Leach v. Newport Yellow Cab, Inc.

• Decision Date: 22 August 1985
• Docket Number: No. C-3-82-077.,C-3-82-077.
• Citation: 628 F. Supp. 293
• Parties: Kathryn LEACH, et al., Plaintiffs, v. NEWPORT YELLOW CAB, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

628 F. Supp. 293

Kathryn LEACH, et al., Plaintiffs, v. NEWPORT YELLOW CAB, INC., et al., Defendants.

No. C-3-82-077.

United States District Court, S.D. Ohio, W.D.

August 22, 1985.

Barbara J. Pariente, West Palm Beach, Fla., Kenneth G. Rush, Springfield, Ohio, for plaintiffs.

Gary D. Bullock, Carl J. Stitch, Cincinnati, Ohio, for defendant Consolidated Rail Corp.

David Faulkner, Cincinnati, Ohio, for defendants Newport Yellow Cab, Inc. and Charles DeMoss.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT CONRAIL'S MOTION FOR SUMMARY JUDGMENT; DECISION AND ENTRY OVERRULING MOTION OF DEFENDANTS NEWPORT YELLOW CAB AND CHARLES DeMOSS FOR JUDGMENT ON THE PLEADINGS; CONFERENCE CALL SET

RICE, District Judge.

In this action, Plaintiff Kathryn Leach, by and through her legal guardian, Martin Leach, and Plaintiff Kevin Leach, by and through his legal guardian, Pamela Miller, seek compensation from Defendants Newport Yellow Cab, Inc. ("Newport Yellow Cab"), Charles DeMoss, and Consolidated Rail Corporation ("Conrail"). Plaintiff Kathryn Leach seeks damages for the injuries she suffered on August 6, 1980, when a car she was operating collided with a taxi cab owned by Defendant Newport Yellow Cab and operated by Defendant Charles DeMoss, Newport Yellow Cab's employee. Plaintiff Kevin Leach, the son of Kathryn Leach, seeks compensation for the loss of parental consortium occasioned by the severe and permanent injuries suffered by his mother.

Plaintiffs seek to recover damages from Defendant Conrail because at the time of the accident, Newport Yellow Cab was operating under a contract with Conrail by which Newport Yellow Cab would have cabs and vans, together with drivers, available to transport Conrail employees. At the time of the collision, Defendant DeMoss was returning from Bellefontaine, Ohio, having just completed transporting three Conrail employees to Bellefontaine from Sharonville, Ohio. Plaintiffs have three alternative theories upon which they rely to impose liability upon Conrail. First, they allege that there was a master-servant relationship between Conrail and Newport Yellow Cab and, as a consequence, Conrail is vicariously liable for Newport Yellow Cab's negligence. See Plaintiff's Amended Complaint (Doc. # 22), at ¶ 15. Second, Plaintiffs allege that Conrail was negligent in hiring Defendant Newport Yellow Cab. Id. at ¶¶ 16-17. Thirdly, Plaintiffs assert that Conrail is liable because it attempted to delegate to Newport Yellow Cab certain safety requirements imposed upon it by statute, rule or regulation and such safety requirements are non-delegable duties. Id. at ¶ 18.

Briefly, the collision occurred when the automobile that Kathryn Leach was driving collided with a van which was owned by Newport Yellow Cab and operated by Charles DeMoss. Prior to the accident, the van had experienced mechanical failure and had broken down. DeMoss was unable to drive it or to push it off the road. Kathryn Leach received severe injuries as a result of the accident and remains in a semi-comatose condition. As indicated above, at the time of the accident, DeMoss was returning from Bellefontaine, Ohio, after having transported employees of Conrail there from Sharonville, Ohio.

This cause is now before the Court on the motion of Defendant Conrail seeking summary judgment (Doc. # 44) and the motion of Defendants Newport Yellow Cab and Charles DeMoss, seeking a judgment on the pleadings on Kevin Leach's claim for relief (Doc. # 39).¹ Initially, the Court will discuss Defendant Conrail's Motion for Summary Judgment. The Court will then turn its attention to the motion of Defendants Newport Yellow Cab and Charles DeMoss for a judgment on the pleadings.

I. Defendant Conrail's Motion for Summary Judgment (Doc. #44).

In this motion, Defendant Conrail seeks a summary judgment on each of Plaintiffs' three alternative theories against it. Initially, the Court will review the standards that govern the grant or denial of a motion for summary judgment. Then the Court will turn to the specific issues raised by Defendant Conrail's Motion for Summary Judgment.

Under Rule 56(c), Fed.R.Civ.P., a motion for summary judgment can be sustained only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In Snider v. Creasy, 548 F.Supp. 601 (S.D. Ohio, 1982), Judge Rubin summarized this standard:

The summary judgment standard in this Circuit is a stringent one. Fed.R.Civ.P. 56(c) permits the Court to grant summary judgment only when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193, 1195 (6th Cir.1974). In deciding a motion for summary judgment, the Court must construe the evidence most favorably to the opposing party. Bohn Aluminum and Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962).

Id. at 602. See also, Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319 (6th Cir. 1983). Of course, if a motion for summary judgment is properly supported, the opposing party may not rest on its pleadings; rather, it must present affidavits or other evidence which set forth specific facts demonstrating the existence of a genuine issue of material fact. Rule 56(e), Fed.R.Civ.P.; Gillmore v. Proctor and Gamble Company, 417 F.2d 615 (6th Cir.1969); Bouldis v. U.S. Suzuki Motor Corp., supra. A summary judgment cannot be granted when there is a genuine issue about any material fact. County of Oakland v. City of Berkley, 742 F.2d 289, 297 (6th Cir.1984).

With these standards in mind, the Court now turns to the substantive issues raised by Conrail's Motion for Summary Judgment. As stated above, Plaintiffs have three alternative theories, upon which they would impose liability upon Conrail. First, Plaintiffs rely upon a theory of respondent superior and argue that a master-servant relationship existed between Conrail and Defendant Newport Yellow Cab. Second, Plaintiffs allege that Defendant Conrail was negligent in hiring Newport Yellow Cab. Third, Plaintiffs argue that certain non-delegable duties were imposed upon Conrail which could not be then delegated to Newport Yellow Cab by Conrail. The Court will address these theories in order.

(1) Plaintiffs' Respondeat Superior Argument in Favor of Conrail's Liability.

Conrail posits two independent arguments as to why it cannot be held liable under a theory of respondeat superior. First, Conrail argues that irrespective of the business relationship between Conrail and Newport Yellow Cab or Charles DeMoss, the accident occurred outside the scope of that relationship, after the completion of all services to Conrail. Alternatively, Conrail argues that Newport Yellow Cab was an independent contractor rather than its servant, and as a consequence, it cannot be held liable under a theory of respondeat superior.

Conrail's initial contention, that regardless of the business relationship between it and Newport Yellow Cab, it cannot be held liable because the accident occurred outside the scope of the relationship, arises because the accident occurred after DeMoss had concluded transporting Conrail's employees from Sharonville to Bellefontaine and he was on the return trip. In Simon v. McCullough Transfer Company, 155 Ohio St. 104, 98 N.E.2d 19 (1951), the Ohio Supreme Court held in the syllabus:

The common carrier of freight by motor vehicle who possesses a certificate issued under Part 2 of the Interstate Commerce Act and employs an independent contractor who does not possess such a certificate, to transport interstate freight in such independent contractor's truck carrying the permit plates of the common carrier, is not liable for the accident caused by the negligence of the independent contractor driving his own truck where, at the time of such accident, the independent contractor had entirely completed the transportation for the common carrier, had no further obligation or duty towards such common carrier and was driving the empty vehicle entirely under his own direction and control at a point distant from the location where he had completely unloaded the freight which he had been hired to transport.

The critical facts of Simon are analogous to the uncontested facts herein. In each instance, the accident occurred while the driver was driving his own vehicle after completing the deliveries on behalf of his employer and where the driver was under no further obligation to his employer. Herein, there is simply not a genuine issue of fact as to whether the accident occurred after DeMoss had dropped off the Conrail employees that he was transporting and while DeMoss was on his return trip. As the Court said in Kirtland v. Interstate Motor Freight System, 53 Ohio App. 459, 5 N.E.2d 707 (Lucas Cty. 1936):

The questions of whether DeVenney was an independent contractor, and, if so, the responsibility of Appellee, if any, arising therefrom, or whether he was a servant or agent of Appellee, are unimportant. Whatever may be contended in these respects, the uncontradicted evidence effectively shows that at the time of the collision, he was engaged in no business or service of Appellee, but was acting exclusively in his own behalf and for his own purposes.

53 Ohio App. at 461-62, 5 N.E.2d 707. See also, Wilcox v. TransAmerican Freight Lines, Inc., 371 F.2d 403 (6th Cir.), cert. denied, 387 U.S. 931, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967).

Based upon the uncontroverted facts of this case and the principles of law enunciated in Simon, Kirtland and Wilcox, the Court concludes that Conrail cannot be held liable for the tort of Newport Yellow Cab or DeMoss because they were not engaged in Conrail's business at the time the collision occurred. This is irrespective of whether Newport Yellow Cab and DeMoss are considered independent...