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Staten v. Ohio Exterminating Co.11/4/1997
BOWMAN, Judge.
Rommel Knox was employed as a service technician trainee by defendantappellee, the Ohio Exterminating Company, Inc., on June 18, 1994. After he was in the home of Patricia Jean Smith, along with his supervisor, Smith reported that her diamond ring had been stolen. Knox was asked to submit to a polygraph test by Ohio Exterminating, but he never returned to work and wasterminated shortly thereafter. A felony theft charge was filed against Knox on August 2, 1994. On January 4, 1995, Smith was shot and killed by William Anthony III, while Knox was present. Knox was convicted of the aggravated murder of Smith on August 11, 1996.
This case was initiated as an action for theft of the ring and for the wrongful death of Smith. Plaintiff-appellant, Ruth P. Staten, administrator of the estate of Smith, claims that Smith was killed to prevent her from testifying against Knox in the felony theft case against him. Appellee filed a motion for summary judgment. The trial court found a question of fact as to appellee's liability for negligent employment and damages resulting from the theft of the ring because the employment relationship between Knox and appellee was undisputed. The trial court further found that Knox's criminal record, which appellee should or could have known, raised questions of fact as to negligent hiring, that is, whether Knox was an appropriate person to perform exterminating services in private residences, as well as issues related to foreseeability and proximate cause. The trial court sustained the motion for summary judgment as to appellee's liability for the wrongful death of Smith caused by Knox. Appellant has appealed and raises the following assignment of error:
"The trial court erred when it granted summary judgment to Defendant-Appellee, Ohio Exterminating Co., Inc., on the issue of its liability for the death of Patricia Jean Smith, as this is a factual issue properly submitted to a jury, and DefendantAppellee is not entitled to judgment as a matter of law."
Appellant contends that the trial court erred in granting appellee summary judgment because an issue of material fact exists as to liability for Smith's death. In order to grant a motion for summary judgment, the court must find that, construing the evidence most strongly in favor of the nonmoving party, there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46; Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924.
Appellant alleged negligent hiring, which is recognized as a tort in Ohio. See Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. Restatement of the Law 2d, Agency (1958) 458, Section 213, provides as follows:
"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
"(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[J
"* * *
"(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control."
Comment d to that section provides:
"The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in
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