Moncol v. Board of Ed. of North Royalton School Dist.
| Decision Date | 12 July 1978 |
| Docket Number | No. 76-1246,76-1246 |
| Citation | 378 N.E.2d 155,55 Ohio St.2d 72,9 O.O.3d 75 |
| Parties | , 9 O.O.3d 75 MONCOL et al., Appellants, v. BOARD OF EDUCATION OF NORTH ROYALTON SCHOOL DISTRICT, Loder et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where there is no evidence that a master has been negligent other than through the imputation of the negligent conduct of his servant, based upon the doctrine of respondeat superior, as between the same parties, a judgment in favor of the servant on the merits renders invalid any judgment against the master.
On January 30, 1973, a fire occurred in a building located in North Royalton owned by the James W. Loder School Bus Company (the bus company). The building was occupied by two tenants Richard E. Moncol, d. b. a. Royalton Body and Fender Repair, and the Board of Education of North Royalton School District (the board). Each tenant possessed, under a month-to-month lease, about one-half of the structure, which was open and not divided by walls or partitions.
The board leased the premises for mechanical repair and maintenance of its school buses, and employed James W. Loder as a mechanic for its buses. Richard Grosser, who was under Loder's supervision, was also employed by the board and involved in the repair and maintenance of the school buses. On the day of the fire Loder, concluding that a school bus had broken down due to a foreign substance in the gas, told Grosser to drain its tank. The latter, having checked the fuel gauge, obtained a bucket and a wrench, and slid under the bus by means of a "creeper." Using his wrench, he removed the tank plug, and a gasoline mixture started to slowly drain into the bucket. Grosser then brushed the opening with his gloved hand to speed the flow of the mixture.
Almost immediately thereafter, the light bulb contained in the caged mechanic's lamp, which was used to illuminate the work area underneath the bus, broke and the gasoline fumes ignited. Grosser yelled "fire," pushed the bucket away, causing the mixture to pour onto the floor, and ran for a fire extinguisher. Upon hearing Grosser yell "fire," Loder stationed himself in front of the bus and sprayed the contents of an extinguisher at the fire under the bus.
There were two Royalton body shop employees, Dale Claridge and Thomas Douttiel, in the garage at the time of the fire. Both employees noticed Grosser under the bus draining the tank, heard the bulb pop, saw the fire and obtained a fire extinguisher. One extinguisher failed to operate and Claridge obtained another. Then, both began to spray the extinguisher onto the fire until they were driven from the building by the intensity of the fire which was later extinguished by the fire department.
Appellants herein, Alden C. Smith, II and Robert C. Wadsworth, who owned automobiles which were on the body shop premises, and State Automobile Mutual Insurance Company, which insured these same automobiles, together with Richard E. Moncol, who owned an "all terrain vehicle" which was also on the premises, instituted an action for money damages against the board of education, James W. Loder, the bus company and Richard Grosser based on the foregoing incident.
The board of education was dismissed at trial as a party defendant upon the grounds of sovereign immunity. The case proceeded against the remaining defendants. The trial court refused to grant a motion for a directed verdict made by the other defendants at the close of the plaintiffs' case and renewed at the close of all the evidence.
A jury verdict was returned against James W. Loder and the company, appellees herein, in the sum of.$19,000. The jury found against the plaintiffs, appellants herein, as to Richard Grosser. Judgment was entered thereon on June 11, 1975. Loder and the bus company appealed. There was no cross notice of appeal made by the plaintiffs.
Upon appeal the Court of Appeals found error in the failure of the trial court to direct verdicts for appellees, Loder and the company, reversed the judgment of the trial court and entered final judgment for those parties.
This cause is now before this court upon allowance of a motion to certify the record.
Paul Mancino, Jr., and Burt H. Sagen, Cleveland, for appellants.
Davis & Young and Martin J. Murphy, Cleveland, for appellees.
The Court of Appeals held that a directed verdict should have been granted appellees, James W. Loder and James W. Loder School Bus Company, by the trial court due to the failure of the appellants to produce evidence of negligence and proximate cause attributable to appellees.
Appellants theorized at trial that they had suffered a loss of property, that someone was negligent in causing a fire and that the loss of their property occurring as a consequence of that fire dictated a recovery against one or more of the numerous defendants joined in their cause of action. Since a jury verdict was returned against only appellees James W. Loder and the Loder School Bus Company and the Court of Appeals found no evidence in the record of negligence by either, the postulated liability of those appellees is our only concern.
The bus company, owner of the building in which the fire occurred, would only be liable if James Loder, assuming his negligent conduct, was working as an employee of the bus company at the time of the accident, or if the bus company was negligent by reason of its breach of a duty to provide effective fire extinguishers or in providing defective tools and light containers which foreseeably caused the appellants' losses.
It is clear from the record that Loder was not working as an employee of the bus company at the time, but rather as an employee of the school board. The school board hired him to repair its school buses. At the time of the fire, Loder was overseeing the repair of one of the school board's buses, and thus properly working within the scope of his employment. In view of this conclusion, the fact that Loder is president and a shareholder in the bus company is irrelevant.
There was no evidence introduced at trial tending to show that the fire extinguishers were defective or caused the losses to appellants. There was no testimony that the failure of the one extinguisher to function was due to faulty equipment rather than improper operation by one of the body shop employees, Dale Claridge. There was no testimony that the tools and light containers provided by the bus company were defective and that that defect predictably caused the fire and resulting damages. There was no evidence at all linking the actions or inactions of the company to the causation of the fire or the damages suffered by the appellants.
The question remains, however, whether there was sufficient evidence to support the finding that the individual, James W. Loder, was negligent.
When determining the presence or absence of negligent conduct, it is necessary to examine (1) the existence of a duty owing to the plaintiffs; (2) a breach of that duty; and (3) proximate causation. Bennison v. Stillpass Transit Co. (1966), 5 Ohio St.2d 122, 214 N.E.2d 213; Baier v. Cleveland Ry. Co. (1937), 132 Ohio St. 388, 391, 8 N.E.2d 1.
James Loder clearly owed a duty of due care to the plaintiffs-appellants. The essential question is whether he breached that duty, given the attendant circumstances. Appellants, claiming there was an improper draining of the tank, have put forth three theories: (1) the tank should have been drained outside the building; (2) the container into which the gasoline mixture was drained was too shallow, and (3) the mechanic's lamp should have had a safety bulb.
Loder directed that the gas tank be drained, and it was thereafter drained inside the building. The evidence does not disclose that this was an uncommon activity for a repair garage or an unreasonable activity in this large concrete and steel building. There was no expert testimony on the standard procedures for the draining of gas tanks, which is not an area within the common knowledge of persons of average general information. Schwer v. New York, Chicago & St. Louis Rd. Co. (1954), 161 Ohio St. 15, 117 N.E.2d 696. There was some testimony by Dale Claridge concerning his procedure in draining the gas tanks on cars; but, standing alone, this testimony cannot be the foundation for a conclusion that a variation from his method was negligent conduct.
Appellants argue that the type of pan into which the gasoline mixture was drained was an improper one. Again there was no testimony offered to establish that in...
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