Sitton v. Massage Odyssey, L.L.C.

2020 Ohio 4282, 158 N.E.3d 156

• Court: Ohio Court of Appeals
• Decided: September 2, 2020
• Docket: C-190578
• Status: Published

Opinion

[Cite as Sitton v. Massage Odyssey, L.L.C., 2020-Ohio-4282.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DINA SITTON, : APPEAL NO. C-190578 TRIAL NO. A-1804742 Plaintiff-Appellant, :

vs. O P I N I O N. : MASSAGE ODYSSEY, LLC,

and :

JOYCE M. MOOREHEAD, :

Defendants-Appellees, :

DORIAN WHITE, :

ALEXANDER MILLER, :

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 2, 2020

Thomas Law Offices, PLLC, and Louise C. Schneider, for Plaintiff-Appellant Dina Sitton,

Reminger Co. L.P.A. and Joseph W. Borchelt, for Defendants-Appellees Massage Odyssey, LLC, and Joyce Moorehead. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} In this case involving a sexual assault occurring during the midst of a

massage, the offending masseur was convicted for sexual imposition and held civilly

liable to his erstwhile client. The client now seeks to hold the massage parlor

accountable for the masseur’s sins, but we agree with the trial court that, under a

proper reading of Ohio law, the record reveals no basis for such liability. We

accordingly affirm the trial court’s judgment.

I.

{¶2} In November 2016, plaintiff-appellant Dina Sitton went for a

scheduled massage at defendant-appellee Massage Odyssey LLC’s (“Massage

Odyssey”) Winton Road location with massage therapist Alexander Miller.

Unfortunately, a supposedly relaxing experience took a more sinister turn when Mr.

Miller inappropriately touched Ms. Sitton during the massage. Immediately halting

the massage, Ms. Sitton left the parlor and reported the incident to the relevant

authorities. This ultimately led to an investigation and conviction of Mr. Miller for

sexual imposition under R.C. 2907.06.

{¶3} A lawsuit also ensued, with Ms. Sitton filing suit in August 2018 based

on this incident. The complaint featured claims against Massage Odyssey, its owners

Joyce Moorehead and Dorian White, and Mr. Miller, for claims of personal injury,

respondeat superior, and negligent hiring, retention, and supervision. After Mr.

Miller failed to answer the suit, the trial court entered a default judgment against

him, along with a subsequent award of damages to Ms. Sitton.

{¶4} The remaining defendants (although Mr. White was later dismissed

from the suit) eventually moved for summary judgment on the pending claims,

maintaining that no liability attached because Mr. Miller was an independent

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contractor, he did not act within the scope of his employment, and they challenged

the foreseeability of the sexual assault against Ms. Sitton. Although Ms. Sitton

opposed the motion, the trial court ultimately agreed with the defendants, granting

summary judgment in favor of Massage Odyssey and Ms. Moorehead. With respect

to the respondeat superior claim, the trial court found that Mr. Miller was an

independent contractor, but also determined that the sexual assault fell outside of

the scope of his employment (even if he should be categorized as an employee). As to

Ms. Sitton’s negligent hiring, supervision, and retention claims, the trial court saw a

lack of evidence on foreseeability, which precluded any liability.

{¶5} Ms. Sitton promptly appealed the decision and now raises two

assignments of error, challenging the grant of summary judgment as to the

respondeat superior and negligent hiring and supervision theories.

II.

{¶6} We review a summary judgment decision de novo, construing the

evidence in the light most favorable to the nonmovant. See Pitzer v. City of Blue Ash,

1st Dist. Hamilton No. C-180033, 2019-Ohio-2889, ¶ 5; 9900 Timbers Dr.

Investment LLC v. Nan Li, 1st Dist. Hamilton No. C-190224, 2020-Ohio-1473, ¶ 7.

A.

{¶7} Initially, the parties quibble over whether Ms. Sitton may properly

address the issue of Mr. Miller’s alleged independent contractor status on appeal, in

light of her failure to contest the evidence that Massage Odyssey presented

establishing his independent contractor status on summary judgment. A tortfeasor’s

status as an independent contractor assumes relevance here because if Mr. Miller

were deemed an independent contractor then Massage Odyssey would lack the

necessary control over him for the imposition of vicarious liability. See Comer v.

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Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 18 (noting that under

the doctrine of respondeat superior, a principal is not liable for torts of an

independent contractor over whom it retained no control). Surveying the evidence,

the trial court deemed Mr. Miller an independent contractor, but it also resolved the

issues of liability under respondeat superior by finding that he acted outside the

scope of employment in any event. As we conclude that no liability exists under the

circumstances of this case regardless of Mr. Miller’s possible status as an employee,

we assume without deciding that he acted as an employee for present purposes,

pretermitting any need to further ponder independent contractor status.

{¶8} In Ohio, the doctrine of respondeat superior can hold an employer or

principal vicariously liable for the tort of its employee or agent in certain

circumstances. Auer v. Paliath, 140 Ohio St.3d 276, 2014-Ohio-3632, 17 N.E.3d 561,

¶ 13. For liability purposes, the tort must be committed within the scope of

employment. Id. Moreover, in dealing with an intentional tort, as is at issue here, to

fall within the scope of employment, “the employee’s behavior must have been

calculated to facilitate or promote the employer’s business.” Linder v. Am. Natl. Ins.

Co., 155 Ohio App.3d 30, 2003-Ohio-5394, 798 N.E.2d 1190, ¶ 25 (1st Dist.); Byrd v.

Faber, 57 Ohio St.3d 56, 59, 565 N.E. 2d 584 (1991) (noting by way of example that

“an employer might be liable for an injury inflicted by an employee in the course of

removal of a patron”). In other words, a successful claim for respondeat superior

demonstrates that a principal-agent relationship exists (e.g., employer and

employee) and that the perpetrator committed a tortious act within the scope of

employment.

{¶9} Here, it is undisputed that Mr. Miller’s encounter with Ms. Sitton

resulted in a conviction for sexual imposition. Therefore, Ms. Sitton sought to

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impose vicarious liability on Massage Odyssey for the sexual assault that Mr. Miller

perpetrated against her during the massage. Ohio courts have recognized, however,

that an “intentional tort such as sexual assault or rape, ‘which in no way facilitates or

promotes the employer’s business, is so far outside the scope of employment that

employers should not be held liable for such acts under the doctrine of respondeat

superior or vicarious liability.’ ” Simpkins v. Grace Brethren Church of Delaware,

2014-Ohio-3465, 16 N.E.3d 687, ¶ 50 (5th Dist.), quoting Stephens v. A-Able Rents

Co., 101 Ohio App.3d 20, 30, 654 N.E.2d 1315 (8th Dist.1995) (noting distinctions

between theories of recovery based on respondeat superior versus negligent hiring,

supervision, and retention claims); Kingston Mound Manor I v. Keeton, 4th Dist.

Pickaway No. 18CA15, 2019-Ohio-3260, ¶ 25 (same); Byrd at 59 (no respondeat

superior liability for pastor’s nonconsensual sexual conduct with parishioner because

outside of the scope of employment). We reached a similar conclusion in finding

that a sexual assault by an employee upon a client of the employer’s business would

in no way facilitate that business, thereby precluding vicarious liability. Evans v.

Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-4776, ¶ 21 (alleged agent’s

sexual assault of a hospital’s patient in no way facilitated the hospital’s business).

{¶10} Faced with this authority, Ms. Sitton tries to stave off summary

judgment by insisting that the scope of employment issue remains a question of fact

for the jury. But calling something a question of fact does not obviate the need to

produce some evidence. Ms. Sitton simply presented no evidence that Massage

Odyssey somehow promoted sexual assault as part of its business, that it hired Mr.

Miller for the purpose of engaging in such activities, or anything else probative that

would suggest that he was actually acting in the scope of employment consistent with

the extant caselaw. See Byrd at 59-60 (doctrine of respondeat superior inapplicable

5 OHIO FIRST DISTRICT COURT OF APPEALS

where church “in no way promotes or advocates nonconsensual sexual conduct” and

did not hire the pastor to “rape, seduce, or otherwise physically assault members of

his congregation.”). Put another way, Mr. Miller’s actions could not have been

reasonably calculated to promote or facilitate Massage Odyssey’s business on the

record at hand, rendering his conduct outside the scope of employment. For those

reasons, we overrule Ms. Sitton’s first assignment of error.

B.

{¶11} Ms. Sitton’s more promising theory (featured in her second

assignment of error) involves her claims of “negligent hiring, training, and

supervision”—but these again falter on problems of proof. To prevail on such a

claim, a plaintiff must demonstrate:

(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.

Evans at ¶ 26, citing Ruta v. Breckenridge–Remy Corp., 69 Ohio St.2d 66, 69, 430

N.E.2d 935 (1982). Here, the viability of Ms. Sitton’s claims turned on the

foreseeability of Mr. Miller’s sexual assault. The record, however, is barren of any

such evidence—no prior related actions by Mr. Miller or awareness of such

proclivities by Massage Odyssey. See Wynne v. Duke Energy Ohio, Inc., 1st Dist.

Hamilton No. C-130781, 2014-Ohio-3464, ¶ 14 (“Entry of summary judgment is

appropriate against a party who fails to establish the existence of an element

essential to the party’s case upon which the party bears the burden of proof[.]”). In

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seeking to satisfy that requirement, Ms. Sitton places all of her eggs in the basket that

Mr. Miller misrepresented the status of his massage license to Massage Odyssey and

that the company failed to uncover the ruse. But this is too slender a reed on which

to support a foreseeability claim on these facts.

{¶12} In evaluating the foreseeability of an employee’s conduct for a

negligent hiring, supervision, or retention claim, the plaintiff must show that the

employer knew or should have known of the employee’s “propensity to engage in

similar tortious or criminal conduct.” Evans at ¶ 31 (fact that male employee dressed

as a woman and was on a protected floor was insufficient to show that employee’s

sexual assault of a hospital patient was foreseeable); Steppe v. Kmart Stores, 136

Ohio App.3d 454, 466, 737 N.E.2d 58 (8th Dist.1999) (“In the absence of a ‘known

criminal propensity,’ a criminal act by an employee is not reasonably foreseeable.”).

This may be established by presenting evidence of the employer’s actual or

constructive knowledge of the employee’s criminal tendencies. Evans at ¶ 31

(“Plaintiff] did not present evidence to show that [employer] had actual or

constructive knowledge of [employee’s] criminal propensities.”).

{¶13} Mr. Miller had obtained all of the requisites for a massage license

(including education, training, and the like) but neglected to pay the roughly $200

licensure fee (the record sheds no light on the reason for his omission). While his

representation that he was fully licensed to Massage Odyssey certainly was

inaccurate, that is a far cry from a red flag that he might perpetrate a sexual assault.

Ms. Sitton insists, however, that this misrepresentation reflected his

untrustworthiness and that, if left unsupervised, he might well violate a client’s trust.

But the resume inflation regarding Mr. Miller’s massage license is legally insufficient

to establish the foreseeability of his sexual assault of Ms. Sitton. See Wagoner ex rel.

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Washburn v. United Dairy Farmers, Inc., 1st Dist. Hamilton No. C-990767, 2000

WL 1714252, *2 (Nov. 17, 2000) (instances of prior behavior cited by the plaintiffs

did not establish foreseeability of employee’s conduct where prior conduct was

sexual in nature, but neither criminal nor tortious). Ms. Sitton needed to show that

Massage Odyssey knew or should have known that Mr. Miller had a “propensity to

engage in similar tortious or criminal conduct.” Evans at ¶ 31; Rozzi v. Star

Personnel Sers., Inc., 12th Dist. Butler No. CA2006-07-162, 2007-Ohio-2555, ¶ 10-13

(employee’s criminal background would not have revealed violent propensities where

past offenses that hinted at violence were dismissed or pleaded to lower offense and

therefore conduct was not foreseeable so as to create liability for negligent hiring).

But a misrepresentation of this ilk falls short of the “similar misconduct” indicative

of a propensity to perpetrate sexual assault. See Wagoner at *2 (where no prior

instances of similar misconduct existed, the plaintiff, as a matter of law, could not

demonstrate that employee’s subsequent criminal conduct was foreseeable).

{¶14} Therefore, even if, as Ms. Sitton claims, an investigation into Mr.

Miller’s license would have revealed some incompetence or dishonesty, this would

not have sounded the alarm about the prospect for a later sexual assault. Under the

circumstances presented here, because Ms. Sitton failed to point to any prior

instances of similar misconduct by Mr. Miller which may give rise to foreseeability of

his criminal conduct, no liability arises under a negligent hiring, supervision, or

retention theory. We accordingly overrule her second assignment of error.

{¶15} In conclusion, we find that no genuine issues of material fact exist in

the current case. Construing the evidence most strongly in Ms. Sitton’s favor,

reasonable minds could come to only one conclusion, which is that Massage Odyssey

and Ms. Moorehead are not liable for her injuries as result of Mr. Miller’s actions,

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under either the theory of respondeat superior or negligent hiring, supervision, or

retention. While we certainly sympathize with Ms. Sitton for what she had to

endure, we cannot disregard the settled requirements of Ohio law that bar her claim

on the record at hand. We accordingly overrule both Ms. Sitton’s assignments of

error and affirm the judgment of the trial court.

Judgment affirmed.

MOCK, P.J., and WINKLER, J., concur.

Please note: The court has recorded its own entry this date.