[Cite as Weaver v. Kraft, 2016-Ohio-3300.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

BRAD A. WEAVER, ET AL.                            JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiffs-Appellees                      Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 15CAE060046,
MARC C. KRAFT, ET AL.                                      15CAE090073

        Defendants-Appellees


CHARLES HARSH
                                                  OPINION
        Defendant-Appellant




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Court of
                                              Common Pleas, Trial Court Case No.
                                              13 CV H 02 0124


JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                        June 3, 2016

APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

WARREN S. GEORGE                              ROGER H. WILLIAMS
SHAUN YOUNG                                   HOLLY A. FACER
ARIEL M. LIPSKY                               CHRISTINA N. WILLIAMS
Keis George LLP                               Williams, Moliterno & Scully Co., LPA
55 Public Square, Suite 800                   425 W. Schrock Road, Ste 201
Cleveland, Ohio 44113                         Westerville, Ohio 43081
Delaware County, Case No. 15CAE060046, 15CAE090073                                         2

Hoffman, J.


         {¶1}   In Delaware App. No. 15 CAE 06 0046, defendant-appellant Charles Harsh

appeals the March 2, 2015 Judgment Entry Compensatory Damages and May 13, 2015

Judgment Entry Denying Defendant Charles Harsh’s Motion for New Trial entered by the

Delaware County Court of Common Pleas. In Delaware App. No. 15 CAE 09 0073,

Appellant appeals the August 24, 2015 Judgment Entry entered by the same court which,

in part, awarded prejudgment interest to plaintiffs-appellees Brad A. Weaver, et al.

                             STATEMENT OF THE CASE AND FACTS

         {¶2}   On February 11, 2013, Appellee Brad Weaver, as administrator of the

Estate of Heidi Hecker, as parent and natural guardian of Appellee Peyton Weaver, and

individually, filed a wrongful death and personal injury action against Appellant and Marc

Kraft, alleging negligent entrustment, negligent hiring and retention, and respondeat

superior, and seeking compensatory as well as punitive damages. The complaint arose

from a motor vehicle collision caused by Kraft, which took the life of Heidi Hecker, Brad

Weaver’s fiancé and Peyton Weaver’s mother, and severely injured Appellees. Appellant

filed a timely answer to the complaint, denying liability.1

         {¶3}   The parties engaged in extensive discovery.       Prior to trial, the parties

entered into numerous stipulations. Pertinent to this Appeal, the parties stipulated: 1)

Appellant entrusted his Toyota Tundra to Marc Kraft, and Kraft was driving the vehicle

with permission from Appellant; 2) at the time of the accident, Kraft did not have a valid

driver’s license; 3) Kraft’s Pennsylvania driving record reflects that his license was




1   Kraft is not a party to this Appeal. He is currently serving a 29½ year prison sentence.
Delaware County, Case No. 15CAE060046, 15CAE090073                                           3


suspended in the year 2004 until the year 2037 and he was designated as a “habitual

offender; and 4) Kraft’s negligence was the proximate cause of the November 8, 2012

collision involving Appellee Brad Weaver’s vehicle as well as the proximate cause of the

death of Heidi Hecker and the injuries of Appellees.

       {¶4}    Also prior to trial, Appellant filed a motion in limine to bar Jane Gray, Ph.D.,

Appellees’ expert witness, from testifying. Appellees retained Dr. Gray to give opinions

on whether or not Appellant’s hiring and screening and background checks were

reasonable as an employer. The trial court denied Appellant’s motion and Dr. Gray

ultimately testified at trial.   Appellant further objected to Appellees taking the video

deposition of Gareth Muller, manager of Labor Ready, the temporary staffing agency

outside of which Appellant met Kraft. Appellees maintained Muller’s testimony was

relevant and probative on the issue of negligent hiring and retention as well as the

reasonable care of an employer. The trial court overruled Appellant’s objections.

       {¶5}    The jury trial commenced on February 17, 2015. The following evidence

was adduced at trial:

       {¶6}    On September 30, 2012, Appellant was returning from a trip to the store

when he stopped at Labor Ready, a temporary staffing agency, to find an employee to

work for him. Appellant had contacted Labor Ready on a prior occasion when he was in

search of workers. When he arrived at Labor Ready, Appellant observed Kraft sitting on

the steps of the building. Appellant asked Kraft if he was looking for work. When Kraft

indicated he was, Appellant asked him what kind of work he could perform. Kraft replied

he was “a jack of all trades.”      Appellant offered Kraft $8/hour, cash, unreported and

untaxed. Appellant agreed to pick up Kraft the next morning and drive him to work. When
Delaware County, Case No. 15CAE060046, 15CAE090073                                        4


Appellant asked where Kraft lived, Kraft informed Appellant he was homeless and had

been staying outside near Labor Ready. Appellant agreed to pick up Kraft the next

morning in the Labor Ready parking lot.

       {¶7}   At the time, Kraft had been registered with Labor Ready as a general laborer

for approximately one year, working mainly labor and construction jobs. Kraft was never

asked to drive while performing work through Labor Ready.

       {¶8}   Appellant was a sole proprietor, who owned a number of rental properties.

Over the years, Appellant hired workers to assist with the maintenance and upkeep of his

properties.   Appellant never inquired of these workers’ backgrounds or verified

information about the workers’ backgrounds. He never contacted the Bureau of Motor

Vehicles to check a worker’s driving record despite the fact he had workers perform jobs

which required driving.

       {¶9}   For one or two weeks, every day, Monday through Friday, Appellant picked

up Kraft from the Labor Ready parking lot in the morning and dropped him off at the end

of the workday. One day, Kraft informed Appellant the cardboard box which served as

his shelter had been stolen or destroyed. Appellant invited Kraft to live, rent free, in one

of his rental properties, which was vacant at the time. Appellant continued to pick up Kraft

each morning and drop him off at the end of each workday. Kraft performed a variety of

jobs for Appellant. Some of the jobs required Kraft to drive. Appellant never asked to

see Kraft’s driver’s license, but Kraft had shown Appellant his Pennsylvania state ID card.

       {¶10} On November 8, 2012, Appellant pick up Kraft as had become the routine.

Kraft worked on one of Appellant’s vehicles that day. At approximately 1:30pm, Appellant

informed Kraft he was going to have lunch or coffee with a friend. Appellant told Kraft to
Delaware County, Case No. 15CAE060046, 15CAE090073                                        5


use the Toyota Tundra to drive himself home when he was finished working. Appellant

had loaned Kraft the truck to drive to and from work on at least one prior occasion. On

this day, Kraft finished working around 3:00pm, after which he left in Appellant’s truck and

drove to a bar where he consumed two beers. Kraft left the bar, stopped at a store and

purchased a twelve pack of beer before arriving at the rental property. Kraft consumed

two or three more beers then left the house to buy cigarettes. Kraft brought a couple of

beers with him to drink on the ride to the store. Kraft purchased cigarettes at a mini-mart.

While there, Kraft saw a friend who purchased a malt beverage for him. Kraft picked up

a female friend. He stopped at Subway to “cut a cup” in which to put the malt beverage.

       {¶11} At approximately 8:42pm, Kraft rear-ended a vehicle driven by Appellee

Brad Weaver, which was stopped at an intersection. Appellee Brad Weaver’s fiancé,

Heide Hecker, was fatally injured in the crash. Appellee Brad Weaver and his and

Hecker’s 10 month old daughter, Appellee Peyton Weaver, sustained injuries as a result

of the collision.

       {¶12} Appellees’ expert witness Dr. Jane Gray, a sociologist and criminologist,

stated, for over 27 years, she has worked as a consultant on business practices relative

to the hiring and retention of employees. Dr. Gray testified, “there’s a potential for harm

to the public when you’re hiring somebody and you do not do the appropriate background

checks.” Dr. Gray opined Appellant did not properly screen Kraft during the hiring process.

Dr. Gray continued, if Appellant had done so before entrusting his vehicle to Kraft, the

fatal November 8, 2012 accident could have been prevented.

       {¶13} Appellees played the videotaped deposition of Gareth Muller as part of its

case-in-chief. Muller testified Labor Ready has a background check policy in place.
Delaware County, Case No. 15CAE060046, 15CAE090073                                          6


Labor Ready conducts a background check on each worker, and confirms a worker has

a valid driver’s license before the worker is hired to do a job which involves driving. Muller

noted Labor Ready would not permit a worker with a suspended license or a worker who

could not produce a driver’s license to do a job which required driving. Muller noted Kraft

was a registered worker with Labor Ready and if Appellant had inquired about hiring him,

Kraft would have been subject to a background check.

       {¶14} At the close of Appellees’ case, both parties moved for directed verdicts on

the negligent entrustment, and negligent hiring and retention claims. Appellant argued

Kraft’s actions on the night of the accident were outside the scope of his employment.

Appellees countered the actions of Appellant and Kraft combined to cause the accident,

and the scope of employment is not an element of negligent hiring and retention. The

trial court denied both parties’ motions for directed verdict, finding the issues were for the

jury “to decide in terms of foreseeability and the standard of care that was shown by

[Appellant].” Tr. at 653.

       {¶15} After hearing all the evidence and deliberating, the jury returned a general

verdict in favor of Appellees and against Appellant and Kraft in the amount of

$2,683,455.00. The jury found Appellant liable for negligent entrustment as well as

negligent hiring and retention. The jury completed interrogatories. Interrogatory No. 1

read: “Do you find by the greater weight of the evidence that [Appellant] was negligent in

entrusting his motor vehicle to Defendant Marc C. Kraft on November 8, 2012?” The jury

answered, “Yes.” The interrogatory is signed by all eight jurors. Interrogatory No. 2 read:

“Do you find by the greater weight of the evidence that [Appellant] was negligent in the

hiring and/or retention of Defendant Marc C. Kraft?” The jury answered, “Yes.” The
Delaware County, Case No. 15CAE060046, 15CAE090073                                          7


interrogatory is signed by all eight jurors. The jury entered a verdict in favor of Appellant

on the issue of punitive damages. The trial court memorialized the verdicts via Judgment

Entry Compensatory Damages filed March 2, 2015.

         {¶16} Appellant filed several post-trial motions including a motion for new trial. In

his motion for new trial, Appellant conceded scope of employment was not an element of

a claim of negligent hiring and retention. In addition, Appellant argued the trial court

should have excluded the testimony of Dr. Gray as there was no evidence of Appellant

“hiring” Kraft, Kraft was not an employee, and Appellant was not an employer. Via

Judgment Entry filed May 13, 2015, the trial court denied Appellant’s motion for new trial,

repeating its finding the scope of employment is not an essential element of a negligent

hiring/retention claim. The court also found there was evidence of an employment

relationship between Appellant and Kraft.

         {¶17} Appellees filed numerous post-trial motions as well, including a motion for

prejudgment interest. Appellant filed a memorandum in opposition. The trial court

conducted an oral hearing on Appellees’ motions for prejudgment interest, attorney fees,

and punitive damages on May 15, 2015.

         {¶18} On June 11, 2015, Appellant filed a Notice of Appeal, appealing the trial

court’s March 2, 2015 Judgment Entry Compensatory Damages, and May 13, 2015

Judgment Entry Denying Defendant Charles Harsh’s Motion for New Trial. Via Judgment

Entry filed August 24, 2015, the trial court granted prejudgment interest in favor of

Appellees. The August 24, 2015 judgment entry included a certification under Civ. R.

54(B).
Delaware County, Case No. 15CAE060046, 15CAE090073                                         8


         {¶19} It is from the March 2, 2015 Judgment Entry Compensatory Damages and

May 13, 2015 Judgment Entry Denying Defendant Charles Harsh’s Motion for New Trial

Appellant appeals in Delaware App. No. 15 CAE 06 0046. It is from the August 24, 2015

Judgment Entry Appellant appeals in Delaware App. No. 15 CAE 09 0073. Appellant

assigns the following as error:

         {¶20} “I. THE TRIAL COURT ERRED IN DENYING A DIRECTED VERDICT FOR

APPELLANT ON APPELLEES’ NEGLIGENT HIRING AND/OR RETENTION CLAIM.

(TRANSCRIPT, P. 653)

         {¶21} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE

PREJUDICIAL TESTIMONY OF APPELLEES’ FORESEEABILITY EXPERT JANE

GRAY, PH.D. (TRANSCRIPT, PP. 484-546)

         {¶22} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE

JURY TO HEAR THE IRRELEVANT AND PREJUDICIAL TESTIMONY OF GARETH

MULLER. (TRANSCRIPT, P. 339)

         {¶23} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

PLAINTIFFS [SIC] PREJUDGMENT INTEREST. (JUDGMENT ENTRY, AUG. 24, 2015,

PP. 3-5)”

                                                  I

         {¶24} In his first assignment of error, Appellant maintains the trial court erred in

denying his motion for directed verdict on Appellees’ negligent hiring and/or retention

claim.

         {¶25} The two-issue rule holds where there are two causes of action, or two

defenses, thereby raising separate and distinct issues, and a general verdict has been
Delaware County, Case No. 15CAE060046, 15CAE090073                                         9


returned, and the mental processes of the jury have not been tested by special

interrogatories to indicate which of the issues was resolved in favor of the successful

party, it will be presumed that all issues were so determined; and that, where a single

determinative issue has been tried free from error, error in presenting another issue will

be disregarded. M & M Winfield, L.L.C. v. Huntington Mtge. Co., 5th Dist. No. 2014 AP

07 0027, 2015-Ohio-583, ¶ 20, quoting H.E. Culbertson Co. v. Warden, 123 Ohio St. 297,

303 (1931).

       {¶26} In the instant action, the jury rendered a general verdict in favor of

Appellees. The jury answered interrogatories, however, they did not indicate which claim

was determinative of their verdict or the amount of damages awarded for each claim.

Given that a general verdict was rendered in this case, any error the trial court may have

made in denying Appellant’s motion for directed verdict on Appellees’ negligent hiring

and/or retention claim was not prejudicial to Appellant because there existed a separate

and independent basis for finding him liable to Appellees.

       {¶27} Appellant’s first assignment of error is overruled.

                                               II, III

       {¶28} In his second assignment of error, Appellant asserts the trial court abused

its discretion in admitting the expert testimony of Dr. Jane Gray. In his third assignment

of error, Appellant contends the trial court abused its discretion in admitting the testimony

of Gareth Muller.

       {¶29} Dr. Gray’s testimony focused on the issue of Appellant’s negligence in hiring

and retaining Kraft as well as the issue of foreseeability. Muller’s testimony was relative
Delaware County, Case No. 15CAE060046, 15CAE090073                                        10


to the issue of negligent hiring and retention as well as the reasonable care of an

employer.

      {¶30} Assuming, arguendo, the trial court erroneously admitted the testimony

about which Appellant complains, I find any error arising therefrom would not constitute

an abuse of discretion because of the application of the two-issue rule.

      {¶31} Appellant’s second and third assignments of error are overruled.

                                                IV

      {¶32} In his final assignment of error, Appellant contends the trial court erred in

awarding prejudgment interest.

      {¶33} An appellate court's review of a trial court's award of prejudgment interest

is governed by an abuse of discretion standard. Landis v. Grange Mutual Insurance Co.

(1998), 82 Ohio St.3d 339, 695 N.E.2d 1140. In order to find an abuse of discretion, we

must determine the trial court's decision was unreasonable, arbitrary or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 450 N.E.2d 1140.

      {¶34} R.C. 1343.03(C), which governs the award of prejudgment interest in a tort

action, provides:

      {¶35} If, upon motion of any party to a civil action that is based on tortious conduct,

that has not been settled by agreement of the parties, and in which the court has rendered

a judgment, decree, or order for the payment of money, the court determines at a hearing

held subsequent to the verdict or decision in the action that the party required to pay the

money failed to make a good faith effort to settle the case and that the party to whom the
Delaware County, Case No. 15CAE060046, 15CAE090073                                         11


money is to be paid did not fail to make a good faith effort to settle the case, interest on

the judgment, decree, or order shall be computed.

       {¶36} The party requesting the prejudgment interest bears the burden of

demonstrating that the other party failed to make a good faith effort to settle the case.

Broadstone v. Quillen, 162 Ohio App.3d 632, 2005-Ohio-4278, 834 N.E.2d 424, ¶ 27,

citing Loder v. Burger (11th Dist.1996), 113 Ohio App.3d 669, 674, 681 N.E.2d 1357.

       {¶37} “A party has not ‘failed to make a good faith effort to settle’ under R.C.

1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally

evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of

the proceedings, and (4) made a good faith monetary settlement offer or responded in

good faith to an offer from the other party.” Kalain v. Smith (1986), 25 Ohio St.3d 157,

159, 495 N.E.2d 572. If a party has a good faith, objectively reasonable belief that he has

no liability, he need not make a monetary settlement offer.” Id.

       {¶38} The decision as to whether a party's settlement efforts indicate good faith is

generally within the sound discretion of the trial court. Huffman v. Hair Surgeon, Inc.

(1985), 19 Ohio St.3d 83, 482 N.E.2d 1248. This court will not overturn a finding on this

issue unless the trial court's actions indicate an abuse of discretion.

       {¶39} I do not interpret Kalain as requiring all four criteria to be applicable to find

a lack of good faith. The criteria articulated in Kalain were used to conclude a good faith

was made. In Detelich v. Gecik (1993), 90 Ohio App.3d 793, 797, 630 N.E.2d 771, the

11th District found both the first and third prongs of the Kalain test for good faith were

uncontroverted; nevertheless, the appellate court found a lack of good faith solely on a

finding the appellant failed to rationally evaluate his risk.
Delaware County, Case No. 15CAE060046, 15CAE090073                                       12


       {¶40} On June 24, 2014, after completion of discovery and the submission of all

of Appellees’ expert reports on liability and damages, Appellees made an initial demand

of $425,295.66, which represented one-third of Appellant’s assets. Appellant responded

with an offer of $20,000. The parties engaged in mediation prior to trial. Counsel for

Appellees advised counsel for Appellant Appellees were willing to accept $300,000, to

resolve all claims against Appellant. Appellant increased his initial offer to $40,000, and

indicated this was not his best and final offer. Appellant’s $40,000 offer upset Appellee

Brad Weaver and he left the room. At that point, the mediator acknowledged the parties

were too far apart and suggested the counsel for both parties talk.          Following the

mediation, Appellant made no further offers to settle the case.

       {¶41} As to the first factor relevant to whether Appellant made a good faith effort

to settle, neither party argues on appeal nor does the record demonstrate, Appellant did

not cooperate during discovery.

       {¶42} The second factor focuses on whether Appellant rationally evaluated the

risks and potential liability of going to trial. The trial court found Appellant “did not

rationally evaluate his risks and potential liability for negligent entrustment or negligent

hiring” August 24, 2015 Judgment Entry on Punitive Damages and Judgment Entry

Granting Attorney Fees and Judgment Entry Granting Plaintiffs’ Motion for Prejudgment

and Post Judgment Interest and Judgment Entry Granting Plaintiffs’ Motion to Tax Costs

at 4. The trial court noted Appellant “had a huge exposure with the number of real estate

holdings, held lien free”, and “[t]he settlement demand would have resulted in a loss of

value of a third of those holdings”. Id. The trial court added “[t]he evidence did show that

Kraft was given more freedom in use of the truck than merely raking leaves.” Id.
Delaware County, Case No. 15CAE060046, 15CAE090073                                       13


       {¶43} With respect to the third factor, the trial court found no evidence was

presented to establish Appellant attempted to unnecessarily delay the proceedings.

       {¶44} The fourth and final factor looks to whether Appellant, in fact, made a good

faith settlement offer or responded in good faith to an offer from Appellees. Appellees

reduced their initial demand by over $100,000. In response, Appellant raised his offer

$20,000. He made no further attempts to settle the matter before or during trial. The jury

ultimately awarded Appellees $2,683,455.00.

       {¶45} Although a lack of good-faith effort to settle is not demonstrated simply by

comparing the amount of a settlement offer to the verdict actually returned by a jury, a

substantial disparity between an offer and a verdict is one factor circumstantially

demonstrating whether a party made a good-faith offer to settle or the adverse party failed

to do so. Szitas v. Hill, 165 Ohio App.3d 439, 444, 2006-Ohio-687, citing Andre v. Case

Design, Inc., 154 Ohio App.3d 323, 2003-Ohio-4960, 797 N.E.2d 132, ¶ 15. Here,

Appellant’s final settlement offer of $40,000, was less than 2% of what the jury awarded

Appellees. The determinative factor is not the amount of Appellant’s final offer, but rather

the fact the offer was not objectively reasonable given the facts of this case.

       {¶46} Having reviewed the entire record, I conclude the trial court did not abuse

its discretion in determining Appellant did not make a good faith effort to settle the case

prior to trial thus granting the Appellees’ motion for prejudgment interest.

       {¶47} Accordingly, Appellant's fourth assignment of error is overruled.
Delaware County, Case No. 15CAE060046, 15CAE090073                             14


      {¶48} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, J.,

Wise, J. concurs separately,

Farmer, P.J. dissents.
Delaware County, Case No. 15CAE060046, 15CAE090073                                       15

Farmer, P.J., dissents

       {¶49} I respectfully dissent from the majority's application of the "two issue" rule

in determining Assignments of Error II and III. Although I have embraced the two-issue

rule in other cases, I would depart from the general application of the rule in this case.

       {¶50} I base my opinion upon the error of permitting Dr. Gray's testimony, as her

testimony constituted an opinion on an issue the jury was called upon to decide:

foreseeability. Foreseeability is a legal issue and is barred under Evid.R. 704. Dr. Gray's

testimony invaded an area specifically reserved for the jury.

       {¶51} Also, Mr. Muller's opinion did not qualify under Evid.R. 702, as he offered a

lay opinion in the area of corporate hiring and not individual hiring.

       {¶52} These two opinions, although given on the negligent hiring claim, were

egregious enough to color and bias the jury's decision.

       {¶53} I would grant Assignment of Errors II and III, reverse the jury's verdict, and

remand the matter for a new trial.
Delaware County, Case No. 15CAE060046, 15CAE090073                                    16

Wise, J., concurring

      {¶54} I concur with the majority’s disposition of appellant’s assignments of error.

I write separately to acknowledge the dissent’s view that in certain cases, the evidence

could be so prejudicial on one cause of action so as to effect the judgment and/or damage

award on another cause of action. However, I do not find such to be the case in the cause

sub judice.
