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Faber v. Metalweld8/13/1992
PATTON, Judge.
This is an appeal from the entry of summary judgment entered by the Cuyahoga County Court of Common Pleas in favor of defendant-appellee Metalweld, Inc. ("Metalweld") on a wrongful death complaint filed by Sandra J. Faber, administrator of the estate of William Faber, deceased ("Faber"). The trial court determined that Metalweld was entitled to summary judgment because their employee, Nicholas Kaufman, was not acting within the scope of his employment at the time of the accident with decedent Faber.
Metalweld is a subcontractor involved in the painting of the Perry Nuclear Power Plant which is owned by the Cleveland Electric Illuminating Company ("CEI"). Kaufman was employed as a painter by Metalweld. As an employee of Metalweld, Kaufman was responsible for preparing and painting surfaces inside the Perry Nuclear Power Plant. The decedent was employed as a crane operator by the R.J. Frazier Company, who was also performing subcontracting work at the Perry Nuclear Power Plant.
Pursuant to the National Industrial Maintenance Agreement, the employees of all contractors working at the Perry Nuclear Power Plant were required to be present at their job site when their shifts began. In order to meet this requirement, all employees were required to arrive and check in at the facility six minutes prior to the commencement of their scheduled shift. Additionally, pursuant to the agreement, each employee was permitted to leave his job site six minutes prior to the end of the shift.
On May 5, 1985, at approximately 11:55 p.m., the decedent checked out and proceeded to his car in the employee parking lot. The decedent left thsemployee parking lot and traveled down the access road toward the main gate. The access road was owned by CEI and provided the only means for employees to enter or exit the nuclear plant.
While traveling down the access road the decedent was killed in an automobile accident which occurred approximately one hundred ten feet from the main gate and public highway. The decedent was killed when his car was struck by Kaufman, who was en route to work.
On January 13, 1987, Faber filed a complaint alleging that Metalweld was vicariously liable for the negligence of its employee Kaufman. Metalweld filed a timely answer denying liability. Thereafter, Metalweld moved for summary judgment, contending that no master-servant relationship existed between Kaufman and Metalweld at the time of the accident. Faber filed a timely response to this motion, asserting that Kaufman was acting in the course and scope of his employment with Metalweld at the time of the accident. The trial court subsequently granted Metalweld's motion for summary judgment on November 20, 1990. The instant appeal followed.
On appeal, Faber raises two related assignments of error. They provide:
"I. The trial court committed reversible error by misapplying the Boch v. New York Life Insurance Co. [(1964), 175 Ohio St. 458, 26 O.O.2d 47, 196 N.E.2d 90] standards for determining the factual existence of a master-servant relationship between appellee and the alleged tortfeasor, Nicholas Kaufman, for purposes of determining appellee's liability under the doctrine of respondeat superior.
"II. The trial court committed reversible error by refusing to apply the 'zone of employment' standard associated with workers' compensation cases as part of its determination of the existence of a master-servant relationship between appellee and the alleged tortfeasor, Nicholas Kaufman."
In the assignments of error, Faber argues that Kaufman was acting within the scope of his employment with Metalwel
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