it would appear that he had little or no control over the type of business he was placed

in or the length of employment.      Further, we have no information regarding the existence of

contracts, if any, between these parties. The fact that Central could direct Mr. McCown as to his

work, does not warrant the conclusion that Mr. McCown is an independent contractor of

Reserves Network. For this particular aspect of the analysis, the focus is on the relationship

between Mr. McCown and Reserves Network. Based upon the record before us, it does not

appear that Mr. McCown had much control over “the manner or means of performing the

work[]” with respect to Reserves Network, and there is no evidence that Mr. McCown reserved

any right of control with respect to his employment with Reserves Network. Burns at ¶12,

quoting Bobik, 146 Ohio St. at paragraph one of the syllabus.

       {¶41} Given Reserves Network’s failure to meet its Dresher burden as well as its failure

to develop any legal argument in the trial court, I would decline to decide the issue of respondeat

superior in the first instance. Accordingly, I respectfully dissent.
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APPEARANCES:

JESSE M. SCHMIDT and ROBERT C. OCHS, Attorneys at Law, for Appellant.

STEVEN G. JANIK, AUDREY K. BENTZ, and JOHN J. ROSZCZYK, Attorneys at Law, for
Appellee.
