[Cite as Brown-Spurgeon v. Paul Davis Systems of Tri-State Area, Inc., 2013-Ohio-1845.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




KRISTINA BROWN-SPURGEON, et al.,                       :
                                                                   CASE NO. CA2012-09-069
        Plaintiffs-Appellants,                         :
                                                                           OPINION
                                                       :                    5/6/2013
   - vs -
                                                       :

PAUL DAVIS SYSTEMS OF                                  :
TRI-STATE AREA, INC., et al.,
                                                       :
        Defendants-Appellees.
                                                       :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2011CV00776


The Drew Law Firm Co., L.P.A., Michael D. McNeil, One West Fourth Street, Suite 2400,
Cincinnati, Ohio 45202, for plaintiffs-appellants

Reminger Co., L.P.A., Robert W. Hojnoski, 525 Vine Street, Suite 1700, Cincinnati, Ohio
45202, for defendants-appellees, Paul Davis Systems and Jack Anthony Kleier

Law Offices of John D. Rodman, Richard S. Matas, 7100 East Pleasant Valley Road, Suite
210, Independence, Ohio 44131, for defendant-appellee, Phil Griffin, dba Renovated
Solutions



        S. POWELL, J.

        {¶ 1} Plaintiffs-appellants, Kristina Brown-Spurgeon and Andrew Spurgeon, appeal a

decision of the Clermont County Court of Common Pleas granting summary judgment in

favor of defendants-appellees, Paul Davis Systems of Tri-State Area, Inc. (PDS) and Phil
                                                                              Clermont CA2012-09-069

Griffin, doing business as Renovated Solutions.1 For the reasons stated below, we affirm in

part and reverse in part the decision of the trial court.

        {¶ 2} In May 2010, Kristina Brown-Spurgeon's home was flooded. The home

suffered damaged and required significant repairs. Kristina signed a "Work Authorization"

with PDS to allow the company to complete these repairs. This contract contained an

exculpatory clause which provided that PDS would not be liable for theft and damages arising

out of the services performed pursuant to the contract. The clause did allow liability for

actions that arise out of the PDS's sole negligence.

        {¶ 3} After PDS and Kristina signed the contract, they discussed when the repairs

would occur. Kristina and her future husband, Andrew Spurgeon, were preparing for their

upcoming wedding and honeymoon and Kristina wanted to schedule the repairs in a month's

time. The couple would be out of town for a couple of weeks and Kristina did not want to

leave her home open to PDS unsupervised. The PDS employee persuaded Kristina to allow

the company to perform the repairs while the couple was out of town. The PDS employee

told Kristina that the company has high standards of whom they let in their customers'

homes, they conduct background checks on their employees, and that PDS could put a key

box on the front door of the home to secure the home. During this conversation, the

employee never mentioned that PDS would sub-contract any of the work to another

company.

        {¶ 4} Kristina agreed to allow PDS access to her home in her absence to complete

the repairs. Kristina also arranged for her sister to check on the home while she was out of

town. On June 8, 2010, the renovation work began. Four days later, Kristina and Andrew left

for their honeymoon.



1. The trial court did not grant summary judgment for the third defendant, Jack Kleier.
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       {¶ 5} During the repairs, PDS assigned its employee to be the project manager. PDS

then hired Phil Griffin, the owner of Renovated Solutions, to perform a portion of the

remodeling and restoration work. PDS and Griffin signed a "Tradesperson Agreement" which

provided that Griffin would conduct background checks on all persons working on jobs

obtained through PDS.

       {¶ 6} While the Spurgeons were on their honeymoon, Kristina discovered that one of

her credit cards had been used by someone in Ohio and the charges exceeded the credit

limit. Kristina immediately contacted her sister, who went to the home to investigate. Her

sister discovered that a wallet was missing and contacted the police and the general

manager of PDS. After an investigation, it was determined that Jack Kleier, one of the men

working on the repairs, was responsible for the theft.

       {¶ 7} After returning from her honeymoon, Kristina discovered that prescription drugs,

jewelry, electronics, and other personal property had also been taken from her home. The

value of the stolen items exceeded $18,000. Kleier admitted to stealing all these items. The

prescription drugs that Kleier stole had Kristina's address on the bottle. Kleier admitted to

distributing these drugs.

       {¶ 8} After the theft, Kristina spoke to Griffin about Kleier. Griffin stated that he knew

Kleier personally, Kleier has drug issues, and he did not know that Kleier had been in the

house. Griffin's business partner stated that Griffin was involved in a "prison ministry" to give

second chances to former prisoners and Kleier was one of the prisoners.

       {¶ 9} On July 24, 2010, Kristina was attacked in her home by an intruder. Kristina

observed that the intruder was wearing a black hoodie, was in his late twenties, and was not

Kleier. Kristina was beaten severely and suffered serious injuries. The intruder did not steal

anything from the home. At the time of the attack, Kleier had been identified as the

perpetrator in the June theft.
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                                                                    Clermont CA2012-09-069

       {¶ 10} On May 6, 2011, the Spurgeons sued PDS, Griffin, and Kleier. Subsequently,

PDS and Griffin moved for summary judgment on all of the Spurgeons' claims. The trial court

granted summary judgment in favor of PDS and Griffin.

       {¶ 11} The Spurgeons filed this appeal, asserting a sole assignment of error:

       {¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS BY

DETERMINING THAT PDS AND GRIFFIN WERE ENTITLED TO SUMMARY JUDGMENT

ON ALL CLAIIMS ARISING FROM JACK KLEIER'S CONDUCT.

       {¶ 13} This court's review of a trial court's ruling on a summary judgment motion is de

novo, which means that we review the judgment independently and without deference to the

trial court's determination. Simmons v. Yingling, 12th Dist. No. CA2010-11-117, 2011-Ohio-

4041, ¶ 18. We utilize the same standard in our review that the trial court uses in its

evaluation of the motion. Id.

       {¶ 14} Summary judgment is appropriate when there are no genuine issues of material

fact to be litigated, the moving party is entitled to judgment as a matter of law, reasonable

minds can come to only one conclusion, and that conclusion is adverse to the nonmoving

party. Civ.R. 56(C); Williams v. McFarland Properties, L.L.C., 177 Ohio App.3d 490, 2008-

Ohio-3594 (12th Dist.), ¶ 7. To prevail on a motion for summary judgment, the moving party

must be able to point to evidentiary materials that show there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. Dresher v.

Burt, 75 Ohio St.3d 280, 293 (1996). The nonmoving party must then present evidence that

some issue of material fact remains to be resolved; it may not rest on the mere allegations or

denials in its pleadings. Id. All evidence submitted in connection with a motion for summary

judgment must be construed most strongly in favor of the party against whom the motion is

made. Morris v. First Natl. Bank & Trust Co., 21 Ohio St.2d 25, 28 (1970).

       {¶ 15} This case involves multiple theories of tort liability against PDS and Griffin. We
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begin by discussing PDS and Griffin's vicarious liability.

                                     Vicarious Liability

       {¶ 16} Under this theory, the issue is whether PDS and Griffin are vicariously liable for

Kleier's theft under respondeat superior for the actions of Kleier. Alternatively, Spurgeon

maintains that PDS and Griffin are liable under the doctrine of agency by estoppel.

                                   a. Respondeat Superior

       {¶ 17} Under the doctrine of respondeat superior, an employer is liable for an

employee's negligence where work is performed for the master and the servant is subject to

the control of the master in performing the work. Boch v. New York Life Ins. Co., 175 Ohio

St. 458 (1964). For the employer to be liable, the employee's acts must also be within the

scope of the employment. State Farm Mut. Auto. Ins. Co. v. King, 12th Dist. Nos. CA2005-

04-045, CA2005-04-049, 2006-Ohio-336, ¶ 38. "'Conduct is within the scope of employment

if it is initiated in part to further or promote the master's business.'" Id. quoting Martin v.

Central Ohio Transit Auth., 70 Ohio App.3d 83, 92 (10th Dist.1990).

       {¶ 18} Additionally, under respondeat superior a principal is generally not liable for the

acts of an independent contractor. Mendoza v. Bishop, 12th Dist. No. CA2004-04-080, 2005-

Ohio-238, ¶ 34. Whether one is an employee or an independent contractor depends on the

facts of each case. Id. The key factual determination in making such a finding is who had

the right to control the manner or means of doing the work. Id. As noted by the Ohio

Supreme Court, in making such a determination,

              [t]he factors to be considered include, but are certainly not limited
              to, such indicia as who controls the details and quality of the
              work; who controls the hours worked; who selects the materials,
              tools and personnel used; who selects the routes traveled; the
              length of employment; the type of business; the method of
              payment; and any pertinent agreements or contracts.

Bostic v. Connor, 37 Ohio St.3d 144, 146 (1988).

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                                                                   Clermont CA2012-09-069

       {¶ 19} "Where the evidence is not in conflict or the facts are admitted, the question of

whether a person is an employee or an independent contractor is a matter of law to be

determined by the court." Touhey v. Ed's Tree and Turf, L.L.C., 194 Ohio App.3d 800, 2011-

Ohio-3432 (12th Dist.), ¶ 9 citing Bostic at paragraph one of the syllabus.

       {¶ 20} In the present case, PDS submitted an affidavit of Doug Wallin, the general

manager of PDS, concerning whether Griffin was an independent contractor. Wallin averred

that it hired the sub-contractor, Griffin, to complete a portion of the renovation work at

Kristina's home. Wallin stated that Griffin is paid by the job, no employee of Griffin is on

PDS's payroll, PDS does not participate in the hiring or supervision of Griffin's employees,

PDS did not control the manner or means by which Griffin performed the repairs, PDS did not

supply the tools or the materials for the work performed, and PDS and Griffin have separate

places of business. Additionally, Wallin averred that PDS had no knowledge that Kleier was

hired, Kleier had a criminal record, or that Kleier stole items from the Spurgeons' home.

       {¶ 21} Additionally, evidence was presented from Griffin regarding whether Kleier was

an independent contractor. Griffin agreed that his company was hired by PDS as a sub-

contractor to perform a portion of the renovation work at the Spurgeons' home. Griffin stated

that he then hired a sub-contractor, Chris Matisak, to perform the work. Griffin explained that

Matisak was not subject to his direction or control, he did not control the manner or means of

which Matisak performed the work, he did not control the hours worked, and Matisak used his

own materials and tools.

       {¶ 22} Kristina Spurgeon submitted a deposition in which she testified regarding the

renovation work.    She explained that she believed that PDS was performing all the

renovation work on her home until her credit card was stolen. While on her honeymoon,

Kristina spoke with PDS who informed her that an employee from the sub-contracting

company stole the card. Kristina was not told the name of the company. After Kristina
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                                                                       Clermont CA2012-09-069

returned from her honeymoon, PDS introduced her to Griffin and explained that Griffin was

the sub-contractor they used for the project. During this meeting, Griffin stated that he knew

Kleier personally, Kleier has drug issues, and that he did not know that Kleier had been in the

house. Griffin and his business partner then went to pawn stores around the area to try and

find some of Kristina's stolen jewelry.

           {¶ 23} Kristina also testified in her deposition that after the theft, a portion of the

renovation work remained to be completed at the Spurgeons' home. Kristina requested that

a different sub-contracting company be used and initially PDS ignored her request and sent

Griffin's crew. Griffin's business partner was present during this and told Kristina that they

were involved in a "prison ministry" to give second chances to former prisoners and Kleier

was one of the prisoners. The business partner also told Kristina that Kleier had been at her

home for two days and that he has drug problems. Thereafter, Kristina learned that Kleier

was left alone in the home to do drywall work.

           {¶ 24} We find that the trial court did not err in determining that PDS and Griffin are

not liable for the actions of Kleier under the doctrine of respondeat superior. The evidence

established that Griffin was an independent contractor for PDS as PDS did not reserve the

right to control Griffin's work. Nevertheless, the evidence did create a genuine issue of

material fact as to whether Kleier was an independent contractor for Griffin. While Griffin

averred that it did not have the right to control Kleier's work, Kristina testified that Griffin

acknowledged that he hired Kleier and had the right to control his work. Therefore, there is a

genuine issue of material fact regarding whether Kleier was an independent contractor for

Griffin.

           {¶ 25} However, even if Kleier was an employee of Griffin, Griffin is not liable for

Kleier's actions because they were intentional acts that were outside the course and scope of

Kleier's employment. There is no evidence that Griffin was aware of Kleier's theft, approved
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of the theft, or that his theft was the ordinary and natural incident of the services Griffin

provided.    Additionally, Kleier's theft did not promote or facilitate Griffin's business.

Therefore, the trial court properly found that PDS and Griffin cannot be liable for Kleier's

actions under the doctrine of respondeat superior.

                                    b. Agency by Estoppel

       {¶ 26} The Spurgeons argue that even if PDS and Griffin cannot be held liable under

the doctrine of respondeat superior, they can still recover under agency by estoppel. Agency

by estoppel allows a principal to be vicariously liable for the torts of an independent

contractor. Cyrus v. Home Depot USA, Inc., 12th Dist. No. CA2007-09-098, 2008-Ohio-

4315, ¶ 13. An agency by estoppel is created where a principal holds an agent out as

possessing authority to act on the principal's behalf, or the principal knowingly permits the

agent to act as though the agent had such authority. McSweeney v. Jackson, 117 Ohio

App.3d 623, 630 (4th Dist.1996). For a principal to be bound by an agent's acts, the

evidence must show that: 1) the defendant made representations leading the plaintiff to

reasonably believe that the wrongdoer was operating as an agent under the defendant's

authority; and 2) the plaintiff was thereby induced to rely upon the ostensible agency

relationship to his or her detriment. Shaffer v. Maier, 68 Ohio St.3d 416, 418 (1994).

       {¶ 27} We begin by noting that this doctrine does not apply to Griffin because there is

no evidence that Griffin made any representations to the Spurgeons regarding Kleier's

agency relationship. Additionally, as Kristina did not know of Griffin's existence until after the

theft occurred, there is no evidence that Kristina relied on the agency relationship to her

detriment.

       {¶ 28} However, we find that there are genuine issues of material fact as to whether

PDS should be liable for Kleier's theft under agency by estoppel. In response to Kristina's

reservations about allowing PDS into her home unsupervised, PDS made representations
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that all its employees are background checked and that PDS follows the highest standards

regarding whom they allow in customers' homes. Additionally, the PDS employee told

Kristina that they could put a key box on the front door of her home to ensure that only the

correct people were getting into her home. While PDS never stated that it would not use

sub-contractors in the home, it also did not state that it would. PDS's representations about

the background checks of its employees in response to Kristina's concerns would be

meaningless if PDS allowed sub-contractors that have not been background checked into the

home. Construing the evidence in the light most favorable to the Spurgeons, we find that

these representations created a genuine issue of fact as to whether PDS made

representations that the persons inside the Spurgeons' home would be their agents.

        {¶ 29} Therefore, we find that the trial court erred in its vicarious liability analysis.

While PDS and Griffin are not liable under the doctrine of respondeat superior, there is a

genuine issue of material fact regarding whether PDS is liable under agency by estoppel.

Therefore, the trial court erred in granting summary judgment to PDS under agency by

estoppel.

                                              Direct Liability

        {¶ 30} The Spurgeons' other claims against PDS and Griffin asserts that the

companies are directly liable for Kleier's theft and the subsequent attack. These theories of
                                                                                                              2
liability fall under negligent hiring and supervision as well as a general negligence theory.

We will begin by addressing the general negligence theory.




2. In their brief, the Spurgeons frame this argument under the doctrine of "promissory estoppel." However,
promissory estoppel falls under contract law and in this case neither the Spurgeons' complaint or memo contra to
the motions for summary judgment asserted any contractual argument. Therefore, this issue is not properly
before the court. State v. Guzman-Martinez, 12th Dist. No. CA2010-06-059, 2011-Ohio-1310, ¶ 9. Instead, the
Spurgeons' argument is more properly addressed under a negligence theory.



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                                        a. Negligence

       {¶ 31} To survive a properly supported motion for summary judgment in a negligence

action, the Spurgeons must establish that genuine issues of material fact exist as to whether

PDS and Griffin owed them a duty, PDS and Griffin breached that duty, and the breach was

a proximate cause of their injury. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75,

77 (1984). The existence of a duty is a question of law. Evans v. Ohio State Univ., 112 Ohio

App.3d 724, 739 (10th Dist.1996). Whether a defendant owes a plaintiff a duty in a

negligence case is a fundamental aspect of establishing actionable negligence, and if there is

no duty or obligation of care, no legal liability may arise for the negligent act. Wagner v. Ohio

State Univ. Med. Ctr., 188 Ohio App.3d 65, 2010-Ohio-2561 (10th Dist.), ¶ 22.

       {¶ 32} Generally, there is no duty to control the conduct of a third party by preventing

him from causing harm to another, except in cases where there exists a special relationship

between the actor and the third party which gives rise to a duty to control, or between the

actor and another which gives the other the right to protection. Fed. Steel & Wire Corp. v.

Ruhlin Constr. Co., 45 Ohio St.3d 171, 173 (1989). Therefore, a defendant's duty to a

plaintiff depends upon the relationship between the parties and the foreseeability of injury to

someone in the plaintiff's position. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645

(1992).

       {¶ 33} Additionally, to find liability in negligence against a defendant based upon the

criminal act of a third party, the plaintiff must demonstrate that the criminal act was

foreseeable. Reitz v. May Co. Dept. Stores, 66 Ohio App.3d 188, 191-192 (8th Dist.1990).

"Injury is foreseeable if a defendant knows or should have known that his act was likely to

result in harm to someone." Simmers at 645. The foreseeability of a criminal act depends on

the knowledge of the defendant, which must be determined by the totality of the

circumstances, and it is only when the totality of the circumstances are "somewhat
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overwhelming" that the defendant will be held liable. Bess v. Traders World, Inc., 12th Dist.

No. CA2001-06-063, 2001 WL 1652810, *2.

                                            1. Theft

       {¶ 34} The Spurgeons argue that PDS and Griffin had a duty to protect against Kleier's

theft. The Spurgeons assert that this duty comes from the control over the Sprugeons' home

as well as PDS's assurances of the honesty of its employees and Griffin's "Tradesperson

Agreement." In granting summary judgment to PDS and Griffin, the trial court failed to

address whether the companies had a duty to protect the Spurgeons from Kleier.

       {¶ 35} Our first inquiry is whether PDS and Griffin had a "special relationship" with the

Spurgeons. We find that PDS and Griffin had control over the Spurgeons' home and thus a

"special relationship" existed between the parties. The evidence established that the

Spurgeons allowed PDS in their home to perform renovation repairs. The Spurgeons set up

a key box on the front door so only those who were "authorized" from PDS would have

access to the home. Subsequently, PDS allowed Griffin, without the Spurgeons' knowledge

or consent, access to their home while they were away. Besides Kristina's sister who also

had access to the home and checked on the renovations occasionally, PDS and Griffin had

sole access to the home.

       {¶ 36} We also find that Kleier's theft was foreseeable. In regards to PDS, PDS's

behavior shows the company knew it was foreseeable that an employee or independent

contractor could steal from its customers. The PDS employee told Kristina that it conducts

background checks on all of its employees and holds these employees to the "highest

standards." Additionally, the language in the "Work Authorization" shows that theft is

foreseeable because it attempts to exclude liability for specific items subject to theft. Further,

the evidence showed that Griffin could have foreseen Kleier's theft. Kristina explained that

Griffin's company operated a "second chance ministry" for those recently released from
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prison, Kleier was employed as a result of this ministry, and that Kleier has drugs problems.

Additionally, the "Tradesperson Agreement" between Griffin and PDS required Griffin to

background check its employees. Therefore, it was reasonably foreseeable that if left

unsupervised, Kleier would steal from the Spurgeons.

       {¶ 37} Accordingly, PDS and Griffin owed the Spurgeons a duty to protect against

Kleier's criminal acts. Additionally, there is a genuine issue of material fact as to whether

PDS and Griffin breached that duty and whether that breach was a proximate cause of the

harm to the Spurgeons. Thus, the trial court erred in granting summary judgment to PDS and

Griffin under this theory.

                                          2. Attack

       {¶ 38} The Spurgeons also argue that PDS and Griffin owed a duty to protect Kristina

against the assault that occurred on July 24, 2010. PDS and Griffin argue that they did not

have a duty to protect Kristina from the attack and that there is no evidence to connect the

attack to Kleier.

       {¶ 39} "[N]egligence is a fact necessary to be shown; it will not be presumed." Boles

v. Montgomery Ward & Co., 153 Ohio St. 381, 388 (1950). A negligence claim based on

conjecture, speculation, or the stacking of inference upon inference cannot succeed. Hughes

v. Kroger Co., 12th Dist. No. CA2005-10-099, 2006-Ohio-879. Instead, there must be

evidence and not mere speculations connecting the wrongful act to the alleged tortfeasor.

Nationwide Agribusiness Ins. Co. v. J.D. Equip., Inc., 12th Dist. No. CA2011-06-012, 2012-

Ohio-229, ¶ 21. See Essig v. Sara Lane Corp., 10th Dist. No. 99AP-1432 (Aug. 1, 2000)

(insufficient evidence to show maids took homeowner's jewelry when failed to establish

evidence connecting theft to maids.)

       {¶ 40} In Kristina's deposition, she testified that on July 24, 2010, a man came into her

home through an unlocked back door, assaulted her, and knocked her unconscious. Kristina
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explained this occurred about a month after Kleier's theft. She was unable to identify her

attacker but stated that the man was not Kleier. Once inside the home, Kristina reported that

the assailant stated, "Where are the drugs? Where are my drugs?" The man then assaulted

Kristina. Nothing was taken from the home.

       {¶ 41} In Kristina's and Andrew's depositions, they opined that the attack was

coordinated by Kleier in relation for the criminal prosecution against him for the theft. To

support this conclusion, they noted that nothing in the home had been stolen even though

Kristina's purse and laptop were in plain sight. The couple also believed that another

explanation for the attack was that the intruder was looking for drugs. They explained that

during Kleier's theft, he stole some of her prescription medication and then distributed the

drugs. The medication bottles that were stolen contained her address. In support of these

theories, Kristina and Andrew noted that the home is located in a good area that experiences

few home invasions.

       {¶ 42} We find that the trial court did not err in granting summary judgment to PDS

and Griffin regarding their liability for the assault. While the ordeal Kristina experienced was

horrific, the Spurgeons have failed to put forth evidence to create a genuine issue of material

fact to link Kleier to the assault. The only evidence regarding the assault was that the man

was not Kleier, the man asked for drugs, stole nothing from the home, and assaulted Kristina.

This evidence fails to show that Kleier was somehow involved in the assault. The Spurgeons

are relying on their own speculations instead of evidence to connect Kleier and subsequently

PDS and Griffin to the crime. Therefore the trial court did not err in granting summary

judgment as to this issue.

                             b. Negligent Hiring and Retention

       {¶ 43} The Spurgeons next claim that PDS and Griffin are liable for the damages

resulting from Kleier's theft because the companies negligently hired and supervised Kleier.
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The trial court granted summary judgment to PDS finding that Kleier was an independent

contractor. The trial court also granted summary judgment to Griffin reasoning that Griffin

could not be liable for Kleier's "incompetence" because it was a criminal act.

       {¶ 44} This court has stated that when a party is seeking to prevail on a claim for the

negligent hiring and supervision of an employee by an employer, the party must show: (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

supervising the employee as the proximate cause of plaintiff's injuries. State Farm, 12th Dist.

Nos. CA2005-04-045, CA2005-04-049, 2006-Ohio-336 at ¶ 41.

       {¶ 45} An employer is liable for the negligent hiring or supervision when the employer

elects to employ an individual who has a past history of criminal conduct which the employer

had knowledge of or could have discovered through reasonable investigation. Wagner, 188

Ohio App.3d 65, 2010-Ohio-2561at ¶ 28, citing Byrd v. Faber, 57 Ohio St.3d 56, 62 (1991).

Additionally, to prevail on a negligent hiring claim, the plaintiff must show that an employment

relationship existed between the parties. An employment relationship does not exist if the

"agent" has been determined to be an independent contractor under respondeat superior.

Hartung-Teter v. McKnight, 3d Dist. No. 4-91-2 (June 26, 1991). See Mills v. Deehr, 8th Dist.

No. 82799, 2004-Ohio-2338, ¶ 14.

       {¶ 46} As discussed earlier, the evidence established that Kleier was an independent

contractor in regards to PDS. Therefore, as there was no employment relationship between

Kleier and PDS, the trial court did not err in granting summary judgment to PDS on this issue.

       {¶ 47} Regarding Griffin, however, there are genuine issues of material fact as to

whether Kleier was Griffin's employee. Therefore, the first element of negligent hiring and

supervision, an employment relationship, is satisfied. Additionally, Kleier's criminal act
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qualifies as "incompetence" under a negligent hiring or supervision theory. See Wagner at ¶

28. An employer cannot escape liability under negligent hiring or supervision simply because

his employee's "incompetence" was a criminal act. Griffin knew Kleier had a past history of

criminal conduct and drug problems as evidenced by Kristina's deposition and Kleier's

confession that he committed the theft. Further, there are genuine issues of material fact as

to whether Griffin's negligence in hiring Kleier and failing to supervise him proximately caused

the Spurgeon's damages.

       {¶ 48} Thus, we find the trial court erred in granting summary judgment to Griffin on

the negligent hiring and supervision claim. However, we find that the court did not err in

granting summary judgment on the negligent hiring and supervision claim to PDS.

                                      Exculpatory Clause

       {¶ 49} Last, we discuss whether PDS's exculpatory clause exempts it from liability.

PDS argues that the exculpatory clause contained in the "Work Authorization" agreement

exempts it from liability for Kleier's theft.

       {¶ 50} Releases from liability for future tortious conduct are generally not favored by

the law and are narrowly construed. Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 46-47

(1987). Such exculpatory clauses are to be strictly construed against the drafter unless the

language is clear and unequivocal. Id. at 47. Additionally, while the execution of a release

may bar claims of negligence, it cannot bar claims of willful and wanton conduct. Harsh v.

Lorain Cty Speedway, 111 Ohio App.3d 113, 118 (8th Dist.1996), citing Bowen v. Kil-Kare,

Inc., 63 Ohio St.3d 84, 90 (1992). Exculpatory clauses also cannot bar liability of a principal

from acts of its agents that are willful or wanton. Richard A. Bejian, D.O., Inc. v. Ohio Bell

Tel. Co., 54 Ohio St.2d 147, 158 (1978). See Ohio Cas. Ins. Co. v. D & J Distrib. & Mfg. Inc.,

6th Dist. No. L-08-1104, 2009-Ohio-3806, ¶ 36. "Willful conduct" has been defined as "an

intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose
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not to discharge some duty necessary to safety, or purposefully doing wrongful acts with

knowledge or appreciation of the likelihood of resulting injury." Anderson v. Massillon, 134

Ohio St.3d 380, 2012-Ohio-5711, paragraph two of the syllabus.

       {¶ 51} Nonetheless, courts routinely apply such releases to bar future tort liability as

long as the intent of the parties, with regard to exactly what kind of liability and what persons

and/or entities are being released, is stated in clear and unambiguous terms. Hague v.

Summit Acres Skilled Nursing & Rehab., 7th Dist. No. 09 NO 364, 2010-Ohio-6404. On the

other hand, where the language of the release is ambiguous or too general, courts have held

that the intent of the parties is a factual matter for the jury. Id. "The pivotal inquiry is whether

it is clear from the general terms of the entire contract, considered in light of what an ordinary

prudent and knowledgeable party of the same class would understand, that the proprietor is

to be relieved from liability for its own negligence." Swatzentruber v. Wee-K Corp., 117 Ohio

App.3d 420, 425 (4th Dist.1997).

       {¶ 52} The back of the "Work Authorization" form contained a list of several "terms

and conditions" of the contract between PDS and the Spurgeons. The exculpatory clauses

were not bolded or highlighted in anyway. Paragraph 7 stated:

               The contractor is not responsible for the theft, disappearance of
               or damage to jewelry, art objects, silver, gold, antiques, or other
               personal items in or on the owner's property and owner agrees to
               properly remove, store, or protect such items. (Emphasis
               added.)

       {¶ 53} Paragraph 11 stated:

               Release and indemnity waiver: Notice is given that owner hereby
               releases and discharges contractor from any and all claims,
               demands, and causes of action that owner has or hereafter may
               have * * * against contractor arising out of the services performed
               pursuant to this agreement or on account of any matter, act, or
               occurrence. Owner further agrees to indemnify, defend, and
               hold harmless contractor and its affiliates from and against all
               losses, liabilities, damages * * * based upon, arising out of, or
               otherwise in respect of any occurrence or damage arising out of
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              the work performed by contractor excepting that which arises
              directly from contractor's sole negligence or from contractor's
              willful act. (Emphasis added.)

       {¶ 54} First, we find that the exculpatory clause does not release PDS from vicarious

liability for Kleier's actions under the doctrine of agency by estoppel. As noted above, an

exculpatory clause cannot release willful or wanton conduct. There are no genuine issues of

material fact that in stealing from the Spurgeons, Kleier's theft was a wrongful act done

purposefully with the knowledge of the likelihood of the resulting injury. Therefore, if the trier

of fact finds PDS liable for Kleier's theft under agency by estoppel, the exculpatory clause

cannot release PDS's liability under this theory.

       {¶ 55} Second, we find that the exculpatory clause does not release PDS from direct

liability. Paragraph 11 expressly allows for an exception in the exculpatory clause for

damages that arise directly from "contractor's sole negligence."            Under the general

negligence theory, the Spurgeons allege that PDS was negligent in failing to protect Kristina

from Kleier. Therefore, as this claim rests upon PDS's sole negligence, it falls within the

exception in the clause.

                                      Conclusion

       {¶ 56} The Spurgeons' sole assignment of error is sustained in part and overruled in

part. The trial court did not err in granting summary judgment to PDS under the theories of

negligent hiring and supervision and respondeat superior. Furthermore, the trial court did not

err in granting summary judgment to Griffin under the theory of respondeat superior.

However, the court did err in granting summary judgment to PDS under both the vicarious

liability claim due to the doctrine of agency by estoppel and a general negligence theory.

Additionally, the court erred in granting summary judgment to Griffin under theories of

negligence and negligent hiring and supervision. Furthermore, we note the trial court's

granting of summary judgment on Andrew's loss of consortium was predicated on summary

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judgment to the other claims.   Therefore, summary judgment on this issue was also

improper.

      {¶ 57} Judgment affirmed in part, reversed in part, and remanded.


      HENDRICKSON, P.J. and PIPER, J., concur.




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