Diemer v. Minute Men, Inc.

• Citation: 110 N.E.3d 152,2018 Ohio 1290
• Decision Date: 05 April 2018
• Docket Number: No. 105398,105398
• Parties: Andrew DIEMER, Executor, etc., Plaintiff–Appellant v. MINUTE MEN, INC., et al., Defendants–Appellees
• Court: United States Court of Appeals (Ohio)

110 N.E.3d 152
2018 Ohio 1290

Andrew DIEMER, Executor, etc., Plaintiff–Appellant
v.
MINUTE MEN, INC., et al., Defendants–Appellees

No. 105398

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: April 5, 2018

ATTORNEYS FOR APPELLANT Patrick J. Quallich, Christopher A. Holecek, Sarah Nemastil, Wegman, Hessler & Vanderburg, 6055 Rockside Woods Boulevard, Suite 200, Independence, Ohio 44131

ATTORNEYS FOR APPELLEES For Minute Men, Inc. David M. Ondrey, Thrasher Dinsmore & Dolan, 100 7th Avenue, Suite 150, Chardon, Ohio 44024, Albert A. Giuliani, 323 West Lakeside Avenue, Suite 300, Cleveland, Ohio 44113, Abigail A. Greiner, Colleen A. Mountcastle, D. John Travis, Gallagher Sharp, L.L.P., Bulkley Building, 6th & 7th Floors, 1501 Euclid Avenue, Cleveland, Ohio 44115, John Spellacy, John J. Spellacy & Associates, Assistant City Prosecutor, 5555 Powers Boulevard, Parma, Ohio 44129

For Cleveland Indians Baseball Company Limited Partnership J. Jaredd J. Flynn, Todd C. Hicks, Thrasher Dinsmore & Dolan, 100 7th Avenue, Suite 150, Chardon, Ohio 44024

For Ronald Hillman Ronald Hillman, pro se, Mansfield Correctional Institution, Inmate No. A672951, P.O. Box 788, Mansfield, Ohio 44901

BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.:

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{¶ 1} Appellant, Andrew Diemer, representative of the estate of Michaela Diemer, appeals the grant of summary judgment in favor of appellees, Minute Men, Inc. ("Minute Men"); and the Cleveland Indians Baseball Company, Inc., and the Cleveland Baseball Company Limited Partnership (collectively "CIB"). Andrew claims that the trial court erred in granting summary judgment because these companies owed a duty to Michaela, and the companies are independently liable for their negligent retention and promotion of Ronald Hillman to a supervisory position that he used to facilitate the rape and murder of Michaela. After a thorough review of the record and law, this court affirms in part, reverses in part, and remands.

I. Factual and Procedural History

{¶ 2} Minute Men, a staffing agency, was hired by CIB for facility cleaning services at Progressive Field. Minute Men provided cleanup crews and supervisors to clean the stands, fields, and a few other areas of Progressive Field after each game. During each home game, Dominic Sabetta, project manager for Minute Men, would receive a call from Thomas Evans, a supervisor for CIB, with the number of cleaners required. The number of workers depended on various factors including attendance and whether there were fireworks after the game. During the cleanup, Sabetta was in charge of these workers as the project manager. He had a managing assistant along with two supervisors that reported to him and his assistant. Two crew leaders reported to the supervisors and would often be tasked with specialized assignments such as cleaning the field or dugout of sunflower seed hulls.

{¶ 3} After Sabetta was informed of the number of cleaners required, he would open the office at Minute Men where people would gather in hopes of working in the clean up crew. He would select people and assign them numbers and badges. Those individuals would then report to the ballpark at a designated time and be placed into various cleanup crews. When there were not enough individuals that reported to the stadium, a Minute Men employee would sometimes drive to a nearby homeless shelter to recruit individuals to work.

{¶ 4} Ronald Hillman was living in a homeless shelter, and began working cleanup at the ballpark for Minute Men on opening day of the 2014 season. He showed himself to be a hard worker and was rewarded several times with a more desirable position running a backpack blower used during the cleanup process for CIB. At some point, a crew leader position became available. It is disputed who recommended Hillman for the position. Likely, Sabetta, or someone from Minute Men recommended Hillman for the position, and with Evans's approval, Hillman became a crew leader. He was issued a two-way radio and credentials identifying him as such.

{¶ 5} According to Evans's and Sabetta's testimony, a crew leader could not discipline a fellow cleaner, nor could a crew leader select which people would get chosen to work in the cleanup crew. Those decisions took place at Minute Men's office, rather than at the ballpark, and that responsibility was Sabetta's. However, a crew leader could select which individuals would work alongside the crew leader in a more desirable position. Also, the crew

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leaders could inform a supervisor or Sabetta that an individual was not working out, and that individual would not be invited back to work at the ballpark. Other testimony in the record indicates that crew leaders could select people to work for those individuals that just showed up at the gate during a game, rather than sign up at Minute Men's offices.

{¶ 6} Michaela was informed by a friend, Lisa Honeker, that she could make a little money by working in a cleanup crew at the ballpark. At the time, Michaela, a former nurse, was living in a homeless shelter. Michaela went with her friend to the ballpark the night of August 16, 2014, and sought to work in a cleanup crew. The two did not sign up at Minute Men's office. Honeker averred in an affidavit that Hillman selected Michaela to work in a crew where Hillman was the crew leader and directed her activities while working. According to Honeker, he showed particular interest in Michaela and was hitting on her. Michaela also worked the next night at the ballpark in a cleanup crew where she was again selected by Hillman to work in the park. After that shift, Hillman and Michaela left together in Michaela's car. The two spent some time at a downtown Cleveland casino the following night, and then Michaela was not seen again until her body was discovered in an abandoned house in Cleveland.

{¶ 7} Hillman was eventually arrested and charged with her rape and murder. In August 2015, he pled guilty to several charges, including rape and murder. He was sentenced to life in prison without the possibility of parole. Hillman had been previously convicted of rape and had been adjudicated a sexual predator prior to his employment with Minute Men.

{¶ 8} Andrew then filed suit against Hillman and Minute Men, asserting causes of action for wrongful death, survival, intentional and negligent infliction of emotional distress;¹ and claims of assault, battery, and false imprisonment against Hillman. CIB was added later in an amended complaint.

{¶ 9} The case proceeded through discovery and appellees filed motions for summary judgment. In separate entries issued January 18, 2017, the trial court granted the appellees' motions for summary judgment. In each journal entry, the court also dismissed Andrew's claims against Hillman without prejudice for failure to prosecute.² Andrew then filed the instant appeal, raising three errors for review:

I. The trial court erred, as a matter of law, in granting the motion for summary judgment filed by [Minute Men], as well as the motion for summary judgment filed by [CIB].

II. The trial court erred, as a matter of law, in failing to consider that Minute Men and [CIB] were directly and independently liable for their negligent retention and promotion of Hillman, separately from the doctrine of respondeat superior, which [Andrew] neither pleaded nor alleged in this case.

III. The trial court erred, as a matter of law, in holding that an employer, who knowingly retains and promotes to supervisor an adjudicated sexual predator with a history of committing violence against women, does not owe a duty of care to protect or warn a subordinate

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female employee from foreseeable harm posed by that supervisor after work hours.

II. Law and Analysis

A. Standard of Review

{¶ 10} Andrew's assigned errors all assert that the trial court erred in granting summary judgment and address only the negligence claims. Therefore, this court will address the negligence claims and the assigned errors together.

{¶ 11} Summary judgment under Civ.R. 56 provides for the expedited adjudication of matters where there is no material fact in dispute to be determined at trial. To obtain summary judgment, the moving party must show that "(1) there is no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶ 12} The moving party has the initial responsibility of establishing its entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). "[I]f the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails...