[Cite as Webb v. Higgs, 2012-Ohio-3291.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STEWART WEBB, et al. :
: Appellate Case No. 2011-CA-22
Plaintiff-Appellants :
: Trial Court Case No. 2008-CV-853
v. :
:
WILLIAM J. HIGGS, et al. : (Civil Appeal from
: (Common Pleas Court)
Defendant-Appellees :
:
...........
OPINION
Rendered on the 20th day of July, 2012.
...........
JOSE M. LOPEZ, Atty. Reg. #0019580, and CHRISTOPHER D. CLARK, Atty. Reg.
#0065132, Lopez, Severt & Pratt Co., L.P.A., 18 East Water Street, Troy, Ohio 45373
Attorneys for Plaintiff-Appellants, Stewart and Monica Webb
JAMES D. UTRECHT, Atty. Reg. #0015000, Utrecht & Young, LLC, 12 South Plum Street,
Troy, Ohio 45373
Attorney for Defendant-Appellee, Star-Ex, Inc.
LANCE K. OLIVER, Atty. Reg. #0085767, Lawrence & Russell, LLP, 5178 Wheelis Drive,
Memphis, Tennessee 38117
Attorney for Defendant-Appellee, Wal-Mart Stores, Inc.
TINA T. PECUSZOK, Atty. Reg. #0081535, 130 West Second Street, Suite 410, Dayton,
Ohio 45402
Attorney for William J. Higgs
.............
HALL, J.
{¶ 1} Stewart Webb appeals from the trial court’s entry of final judgment against
him on his respondeat superior claim against appellee Star Ex, Inc., and in his favor on a
negligence claim against appellee William Higgs.1
{¶ 2} Webb advances two assignments of error on appeal. First, he contends the
trial court erred in overruling his motion for a directed verdict on the respondeat superior
claim. Second, he asserts that the trial court erred in overruling his motion for judgment
notwithstanding the verdict or, alternatively, for a new trial on the same claim.
{¶ 3} The record reflects that Webb suffered serious injuries when a motorcycle he
was riding struck a pick-up truck being driven by Higgs. As a result of the accident, Webb
sued Higgs and Higgs’s employer, Star Ex. The trial court entered summary judgment for
Webb on the issue of Higgs’s negligence. The trial court denied cross motions for summary
judgment on the issue of Star Ex’s respondeat superior liability. The case proceeded to a May
2011 jury trial. At the conclusion of the evidence, Webb moved for a directed verdict on the
respondeat superior issue. The trial court denied the motion. The jury then rendered a verdict
in favor of Webb and against Higgs for $967,224.65. The jury rendered a verdict against
Webb, however, on his respondeat superior claim against Star Ex. In response to an
interrogatory, the jury found that Higgs was not acting in the scope of his employment with
Star Ex when he turned his truck in front of Webb’s approaching motorcycle. The trial court
later denied Webb’s motion for judgment notwithstanding the verdict and motion for a new
1
We note that Stuart Webb’s wife, Monica Webb, is also a named appellant in this case. She participated in the proceedings below
based on a derivative loss-of-consortium claim she asserted.
3
trial on the respondeat superior issue.
{¶ 4} On appeal, Webb has briefed both of his assignments of error together because
they raise the same issue, to wit: whether the trial court should have ruled, as a matter of law,
that Higgs was acting in the scope of his employment at the time of the accident. Webb argues
that the undisputed facts compel such a conclusion. Therefore, he contends the trial court erred
in overruling his motion for a directed verdict and motion for judgment notwithstanding the
verdict.
{¶ 5} It is well established that an employee who commits a tort must be acting in
the scope of his employment in order for his employer to be held liable under the doctrine of
respondeat superior. Grubb v. Security National Bank and Trust Co., 2d Dist. Clark No.
06-CA-1034, 2007-Ohio-1034, ¶ 9. Whether an employee is acting in the scope of his
employment ordinarily is a question of fact for a jury to decide. Id. at ¶ 10. The
scope-of-employment issue becomes a question of law, however, when reasonable minds can
reach only one conclusion. Id. This court has applied a three-part test, recognizing that “a
servant’s conduct is within the scope of his employment if it is of the kind 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.” Cooke v. Montgomery Cty., 158
Ohio App.3d 139, 2004-Ohio-3780, 814 N.E.2d 505, ¶20.
{¶ 6} “The standard of review for a motion for judgment notwithstanding the verdict
is the same as that for a directed verdict: construing the evidence most strongly in favor of the
party against whom the motion is directed, the motion must be overruled unless reasonable
minds could reach no other conclusion but that, under the applicable law, the movant is
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entitled to judgment in his favor.” Hemphill v. Dayton, 2d Dist. Montgomery No. 23782,
2011-Ohio-1613, ¶ 19. We review the trial court’s ruling de novo. Kademian v. Marger, 2d
Dist. Montgomery No. 24256, 2012-Ohio-962, ¶ 56.
{¶ 7} With the foregoing standards in mind, we turn to Webb’s argument that the
trial court should have granted him a directed verdict or a judgment notwithstanding the
verdict.2
Trial testimony established that Higgs was employed by Star Ex, a construction company, as a
member of a pipe crew. As part of his job, he worked at various construction sites. Star Ex
also required him to attend periodic safety meetings at its office in Covington, Ohio. On the
day in question, Higgs attended such a safety meeting early in the morning. Higgs and other
Star Ex employees received thirty minutes’ pay for the time they spent in the safety meeting.
The employees’ attendance at the meeting benefitted Star Ex by satisfying OSHA
requirements. At trial, Star Ex did not dispute that Higgs was acting in the scope of his
employment during the safety meeting.
{¶ 8} The parties’ dispute focused on whether Higgs was acting in the scope of his
employment when, immediately after the safety meeting, he drove his personal vehicle to his
assigned construction site, the Hawk’s Nest subdivision, to begin working there. The record
supports Webb’s claim that Star Ex directed Higgs to go to the Hawk’s Nest and expected him
to use his own vehicle. The record also supports Webb’s claim that upon arriving Star Ex
expected Higgs to park in what was referred to as the employees’ “staging area.”
2
Although Webb’s appellate brief mentions his motion for a new trial, his argument focuses on the motions for a directed verdict
and judgment notwithstanding the verdict.
[Cite as Webb v. Higgs, 2012-Ohio-3291.]
{¶ 9} Webb argues that “[d]riving to Hawk’s Nest was * * * an integral part of
Higgs’s job in that it was necessary for him to perform his work on the pipe crew.” Webb also
asserts that Higgs was promoting and furthering Star Ex’s business by “traveling to the
premises of his employer’s customer to perform his work (on the pipe crew).” Since the
accident occurred while Higgs was traveling to the Hawk’s Nest, Webb reasons that Higgs’
conduct was “of the kind he [was] employed to perform,” thereby satisfying the first element
of the test this court articulated in Cooke.
{¶ 10} With regard to the second element, Webb contends Higgs’s act of negligently
turning left occurred “substantially within the authorized limits of time and space” of his job.
This is so, Webb reasons, because Higgs drove straight to the Hawk’s Nest, as directed,
without deviating or departing. Although Star Ex presented evidence that Higgs was not paid
for his driving time, Webb nevertheless insists that the accident occurred substantially within
the authorized limits of time and space because it occurred shortly after the paid safety
meeting and on a road near the construction site.
{¶ 11} Finally, with regard to the third element, Webb contends Higgs’s act of
driving to the Hawk’s Nest was performed with an intent to serve Star Ex. In fact, Webb
asserts that the only reason Higgs drove to the Hawk’s Nest was to comply with Star Ex’s
direction. Webb argues that “Star Ex cannot instruct Higgs to drive directly and immediately
to Hawk’s Nest and then claim no benefit from him having followed those instructions.
Consequently, in the absence of any departure or deviation by Higgs from the instructions he
received from Star Ex, reasonable minds could only conclude Higgs’ act of driving to Hawk’s
nest was done with an intent to serve Star Ex.” Webb also asserts that Star Ex obtained a
“special benefit” from its employees driving their own cars to the work site by making them
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easily transferrable from one location to the next.
{¶ 12} Upon review, Webb has failed to persuade us that Higgs was acting in the
scope of his employment, as a matter of law, at the time of the accident. The record contains
testimony that Higgs and other Star Ex employees were not paid for the time spent traveling in
their own cars from the morning safety meeting to the construction site. They began receiving
pay only when they arrived at the construction site and began working. As Star Ex correctly
notes, “a work day is not necessarily continuous: it may have stopping and starting points,
both in time and space. It is exactly analogous to working a split shift with personal time
between the two periods of work.” (Appellee’s brief at 12-13).
{¶ 13} Although Star Ex directed Higgs to travel to the Hawk’s Nest, expected him to
use his own vehicle, and provided parking in the “staging area,” the evidence did not compel
the jury to find a benefit to the company as a result of Higgs’s commute other than making
himself available to work. “[A]s a matter of law, a master is not liable for the negligence of his
servant while the latter is driving to work at a fixed place of employment, where such driving
involves no special benefit to the master other than the making of the servant’s services
available to the master at the place where they are needed.” Boch v. New York Life Ins. Co.,
175 Ohio St. 458, 463, 196 N.E.2d 90 (1964); see also, Lipps v. Kash, 12th Dist. Clermont
No. 2007-05-060, 2008-Ohio-2628, ¶ 11 (“The evidence does not support that the use of
Kash’s personal vehicle to travel to the Aberdeen job site conferred any special benefit to
appellee. Instead, the vehicle simply served as the means by which Kash traveled to and from
the job site in order to make his services available to appellee at the place where they were
needed.”). This remains true “even though the employee may be reassigned to a different
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workplace monthly, weekly, or even daily. Despite periodic relocation of job sites, each
particular job site may constitute a fixed place of employment.” Patidar v. Tri-State
Renovations, Inc., 10th Dist. Franklin No. 06AP-212, 2006-Ohio-4631, ¶ 10.
{¶ 14} Based on the evidence presented, the jury reasonably could have concluded
that Higgs’s job duties did not commence until his arrival at the Hawk’s Nest construction site
and that he was not acting in the scope of his employment while traveling there. Webb’s
assignments of error are overruled, and the judgment of the Miami County Common Pleas
Court is affirmed.
.............
DONOVAN, J., concurs.
GRADY, P.J., concurs in judgment only.
Copies mailed to:
Jose M. Lopez
Christopher D. Clark
James D. Utrecht
Lance K. Oliver
Tina T. Pecuszok
Hon. Christopher Gee