[Cite as Hudson v. Flores, 2016-Ohio-253.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




JEFFREY S. HUDSON,

        PLAINTIFF-APPELLANT,                             CASE NO. 1-15-42

        v.

STEVEN FLORES, ET AL.,                                   OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV20140503

                                     Judgment Affirmed

                          Date of Decision:   January 25, 2016




APPEARANCES:

        Jason N. Flower for Appellant

        Steven G. Carlino and Joshua C. Berns for Appellee, Jay Sairam,
        Inc., dba Imperial Inn

        John R. Chlysta for Intervening Appellee, Acuity, A Mutual Ins. Co.
Case No. 1-15-42


ROGERS, J.

            {¶1} Plaintiff-Appellant, Jeffrey Hudson, appeals the decision of the Court

of Common Pleas of Allen County granting summary judgment in favor of

Defendants-Appellees, Jay Sairaim, Inc. and Imperial Inn (collectively “the Inn”),

and intervening Plaintiff/Third-Party Defendant-Appellee, Acuity, a Mutual

Insurance Company (“Acuity”). On appeal, Hudson argues that the trial court

erred by determining (1) that Defendant, Steven Flores,1 committed a battery; (2)

that Flores was acting outside the scope of his employment with the Inn during the

incident with Hudson; and (3) that the Inn was not liable for Flores’s actions under

the theory of respondeat superior. For the reasons that follow, we affirm the

judgment of the trial court.

            {¶2} This case stems from an incident that occurred on July 27, 2013

between Flores and Hudson. The following facts are undisputed. Hudson lived at

the Imperial Inn for about three months during the middle of 2013. A couple of

nights before July 27, 2013, Hudson was socializing with Flores’s girlfriend,

Debra Mauri, in his hotel room. Mauri would occasionally stop by his room, and

the two would talk and drink a few beers. During this visit, Hudson believed that

Mauri had stolen a 20-dollar bill. On the morning of July 27, 2013, Hudson

approached Flores, an employee of the Inn, who was in the process of cleaning



1
    Flores is not a party in this appeal.

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Case No. 1-15-42


one of the rooms. At that time, Hudson accused Mauri of stealing his 20 dollars

and asked Flores to give him the money back. Flores immediately stopped what

he was doing and walked over to Hudson. Again, Hudson accused Mauri of

stealing the money and demanded that Flores pay. In response, Flores pushed

Hudson in an attempt to create some space between the two individuals. As a

result, Hudson tripped and fell backward. Flores quickly went over to Hudson and

grabbed a hold of Hudson’s arm to help him back to his feet. While helping

Hudson up, the two men heard an audible crack come from Hudson’s arm. It was

later determined that Hudson endured a broken arm as a result of the incident.

       {¶3} After the incident was over, Hudson approached the Inn’s main desk

where he informed the owner, Arati Patel, that one of her employees had just

injured him.    Patel, who only understands a limited amount of the English

language, told Hudson that if he did not like it there, then he could leave.

       {¶4} On August 7, 2014, Hudson filed a complaint against Flores and the

Inn, alleging six claims for relief. Hudson alleged two claims against Flores,

individually: negligence and negligent infliction of emotional distress.         The

remaining four claims alleged liability on the part of the Inn for respondeat

superior (two claims) and negligent hiring (two claims).

       {¶5} The Inn filed its answer on September 25, 2014, denying any liability

towards Hudson. As one of its defenses, the Inn argued that it was not liable


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because Flores was not acting within the scope of his employment when he pushed

Hudson and when Flores helped Hudson back to his feet.

        {¶6} On October 14, 2014, Acuity filed a motion to intervene.       In its

motion, Acuity argued that it had issued commercial-liability insurance to the Inn

and that Hudson’s claims were not covered under the policy.

        {¶7} Flores filed his answer on October 24, 2014.

        {¶8} The trial court granted Acuity’s motion to intervene on January 9,

2015.

        {¶9} Acuity filed an intervenor complaint for declaratory judgment against

Flores and the Inn on January 13, 2015. In its complaint, Acuity alleged that it

owed no duty to defend and indemnify Flores and the Inn in the lawsuit. The Inn

filed its answer to Acuity’s complaint on February 19, 2015.

        {¶10} On April 29, 2015, the Inn filed a motion for summary judgment on

Hudson’s claims. Specifically, the Inn argued that the record clearly established

that Flores was not acting within the scope of his employment when he injured

Hudson, thus no genuine issue of material fact existed and the Inn was entitled to

judgment as a matter of law on Hudson’s claims for respondeat superior. The Inn

also argued that it was entitled to judgment as a matter of law on the negligent

hiring claims because the record established that it had no actual or constructive

notice of any previous incompetence of Flores.


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       {¶11} Acuity filed a motion for summary judgment on its intervenor

complaint on May 8, 2015. Acuity argued that it was entitled to judgment as a

matter of law because there was no genuine issue of material fact that Flores was

not acting within the scope of his employment when he pushed Hudson and when

he helped Hudson to his feet. According to Acuity, the insurance policy defined

“insured” as employees, but only for acts within the scope of their employment.

Further, Acuity argued that Flores never filed an answer to its complaint,

subjecting him to a default judgment. Finally, Acuity argued that it had no duty to

indemnify the Inn because the Inn could not be subject to liability in the case.

       {¶12} Hudson filed his response to both motions for summary judgment on

June 10, 2015. In his response, Hudson argued that genuine issues of material fact

existed as to whether Flores was acting within the scope of his employment,

whether Flores went on a frolic or detour, and whether the Inn should have known

about Flores’s temper.

       {¶13} On June 17, 2015, the trial court granted both the Inn and Acuity’s

motions for summary judgment.         Specifically, the court found that although

Hudson alleged claims for negligence, Flores’s conduct constituted the intentional

tort of battery. Because of this, the Inn could only be found liable if Flores’s

behavior was reasonably calculated to facilitate or promote the Inn’s business.

The court found that the record clearly established that Flores’s actions in no way


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facilitated or promoted the Inn’s business, and therefore the Inn was entitled to

judgment as a matter of law as to both respondeat superior claims. As to the

negligent hiring claims, the court found that Hudson could not establish the

element of proximate causation, and therefore the Inn was entitled to judgment as

a matter of law. The court found that Acuity was entitled to judgment as a matter

of law because Flores was not an “insured” party for the purposes of the policy.

Although the claims against Flores remained pending, the court found that there

was no just reason for delay pursuant to Civ.R. 54(B), making its decision a final

appealable order.2

        {¶14} Hudson filed this timely appeal, presenting the following

assignments of error for our review.

                                  Assignment of Error No. I

        THE COURT ERRED IN DETERMINING THAT FLORES’
        ACTIONS CONSTITUTED AN INTENTIONAL TORT OF
        BATTERY.

                                 Assignment of Error No. II

        THE COURT ERRED WHEN THEY [SIC] DETERMINED
        THAT FLORES WAS ACTING OUTSIDE THE SCOPE OF
        HIS EMPLOYMENT DURING THE ALTERCATION WITH
        HUDSON.




2
  Although having the phrase “no just reason for delay” is not always sufficient to constitute a final
appealable order under Civ.R.54(B), we find that the court’s decision is a final appealable order.

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Case No. 1-15-42


                             Assignment of Error No. III

       THE COURT ERRED WHEN THEY [SIC] DETERMINED
       DEFENDANT-APPELLEE IMPERIAL WAS NOT LIABLE
       UNDER THE THEORY OF RESPONDEAT SUPERIOR.
       (EMPHASIS SIC.)

       {¶15} Due to the nature of Hudson’s assignments of error, we elect to

address them together.

       {¶16} Additionally, it appears, from the arguments made in his brief,

Hudson is only challenging the court’s determination of the respondeat superior

claims. Upon review of his brief, we cannot find an argument challenging the

court’s disposition of Hudson’s negligent hiring claims. Therefore, we will only

address the respondeat superior claims.

                         Assignments of Error Nos. I, II, & III

       {¶17} In his first, second, and third assignments of error, Hudson argues

that the trial court erred by determining that Flores was acting outside the scope of

his employment and then finding that the Inn could not be liable under the theory

of respondeat superior. We disagree.

       {¶18} An appellate court reviews a summary judgment order de

novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

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Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d

Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio

St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the

evidence as a whole: (1) there is no genuine issue as to any material fact, and (2)

the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In

conducting this analysis the court must determine “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, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

favor of the nonmoving party. Murphy v. City of Reynoldsburg, 65 Ohio St.3d

356, 358-359 (1992).

       {¶19} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).


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       {¶20} In order for an employer to be liable under the doctrine of respondeat

superior, the employee’s tortious conduct must be committed within the scope of

his employment. Cooke v. Montgomery Cty., 158 Ohio App.3d 139, 2004-Ohio-

3780, ¶ 17 (2d Dist.).     “An employee’s conduct is within the scope of his

employment if it is the type of action which he is employed to perform, occurs

substantially within the authorized limits of time and space, and is actuated, at

least in part, by a purpose to serve the master.” Armaly v. City of Wapakoneta, 3d

Dist. Auglaize No. 2-05-45, 2006-Ohio-3629, ¶ 45, citing Cooke at ¶ 20.

       {¶21} “Moreover, where the tort is intentional, the behavior giving rise to

the tort must be ‘calculated to facilitate or promote the business for which the

servant was employed.’ ” Id., quoting Byrd v. Faber, 57 Ohio St.3d 56, 58 (1991).

An employer can also be held liable for an employee’s intentional acts when the

employer ratifies that action, making the action its own. See Amato v. Heinika

Ltd., 8th Dist. Cuyahoga No. 84479, 2005-Ohio-189, ¶ 5. To do so, an employer

must possess knowledge of the facts. Morr v. Crouch, 19 Ohio St.2d 24 (1969),

syllabus (“Negligence or inaction alone is insufficient to show ratification of an

agent’s unauthorized act, but ratification must follow knowledge of the facts.”).

Finally, an integral part of ratification is that the employer derived a benefit from

the employee’s actions. Byrd at 59.




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       {¶22} The record clearly established that Flores was hired by the prior

owners of the Inn to perform every day maintenance and housekeeping for the Inn.

Specifically, Flores testified, “Okay. Housekeeping involved cleaning the rooms

once the people moved out of them. Maintenance involved anything that might

have been broken while the people were in the room.” (Docket No. 38, p. 19).

This did not change once the Patels bought the Inn. When asked to describe what

she expected Flores to do around the Inn, Patel stated that Flores was responsible

for cleaning the Inn’s guest rooms and doing the laundry. Patel also testified that

she will occasionally have Flores speak to a tenant that has not been paying rent.

Patel stated that she has only asked him to help a couple of times.           Flores

confirmed this at his deposition. Flores admitted that he had to call police to the

scene on several occasions to ensure that the confrontation did not escalate to

physical violence. He also agreed that part of his duties included making sure that

all the guests remained safe while at the Inn. Specifically, Flores testified that he

has placed “wet floor” signs, shoveled snow, and dumped salt on the sidewalks

during the winter months.

       {¶23} Hudson argues that Flores’s actions were committed within the scope

of his employment with the Inn because (1) Flores was cleaning a room while the

incident occurred; (2) Hudson thought that an employee, Mauri, had stolen his 20

dollars and was reporting the theft to another employee; and (3) Flores was


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responsible for making sure all guests, including Hudson, were safe. Under any of

these theories, Hudson’s argument lacks any merit.

       {¶24} Regarding Hudson’s first argument, a finding that an employee’s

tortious conduct took place at his place of his employment is not, by itself,

sufficient to hold an employer responsible under a theory of respondeat superior.

See Armaly, 2006-Ohio-3629 at ¶ 46. Although the incident occurred on the Inn’s

grounds, both Hudson and Flores testified that Flores had stopped cleaning the

room and approached Hudson after Hudson accused Mauri of the theft. The

record also indicated that Flores had occasionally been asked by Patel to talk with

residents that were failing to pay rent or were being evicted. Reading this fact in

the light most favorable to Hudson, there is nothing to suggest that Hudson and

Flores were talking about Hudson’s failure to pay rent. On the contrary, Hudson

initiated the conversation when he accused Mauri of the theft, and the substance of

the conversation pertained solely to the alleged theft.

       {¶25} Second, nothing in the record suggests that Hudson approached

Flores, because Flores was an employee of the Inn, to report that someone had

stolen his money. Hudson never testified that he went to talk to Flores because he

was an employee. Rather, Hudson testified that he went to talk to Flores because

he knew that Mauri, Flores’s live-in girlfriend, had stolen the money and he

wanted Flores to give him the money back. Simply being injured by an employee


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does not expose an employer to liability. Finally, both parties to the incident

agreed that the whole ordeal was purely personal in nature.

       {¶26} Third, Hudson argues that the Inn is liable for Flores’s conduct

because he was responsible for ensuring that all guests were safe while staying at

the Inn. Hudson supports his argument by stating that Flores has experience being

a security guard. This fact is irrelevant because Flores was not hired as a security

guard and no part of his duties include those of a security guard. Although Flores

admitted that he felt responsible for ensuring the safety of guests, he clarified that

he ensured that safety by doing things like placing “wet floor” signs, shoveling

snow off the sidewalk, and putting salt down during the winter months.

       {¶27} Alternatively, Hudson argues that the Inn ratified Flores’s conduct by

failing to fire Flores after the incident and by telling Hudson that if he did not like

it at the Inn he could leave. Again, Hudson’s argument lacks merit.          It is well

established that the retention of an employee does not lead to a conclusion that an

employer ratified the employee’s conduct. See Amato, 2005-Ohio-189 at ¶ 16,

citing Restatement of the Law 2d, Agency, Section 94, Comment d (1958). Patel

testified that she talked with Flores about the incident and determined that it did

not seem to be serious because Hudson did not go to the hospital right away and

because this was the first incident she was aware of involving Flores. Under the

second theory, Patel lacked knowledge of the facts when Hudson approached her


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after the incident. At her deposition, Patel clearly and unequivocally testified that

she did not know what happened between Flores and Hudson when she made the

alleged comments to Hudson after he approached her after the incident. It was not

until she was able to talk with Flores that she became aware of the specific facts.

Thus, the Inn cannot have been said to ratify Flores’s conduct when Patel made

these statements.

       {¶28} Finally, Hudson’s ratification argument fails because the Inn

received no benefit from Flores pushing Hudson. “When an employee strikes

patrons, there is no obvious benefit to the principal, for it is an action ‘to vent his

own spleen or malevolence against the injured person, [and] is a clear departure

from his employment and this principal or employer is not responsible therefor.’ ”

Amato at ¶ 14, quoting Vrabel v. Acri, 156 Ohio St. 467, 474 (1952). The record

is devoid of any evidence suggesting the Inn benefited from this incident. Without

evidence of any benefit derived, Hudson’s claims fail, and the Inn is entitled to

judgment as a matter of law.

       {¶29} Having found that no genuine issue of material fact exists, the Inn

was entitled to judgment as a matter of law. Thus, the trial court did not err when

it granted the Inn’s motion for summary judgment.             Further, although not

expressly stated by Hudson as error, the trial court did not err when it granted

Acuity’s motion for summary judgment. Because Flores’s actions were not within


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the scope of his employment, he did not fall under the definition of “insured” in

the policy. Thus, Acuity was entitled to judgment as a matter of law on their

intervening complaint.

       {¶30} Accordingly, we overrule Hudson’s first, second, and third

assignments of error.

       {¶31} Having found no error prejudicial to Hudson, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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