[Cite as Evans v. Thrasher, 2013-Ohio-4776.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DERECO EVANS, : APPEAL NO. C-120783 TRIAL NO. A-1101017 Plaintiff-Appellant, : O P I N I O N. vs. :
CHAD THRASHER, et al., :
Defendants, :
and :
UNIVERSITY HOSPITAL, :
QUEST DIAGNOSTICS : INCORPORATED,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 30, 2013
The Blaine Law Firm, LLC, and Nadia Blaine, for Plaintiff-Appellant,
Vorys, Sater, Seymour and Pease, LLP, Victor A. Walton, Jr., and Joseph Brunner, and Graydon Head & Ritchie, Julie Pugh and Bruce Petrie, Jr., for Defendant- Appellee University Hospital,
JonesPassodelis, PLLC, and Constantine J. Passodelis, for Defendant-Appellee Quest Diagnostics Incorporated.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Plaintiff-appellant Dereco Evans appeals a judgment of the Hamilton
County Court of Common Pleas granting a motion to dismiss filed by defendant-
appellee University Hospital and a motion for summary judgment filed by
defendant-appellee Quest Diagnostics Incorporated (“Quest Diagnostics”). We find
no merit in Evans’s five assignments of error, and we affirm the trial court’s
judgment.
I. Factual Background
{¶2} The record shows that Evans was admitted to University Hospital
after suffering a gunshot wound to his leg. He underwent emergency surgery, which
left him incapacitated and confined to a hospital bed. Because his assailant was still
at large, he was placed on a restricted floor, with heightened security and limited
access.
{¶3} Chad Thrasher worked at University Hospital as a phlebotomist.
While Evans was confined to his hospital bed and unable to move, Thrasher, dressed
in women’s clothing, entered Evans’s room and sexually assaulted him.
{¶4} Evans filed a complaint alleging numerous causes of action against
Thrasher, University Hospital, Quest Diagnostics, and several other defendants. He
alleged that Quest Diagnostics had provided diagnostic and laboratory services to
University Hospital under a contract between the parties and that Quest Diagnostics
had employed Thrasher.
{¶5} Thrasher was convicted of gross sexual imposition, and Evans
eventually obtained a default judgment against him. Both University Hospital and
Quest Diagnostics filed Civ.R. 12(B)(6) motions to dismiss. The trial court granted
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University Hospital’s motion, but overruled Quest Diagnostics’. Subsequently, the
court granted Quest Diagnostics’ motion for summary judgment. This appeal
followed.
II. Liability of University Hospital
{¶6} We address Evans’s first two assignments of error out of order. In his
second assignment of error, he contends that the trial court erred in granting
University Hospital’s motion to dismiss. He argues that the court improperly found
that University Hospital was not subject to the common pleas court’s jurisdiction and
that the action should have been brought in the court of claims even though the
hospital is a private entity. While we agree that the common pleas court had
jurisdiction over University Hospital, we ultimately find that this assignment of error
is not well taken.
{¶7} The record shows that University Hospital originally filed a motion to
dismiss under Civ.R. 12(B)(1) in which it contended that the Court of Claims had
exclusive jurisdiction over it since it was an instrumentality of the state of Ohio. See
R.C. 2743.01(A); R.C. 2743.03(A); Boggs v. State, 8 Ohio St.3d 15, 16-17; 455 N.E.2d
1286 (1983); Collins v. Univ. of Cincinnati, 3 Ohio App.3d 183, 184, 444 N.E.2d 459
(1st Dist.1981). It later withdrew that motion, stating that it is “not a State Entity.”
{¶8} Subsequently, University Hospital filed a motion to dismiss the two
negligence counts against it under Civ.R. 12(B)(6) for failure to state a claim upon
which relief can be granted. It argued that nothing in Evans’s complaint showed that
Thrasher’s conduct was foreseeable.
{¶9} In ruling on the motion to dismiss, the trial court’s written decision
stated that it was granting the motion because Evans had had failed to state a claim
against University Hospital upon which relief could be granted. But the court went
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on to state that “I found above that the claims against University Hospital [and two
other defendants] were dismissed. Even if they were not, the Attorney General is
correct that any claims against these defendants should have been brought in the
Court of Claims.”
{¶10} The court then journalized two entries. One stated that it was
granting University Hospital’s motion to dismiss because any claims against it
should have been brought in the Court of Claims. The other stated that it was
granting its motion to dismiss the two negligence counts against University Hospital
raised in the complaint.
{¶11} The court’s statements to the effect that the action against University
Hospital should have been filed in the Court of Claims were erroneous given that the
hospital is a private entity and not an instrumentality of the state. Nevertheless, the
record shows that the court also held that the complaint failed to state a claim upon
which relief could be granted against University Hospital. A reviewing court must
affirm a trial court’s judgment if it finds any valid grounds to support it. Courage v.
Cincinnati Ins. Co., 8th Dist. Cuyahoga No. 82499, 2003-Ohio-6332, ¶ 9; Thatcher
v. Good Will Industries of Akron, 117 Ohio App.3d 525, 532, 690 N.E.2d 1320 (9th
Dist.1997). Because we hold that the trial court properly granted University
Hospital’s motion to dismiss for failure to state a claim, we overrule Evans’s second
assignment of error.
{¶12} In his first assignment of error, Evans contends that the trial court
erred in granting University Hospital’s motion to dismiss. He argues that he pleaded
sufficient facts to state a cause of action against University Hospital for negligence.
This assignment of error is not well taken.
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{¶13} A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the
complaint. In ruling on such a motion, the trial court must take all of the allegations
in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d
753 (1988); Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-090747, 2010-
Ohio-3963, ¶ 11. It may dismiss a complaint on a Civ.R. 12(B)(6) motion only when
the plaintiff can prove no set of facts that would entitle the plaintiff to relief. O’Brien
v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus; Mann at ¶ 11. The court should not rely on evidence outside of the
pleadings, but it may consider materials that are referred to or incorporated into the
complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d
545, 548, 605 N.E.2d 378 (1992); Mann at ¶ 11.
{¶14} In count three of his complaint, Evans alleged that University
Hospital “had a duty, and assumed that duty by placing Dereco Evans on a restricted
floor, to assure that he was protected and safe. University Hospital breached that
duty by failing to properly investigate Chad Thrasher and allowing Chad Thrasher to
have access to Dereco Evans.” He raised similar claims in count six, in which he
alleged that University Hospital “had a duty, and accepted that duty by placing
Dereco Evans on a restricted floor, to protect Dereco Evans while at University
Hospital.” He further alleged that University Hospital’s breach of that duty resulted
in harm to him.
{¶15} To support a claim of negligence, the plaintiff must show the
existence of a duty, a breach of that duty, and an injury proximately resulting from
the breach. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 76, 472 N.E.2d
707 (1984); Vonderhaar v. Cincinnati, 191 Ohio App.3d 229, 2010-Ohio-6289, 945
5 OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 603, ¶ 19 (1st Dist.). A business owner has a duty to warn or protect its
business invitees from criminal acts of third parties when the business owner knows
or should know that there is a substantial risk of harm to its invitees on the premises
in the possession and control of the business owner. Simpson v. Big Bear Stores Co.,
73 Ohio St.3d 130, 652 N.E.2d 702 (1995), syllabus.
{¶16} A duty exists where a risk is reasonably foreseeable. Menifee at 77;
Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 234, 776 N.E.2d
1126 (1st Dist.2002). The foreseeability of a criminal act depends on the knowledge
of the business owner. Whisman at 234. Generally, the occurrence of prior similar
acts suggests that the danger was foreseeable. Id.
{¶17} Evans did not allege any facts in his complaint to support the
conclusion that Thrasher’s conduct was foreseeable. He alleged no similar prior
conduct by Thrasher that would have allowed University Hospital to anticipate his
criminal acts against Evans. He did not allege that Thrasher had a prior criminal
record, that University Hospital had failed to conduct a background check, or that
Thrasher had ever done anything that would have alerted University Hospital that he
could potentially sexually assault a patient. Evans alleged only that Thrasher “was
allowed access to Dereco Evans’ hospital room while dressed as a female even though
Chad Thrasher is male.” That allegation was not sufficient to show that University
Hospital should have known that Thrasher would sexually assault a patient.
{¶18} Similarly, Evans contends that the fact that he was on a restricted
floor with limited access showed that University Hospital had a duty to protect him.
A reasonable inference from those facts is that Evans needed to be protected from
those who shot him. They do not support the inference that a sexual assault by
medical personnel working in the hospital was foreseeable.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Evans further argues in his brief that Thrasher worked for University
Hospital. Therefore, the hospital could be held liable for his actions under the
doctrine of respondeat superior. See Comer v. Risko, 106 Ohio St.3d 185, 2005-
Ohio-4559, 833 N.E.2d 712, ¶ 12; Williams v. First United Church of Christ, 40 Ohio
App.2d 187, 189-190, 318 N.E.2d 562 (1st Dist.1973). First, we note that Evans
alleged in his complaint that Thrasher was an employee of Quest Diagnostics, not
University Hospital.
{¶20} But even if we construe the allegations of the complaint to support the
conclusion that University Hospital had the right to control Thrasher’s actions, the
principal can only be liable for the intentional torts of the agent if the tortious
conduct was committed within the scope of his or her employment. Thomas v.
Speedway Superamerica, LLC, 9th Dist. Wayne No. 06CA0004, 2006-Ohio-5068, ¶
17. For that type of act to be within the scope of employment, the behavior giving
rise to the tort must be calculated to facilitate or promote the business for which the
agent was employed. Byrd v. Faber, 57 Ohio St.3d 56, 58, 565 N.E.2d 584 (1991);
Thomas at ¶ 17.
{¶21} A sexual assault by an employee upon a patient would in no way
facilitate the hospital’s business. See Clifford v. Licking Baptist Church, 5th Dist.
Licking No. 09 CA 0082, 2010-Ohio-1464, ¶ 63-65; Taylor v. Doctors Hosp. (West),
21 Ohio App.3d 154, 156-157, 486 N.E.2d 1249 (10th Dist.1985). “[A]n intentional
and willful attack committed by an agent or employee, to vent his own spleen or
malevolence against the injured person, is a clear departure from his employment
and his principal or employer is not responsible therefor.” Byrd at 59, quoting
Vrabel v. Acri, 156 Ohio St. 467, 474, 103 N.E.2d 564 (1952).
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Even if University Hospital owed Evans a duty, any breach of that
duty was not the proximate cause of Evans’s injuries. When a third person’s criminal
act intervenes between a defendant’s conduct and a plaintiff’s injuries, the
defendant’s negligence is the proximate cause of the plaintiff’s injuries only where
the defendant could have reasonably foreseen the intervening act. Taylor v.
Webster, 12 Ohio St.2d 53, 56, 231 N.E.2d 870 (1967); Feichtner v. Ohio Dept. of
Transp., 114 Ohio App.3d 346, 359, 683 N.E.2d 112 (10th Dist.1995). But a
defendant is no longer liable if the third party’s criminal acts were unforeseeable.
Thomas at ¶ 15. Again, Evans has not alleged any facts supporting the inference that
Thrasher’s criminal acts were foreseeable.
{¶23} Consequently, we hold that the trial court did not err in granting
University Hospital’s Civ.R. 12(B)(6) motion to dismiss for failure to state a claim
upon which relief could be granted. We overrule Evans’s first assignment of error.
III. Liability of Quest Diagnostics
{¶24} In his third assignment of error, Evans contends that the trial court
erred in granting Quest Diagnostics’ motion for summary judgment. He argues that
material issues of fact exist regarding the dates of the contracts between Quest
Diagnostics and University Hospital, and whether Quest Diagnostics had the right to
control and supervise Thrasher in his duties as a phlebotomist. This assignment of
error is not well taken.
{¶25} An appellate court reviews a trial court’s ruling on a motion for
summary judgment de novo. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996); Riverhills Healthcare, Inc. v. Guo, 1st Dist.
Hamilton No. C-100781, 2011-Ohio-4359, ¶ 12. Summary judgment is appropriate if
(1) no genuine issue of material fact exists for trial, (2) the moving party is entitled to
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judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, who is entitled to
have the evidence construed most strongly in his or her favor. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Riverhills at ¶ 12.
{¶26} Evans raised claims against Quest Diagnostics for negligent hiring
and negligent supervision. To prevail on a claim for negligent hiring, supervision or
retention of an employee by an employer, the plaintiff must show: (1) the existence
of an employment relationship; (2) the employee’s incompetence; (3) the employer’s
actual or constructive knowledge of the employee’s incompetence; (4) the employee’s
act or omission caused the plaintiff’s injuries; and (5) the employer’s negligence in
hiring or retaining the employee was the proximate cause of the plaintiff’s injuries.
Ruta v. Breckenridge-Remy Corp., 69 Ohio St.2d 66, 69, 430 N.E.2d 935 (1982);
Steppe v. Kmart Stores, 136 Ohio App.3d 454, 737 N.E.2d 58 (8th Dist.1999).
{¶27} The record shows that Evans failed to present evidence to prove the
first element of the tort, the existence of an employment relationship. Evan claims
that the sole basis for Quest Diagnostics’ motion for summary judgment was the
termination of its contracts with University Hospital four days before Thrasher was
allegedly hired, and that the only factual dispute between the parties was the date of
the contracts between Quest Diagnostics and University Hospital. The record shows
otherwise.
{¶28} Quest Diagnostics denied having an agreement with, or that it
provided any services to, University Hospital on the date that Thrasher assaulted
Evans. But it also argued from the case’s inception, and presented numerous
affidavits showing, that Thrasher had never been its employee, and that it had never
been responsible for him in any way. In fact, it presented Thrasher’s affidavit in
9 OHIO FIRST DISTRICT COURT OF APPEALS
which he acknowledged that he had never been employed, managed, supervised or
controlled by Quest Diagnostics. To the contrary, he stated that he had been
employed at University Hospital through a temporary agency at the time of the
incident.
{¶29} Evans presented no evidence to the contrary. Once the party moving
for summary judgment presents evidence that demonstrates that the nommoving
party has no evidence to support the nonmoving party’s claims, the nonmoving party
has a reciprocal burden to set forth specific facts showing that a genuine issue of fact
exists for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996);
Stinespring v. Natorp Garden Stores, Inc., 127 Ohio App.3d 213, 216, 711 N.E.2d
1104 (1st Dist.1998). Evans failed to meet that burden.
{¶30} Evans argues extensively that he was prevented from presenting
evidence showing that Quest Diagnostics continued to receive substantial payments
from University Hospital because the trial court granted Quest Diagnostics’ motion
for a protection order on the basis that the payments were trade secrets. Evans
contends that those payments showed that the contractual relationship between
Quest Diagnostics and University Hospital continued even though Quest Diagnostics
argued that the contract had ended prior to the assault. Even if the payments
showed that Quest Diagnostics was still providing diagnostic and laboratory services
on the date of the assault, they do not show that Thrasher had a relationship with
Quest Diagnostics and, therefore, they do not create an issue of material fact for trial.
Because Thrasher was not an employee of Quest Diagnostics, it could not be held
liable for negligent hiring or supervision.
{¶31} Even if Quest Diagnostics had been Thrasher’s employer, Evans did
not present evidence to show that it had actual or constructive knowledge of
10 OHIO FIRST DISTRICT COURT OF APPEALS
Thrasher’s criminal propensities. Quest Diagnostics’ liability depended on a showing
that Thrasher’s sexual assault was reasonably foreseeable. Wagoner v. United Dairy
Farmers, Inc., 1st Dist. Hamilton No. C-990767, 2000 Ohio App. LEXIS 5320, *4
(Nov. 17, 2000). Thrasher’s sexual assault on Evans was foreseeable only if Quest
Diagnostics knew or should have known of his propensity to engage in similar
tortious or criminal conduct. Rozzi v. Star Personnel Serv., Inc., 12th Dist. Butler
No. CA2006-07-162, 2007-Ohio-2555, ¶ 10; Wagoner at *5-6; Steppe, 136 Ohio
App.3d at 466, 737 N.E.2d 58. “In the absence of a ‘known criminal propensity,’ a
criminal act by an employee is not reasonably foreseeable.” Steppe, 136 Ohio App.3d
at 466, 737 N.E.2d 58.
{¶32} The only facts that Evans presented were that Thrasher was dressed
as a woman and that Evans was on a protected floor with heightened security. These
facts were insufficient to show that Thrasher’s conduct was foreseeable.
Consequently, even if Evans could have proved that an agency relationship existed
between Quest Diagnostics and Thrasher, Quest Diagnostics still would not be liable
for negligent hiring or supervision.
{¶33} We find no issues of material fact. Construing the evidence most
strongly in Evans’s favor, reasonable minds could come to but one conclusion—that
Quest Diagnostics was not negligent in hiring or supervising Thrasher. Therefore, it
was entitled to judgment as a matter of law, and the trial court did not err in granting
its motion for summary judgment. We overrule Evans’s third assignment of error.
IV. Discovery Issues
{¶34} In his fourth assignment of error, Evans contends that the trial court
abused its discretion when it failed to rule on his pending motions for contempt and
to compel discovery before ruling on Quest Diagnostics’ motion for summary
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judgment. He argues that he was prevented from obtaining information vital to
proving his case. This assignment of error is not well taken.
{¶35} An appellate court reviews a trial court’s decision in discovery matters
under an abuse-of-discretion standard. Mauzy v. Kelly Serv., Inc., 75 Ohio St.3d
578, 592, 664 N.E.2d 1272 (1996): University Hosp. v. Campbell, 1st Dist. Hamilton
No. C-110285, 2012-Ohio-1909, ¶ 8. But the trial court’s discretion is not unlimited.
“Although unusual, appellate courts will reverse a discovery order ‘when the trial
court has erroneously denied or limited discovery.’ ” Mauzy at 592, quoting 8
Wright, Miller & Marcus, Federal Practice and Procedure, Section 2006, 92 (2d
Ed.1994).
{¶36} Evans served interrogatories on Quest Diagnostics, which objected to
most of them. He filed a motion to compel, which the trial court granted.
Subsequently, Quest Diagnostics served answers to the interrogatories, but it
continued to object to a number of the questions. Evans than filed a motion asking
the court to hold Quest Diagnostics in contempt. The trial court granted summary
judgment in favor of Quest Diagnostics on the basis that “there is no evidence in any
manner to show that they controlled, employed or supervised Chad Thrasher and the
activities” on the day in question. It then overruled Evans’s motion for contempt.
{¶37} We cannot hold that the trial court’s decision was so unreasonable,
arbitrary or unconscionable as to connote an abuse of discretion. See Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Sherman v. Sherman, 1st
Dist. Hamilton No. C-120691, 2013-Ohio-3501, ¶ 12. The questions in the
interrogatories were aimed at determining the dates and the terms of the contracts
between University Hospital and Quest Diagnostics. But that information was not
relevant given the evidence that Thrasher had no relationship whatsoever with Quest
12 OHIO FIRST DISTRICT COURT OF APPEALS
Diagnostics. At the hearing on the issue, Evans even acknowledged that Thrasher
had worked f0r a temporary agency.
{¶38} Further, Evans had had substantial time to conduct discovery before
the trial court granted Quest Diagnostics’ motion for summary judgment. He
conducted very little discovery other than serving the interrogatories on Quest
Diagnostics. Quest Diagnostics presented a number of affidavits providing evidence
that Thrasher had never worked for and was never controlled or supervised by Quest
Diagnostics, yet Evans never deposed any of those witnesses. If Evans needed more
time to conduct discovery, the proper procedure would have been to file a motion for
a continuance under Civ.R. 56(F). See Anginoli v. Benenson Capital Co., 1st Dist.
Hamilton No. C-980811, 1999 Ohio App. LEXIS 6218, *6-8 (Dec. 23, 1999).
Consequently, we cannot hold that the trial court abused its discretion in overruling
Evans’s motion for contempt or in conducting discovery generally, and we overrule
his fourth assignment of error.
V. Alleged Bias and Prejudice
{¶39} Finally, in his fifth assignment of error, Evans contends that the trial
court erred in allowing its own bias and prejudice against Evans to influence its
decisions. He cites various instances of hostility shown to him by the trial judge
initially assigned to the case and then by a visiting judge, who was assigned to the
case after the first judge had recused himself because Evans had filed an affidavit of
bias and prejudice.
{¶40} First, the record does not show the alleged instances of hostility to
which Evans refers. Second, some of the claims relate to the judge initially assigned
to the case. But that judge recused himself, and Evans has not demonstrated how
any of those alleged instances of animosity prejudiced him.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} The other claims related to the conduct of the visiting judge. But
Evans did not file an affidavit of bias and prejudice against that judge with the Ohio
Supreme Court, which is the proper avenue of redress for a party that believes the
trial court is biased, and he cannot now raise the issue for the first time on appeal.
R.C. 2701.03; Battersby v. Avatar, Inc., 157 Ohio App.3d 648, 2004-Ohio-3324 813
N.E.2d 46, ¶ 18 (1st Dist.). Consequently, we overrule Evans’s fifth assignment of
error, and we affirm the trial court’s judgment.
Judgment affirmed.
H ILDEBRANDT , P.J., and F ISCHER , J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.