Ross v. Johnson

[Cite as Ross v. Johnson, 2019-Ohio-2849.]

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

LAURA J. ROSS C.A. No. 18CA011282

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
TRACEY L. JOHNSON, ET AL. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellees CASE No. 16CV188444

DECISION AND JOURNAL ENTRY

Dated: July 15, 2019

CARR, Judge.

{¶1} Appellant, Laura Ross, appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms.

I.

{¶2} This matter arises out of a physical altercation that occurred at Pudge’s Place &

Patio (“Pudge’s Place”), a bar in Elyria, Ohio. On January 19, 2015, Ross and Shelly Johns

entered Pudge’s Place and proceeded to order drinks. Ross and Johns were served their beers by

Tracey Johnson, the bartender working that afternoon. A short time later, Ross and Johns got

into a heated argument with Johnson about Johnson’s boyfriend. During the argument, Ross

pushed Johnson and made physical contact several other times. Johnson directed Ross and Johns

to leave the bar but the women refused to leave. Johnson placed a telephone call to Ginger

Sherrill and requested that Sherrill come to the bar to help resolve the situation. Ross went

behind the bar and reached for the phone. At one point, Ross struck Johnson in the face. In
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return, Johnson swung and struck Ross in the eye with a beer glass that she was holding in her

hand. The beer glass shattered. Ross suffered very serious injuries. The incident was captured

by a video surveillance system.

{¶3} On January 14, 2016, Ross filed a complaint against Johnson, Pudge’s Place, Inc.,

TMD Investments of Elyria, LLC. (“TMD”), and Sherrill. Ross asserted claims of battery and

negligence, as well as theories of vicarious liability. Johnson did not file an answer to the

complaint. Pudge’s Place filed an answer generally denying the allegations in the complaint.

Sherrill and TMD filed an answer along with counterclaims against Ross for frivolous conduct

and abuse of process.

{¶4} Thereafter, Pudge’s Place, Inc., TMD, and Sherrill filed a motion for summary

judgment on the claims in the complaint. Ross filed a brief in opposition to the motion for

summary judgment. Pudge’s Place, Inc., TMD, and Sherrill filed a reply brief in support of the

motion. On January 10, 2017, the trial court issued a decision granting the motion for summary

judgment in regard to TMD and Sherrill on the grounds that there was no basis for liability to be

imposed upon those defendants. The trial court denied the motion for summary judgment as it

pertained to Pudge’s Place, Inc.

{¶5} After the trial court issued its summary judgment order, TMD and Sherrill

dismissed their counterclaims without prejudice. Ross successfully moved for default judgment

against Johnson. Pudge’s Place, Inc. confessed that it was vicariously liable for Johnson’s

actions. Pudge’s Place consented to a judgment against it in the amount of $330,000.

{¶6} On appeal, Ross raises one assignment of error.
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II.

ASSIGNMENT OF ERROR

THE LOWER COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENTS FOR THE APPELLEES GINGER A SHERRILL AND TMD
INVESTMENTS OF ELYRIA, LLC.

{¶7} In her sole assignment of error, Ross contends that the trial court erred in

awarding summary judgment to TMD and Sherrill. This Court disagrees.

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

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

{¶9} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

{¶10} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),

Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or
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denials of the moving party’s pleadings. Rather, the non-moving party has a reciprocal burden

of responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to

be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

Background

{¶11} In her complaint, Ross alleged that she was battered by Johnson who, at all

relevant times, was an “agent and/or employee” of Sherrill, TMD, and Pudge’s Place, Inc. Ross

alleged that Sherrill, TMD, and Pudge’s Place, Inc. authorized and ratified the battery. Ross

further alleged that Sherrill, TMD, and Pudge’s Place, Inc. were negligent in their failure to

exercise reasonable care to control Johnson, who was acting within the scope of her employment

when she struck Ross.

{¶12} On November 14, 2016, Sherrill and TMD filed a motion for summary judgment

that was supported by multiple exhibits, including an affidavit from Sherrill and a copy of a

purchase agreement for the bar in question. Sherrill and TMD maintained that while Ross was

initially an invitee at Pudge’s Place, she became a trespasser when she was asked to leave and

refused to do so. The movants further stressed that it was Ross who played the role of the

aggressor during the incident. With respect to vicarious liability, Sherrill and TMD presented

evidence that on the date of the incident, January 19, 2015, Johnson was not employed by either

Sherrill or TMD. Instead, Johnson was an employee of Pudge’s Place, Inc., the entity that

owned the bar. TMD and Pudge’s Place, Inc. subsequently executed a purchase agreement on

January 21, 2015, whereby TMD, and its sole member, Sherrill, bought the business. Sherrill

and TMD maintained that TMD was not liable because it had not yet become owner of the bar at

the time the incident occurred and it had no control over Johnson. Sherrill and TMD further
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maintained that there was no basis for liability against Sherrill, as the sole member of TMD,

because TMD had not yet taken possession of the business at the time of the incident.

{¶13} In responding to the motion, Ross maintained that Johnson was employed by

Pudge’s Place, Inc., Sherrill, and TMD because Sherrill was effectively running the bar at the

time of the incident. Ross submitted numerous exhibits in support of her position, including a

number of depositions. Sherrill’s father, George Diederich, was the sole owner of Pudge’s Place,

Inc. Though she did not own any shares, Sherrill served as vice president of Pudge’s Place, Inc.,

until she resigned on January 16, 2015, three days before the incident. In the years preceding the

incident, Diederich was incarcerated for a period of time. After his release from prison in 2014,

Diederich did not actively resume his duties at the bar. During Diederich’s absence, Sherrill

managed many of the day-to-day operations. As compensation, Sherrill paid herself cash from

the proceeds of the business. Sherrill hired Johnson as a bartender. Johnson, in her deposition,

indicated that she considered Sherrill to be her “immediate superior” at the time of the incident.

Johnson stated that she called Sherrill as the incident was unfolding because she “needed help.”

At the time Johnson made the call, Sherrill was in a meeting with the owner of the vending

machines at the bar arranging for those machines to be used by TMD. TMD did not become the

owner of Pudge’s Place until January 21, 2015, when TMD purchased Pudge’s Place, Inc. Prior

to the incident, the bartenders at Pudge’s Place knew that Sherrill would be taking over the bar.

{¶14} On January 10, 2017, the trial court issued its order granting summary judgment

in favor of TMD and Sherrill. At the outset of its analysis, the trial court noted that all of Ross’s

claims were predicated on the notion that Johnson committed a tort. While the trial court

acknowledged that Ross was a trespasser who acted as the aggressor during the incident, it

ultimately determined that the question of whether Johnson responded with reasonable force
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during the altercation should be left to a jury. The trial court also concluded that there was a

question of fact regarding whether Johnson was acting within the scope of her employment when

she struck Ross. With respect to TMD and Sherrill, the trial court determined that “[t]he

uncontroverted facts in this matter establish that [TMD] did not come into possession of the bar

until January 21, 2015, two days after the incident giving rise to [Ross’s] claims[.]” Though

Ross argued that Sherrill was still managing the bar and that TMD could be held liable under the

doctrines of respondeat superior and the loaned servant, the trial court stressed that the

determinative issue was identifying the party for whom the servant was acting at the time they

committed the tort. The trial court concluded that in this case, Johnson was the servant of

Pudge’s Place, Inc., and there was no evidence that she was under the control of TMD or Sherrill

at the time of the incident. While Sherrill had served as a supervisor at the bar, she did so for the

benefit of Pudge’s Place, Inc., not TMD. The trial court further noted that there was no basis for

personal liability against Sherrill because there was no evidence that she was anything other than

an employee of Pudge’s Place, Inc. at the time of the incident.

Discussion

{¶15} On appeal, Ross maintains that the trial court erred in granting summary judgment

because TMD and Sherrill could be held liable under the doctrines of respondeat superior. Ross

asserts that Johnson was employed by Pudge’s Place, Inc., Sherrill, and TMD at the time of the

incident. Ross contends that there is a question of fact regarding whether Johnson was under

Sherrill’s control at the time of the incident, given that her father, George Diederich, had stepped

away from the day to day operations of Pudge’s Place, Inc. Ross further contends that Johnson

should be considered a loaned servant for liability purposes because Pudge’s Place, Inc. loaned

Johnson’s services to TMD and Sherrill.
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{¶16} “Generally, an employer or principal is vicariously liable for the torts of its

employees or agents under the doctrine of respondeat superior[.]” (Italics omitted.) Clark v.

Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438 (1994). “[I]n order for an

employer to be liable under the doctrine of respondeat superior, the tort of the employee must be

committed within the scope of employment.” Byrd v. Faber, 57 Ohio St.3d 56, 58 (1991).

“Moreover, where the tort is intentional, as in the case at bar, the behavior giving rise to the tort

must be ‘calculated to facilitate or promote the business for which the servant was employed * *

*.’” Id. quoting Little Miami R.R. Co. v. Wetmore, 19 Ohio St. 110, 132 (1869).

{¶17} Under the loaned servant doctrine, when one party lends an employee to another

party for a particular service, the loaned employee becomes the employee of the party to whom

his services have been loaned, although the employee remains in the general employ of that party

that loaned him. Ragone v. Vitali & Beltrami, Jr., Inc., 42 Ohio St.2d 161, 171 (1975). “Though

the employee remains the general servant of the party who has loaned him, ‘[s]ince the question

of liability is always predicated upon some specific act of the servant, it is not important whether

he remains the servant of the general employer as to matters generally, but whether, in

performing the act in question, he is acting in the business of and under the direction of the

general employer or that of the temporary employer.’” Medina v. Harold J. Becker Co., Inc.,

163 Ohio App.3d 832, 2005-Ohio-5438, ¶ 57 (1st Dist.), quoting Halkias v. Wilkoff Co., 141

Ohio St. 139, 152-153 (1943).

{¶18} The crux of Ross’s argument is that in addition to working for Pudge’s Place Inc.,

Johnson was under the control of TMD and Sherrill because they were also her employers at the

time she struck Ross with the beer glass.
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{¶19} A review of the summary judgment evidence reveals that Ross’s argument is

without merit as TMD and Sherrill were not Johnson’s employers at the time of the incident. It

is undisputed that TMD, and Sherrill as its sole member, did not purchase the bar from Pudge’s

Place, Inc. until January 21, 2015, two days after the incident. It is further undisputed that

Sherrill resigned her position as vice president of Pudge’s Place, Inc. on January 16, 2015, three

days prior to the incident.1 Though Sherrill had assumed managerial responsibilities during her

tenure as an employee of Pudge’s Place, she was neither Johnson’s general employer at the time

of the incident, nor was she Johnson’s temporary employer for the purposes of the loaned servant

doctrine. Sherrill was, at most, continuing to serve as an employee for Pudge’s Place, Inc. at the

time the incident occurred. While Ross emphasizes that Johnson was on the phone with Sherrill

during the altercation, Sherrill had already resigned her position as vice president of Pudge’s

Place, Inc. at that time and she had not yet executed the purchase agreement to buy the bar as the

sole member of TMD. Under these circumstances, the trial court did not err in concluding that

TMD and Sherrill were entitled to summary judgment.

{¶20} Ross’s assignment of error is overruled.

III.

{¶21} Ross’ assignment of error is overruled. The judgment of the Lorain County Court

of Common Pleas is affirmed.

Judgment affirmed.

1
The trial court acknowledged that Sherrill resigned her position as vice president of Pudge’s
Place, Inc., on January 16, 2015. While the trial court subsequently stated that Sherrill was
acting as an “employee/manager” at the time of the incident, it is apparent from the trial court’s
entry that it used this terminology simply to draw a contrast from acting as an “employer/owner.”
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There were reasonable grounds for this appeal.

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

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

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

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

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

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

Costs taxed to Appellant.

DONNA J. CARR
FOR THE COURT

HENSAL, J.
TEODOSIO, P.J.
CONCUR.

APPEARANCES:

MARK E. STEPHENSON, Attorney at Law, for Appellant.

MARK F. CRAIG, Attorney at Law, for Appellees.