Parrett v. Univ. of Cincinnati Police Dept.
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[Cite as Parrett v. Univ. of Cincinnati Police Dept., 2001-Ohio-1844.]
IN THE COURT OF CLAIMS OF OHIO
MONTY PARRETT, etc., et al.
:
Plaintiffs
:
CASE NO. 99-12014
v.
:
DECISION
:
Judge Fred J. Shoemaker
UNIVERSITY OF CINCINNATI
POLICE DEPARTMENT
:
Defendant
: : : : : : : : : : : : : : : : :
The issues in this case were bifurcated and a trial was
scheduled on the sole issue of liability.
However, as a result
of an April 12, 2001, pretrial conference, the parties were
granted leave to submit the case on joint stipulations of fact
supported by trial briefs.
The matter is now before the court
for determination.
Defendant (the University) employed Ralph L. Trost (Ralph)
as a police officer.
At all times relevant hereto, Ralph acted
within the course and scope of his University employment.
On
October 26, 1997, the University participated in a Law
Enforcement Expo at the Eastgate Mall.
Expo.
Ralph was present at the
The University owned a motorcycle that had been taken to
the mall for the Expo.
Ralph was responsible for returning the
motorcycle to its garage.
On October 26, 1997, at approximately 8:30 a.m., Ralph
telephoned his brother, Terry A. Trost (Terry) and asked him to
bring his truck and trailer to the mall at approximately 6:00
p.m. to transport the University motorcycle back to its garage.
Although Terry was employed by the Miami Township, Ohio, Police
Department and had planned to attend the Expo, he was not
employed by the University.
At approximately 4:45 p.m., while en route to the mall,
Terry was involved in an accident.
Terry’s negligent operation
of his truck proximately caused the accident and injuries to
plaintiff.1
After being notified of the accident, Ralph drove
the motorcycle to the garage.
The University had no formal
policy for transporting motorcycles, and no University trucks or
trailers were used for transporting motorcycles.
Plaintiffs contend that Terry was acting as an employee of
the University, because he was solicited to aid in the
performance of duties that were within the course and scope of
Ralph’s University employment.
As authority for their position,
plaintiffs rely primarily on Calhoun v. Middletown Coca-Cola
Bottling (1974), 43 Ohio App.2d 10.
In that case, a delivery
driver employed by Middletown Coca-Cola Bottling recruited a
teenager to help make deliveries.
aiding in the deliveries.
The teenager was injured while
The Butler County Court of Appeals
held that where an employee invites a non-employee to assist him
in performing work for his employer, the employer is liable under
the doctrine of respondeat superior for injuries caused by the
negligence of the individual hired by the employee, even though
the employer’s general directions prohibit such an invitation.
In response, the University contends that Calhoun offers
plaintiffs no support because that case involved express
authority rather than apparent authority.
Furthermore, the
University argues that the doctrine of apparent authority is not
1
“Plaintiff” will be used throughout this decision to refer to
plaintiff, Monty Parrett.
Case No. 99-12014
-3-
DECISION
applicable against the state or against undisclosed principals.
[Cite as Parrett v. Univ. of Cincinnati Police Dept., 2001-Ohio-1844.]
In Calhoun, supra, the court stated:
Preliminarily, we note that the pertinent law
of Ohio leaves open any precise definition of
the terms ‘scope’ or ‘course’ of employment,
that is: ‘The expression ‘scope of
employment’ cannot be accurately defined,
because it is a question of fact to be
determined according to the peculiar facts of
each case.’ Rogers v. Allis-Chalmers Mfg.
Co. (1950), 153 Ohio St. 513, 526.
Generally, it is well said that:
‘*** [T]he servant’s conduct is within the
scope of his employment if it is of the kind
which he is employed to perform, occurs
substantially within the authorized limits of
time and space, and is actuated, at least in
part, by a purpose to serve the master. ***’
The theory advanced by the defendant seeks to
focus on the unauthorized hiring of the
victim Calhoun as a dispositive fact
insulating Coca-Cola from liability. Yet its
own vigorous cross-examination of the victim
clearly established both that Calhoun’s sole
reason for being at the site of the injury
was in response to the servant’s request, and
in furtherance of the master’s business. ***
We are thus led to the proposition that the
status of an injured third party vis-a-vis
the master cannot -- as a matter of law -block the application of respondeat superior
where the act complained of arises as here,
within the scope of the servant’s employment.
(Emphasis added.)
Id. at 13-14.
The three factual differences between Calhoun and the case
subjudice are: 1) the teenager driver injured in Calhoun was
hired by the employee, whereas here, Terry received no
compensation for transporting the trailer; 2) the defendant in
Case No. 99-12014
-5-
DECISION
Calhoun was a private party rather than a state agency; and 3) in
Calhoun, the injured party was the teenage driver, whereas here,
a third-party was injured by the driver’s negligence.
Despite
these factual differences, the court finds that the Calhoun
decision compels a judgment in favor of plaintiffs.
Applying the rational of Calhoun to the facts of the instant
case, the court finds that Ralph believed he was authorized to
request another to transport the trailer and that, in so doing,
it was for a purpose to serve the master, to-wit: the University.
The University’s argument that all hiring authority is
vested solely in the University’s Board of Trustees has no merit.
If the Board of Trustees was required to hire every the
University employee, its members would be serving full-time with
little time for major problems and policies.
The facts in each
case are determinative of when the board’s intervention is
required, otherwise this is a delegable power.
Further, the University’s argument that it can only be bound
by employees and agents who act within the scope of express
authority is without merit.
The general rule that the state
cannot be estopped by mistakes of its agents is grounded upon the
rule of law that the agency doctrine of apparent authority does
not apply to agents of the state.
However, this is a general
rule and in this case, based on the stipulated facts, the court
finds that it is not applicable.
Judgment shall be rendered for plaintiffs on the liability
issue and the case will be set for trial on the issue of damages.
________________________________
Case No. 99-12014
-6FRED J. SHOEMAKER
Judge
DECISION
[Cite as Parrett v. Univ. of Cincinnati Police Dept., 2001-Ohio-1844.]
IN THE COURT OF CLAIMS OF OHIO
MONTY PARRETT, etc., et al.
:
Plaintiffs
:
CASE NO. 99-12014
v.
:
JUDGMENT ENTRY
:
Judge Fred J. Shoemaker
University OF CINCINNATI
POLICE DEPARTMENT
:
Defendant
: : : : : : : : : : : : : : : : :
This case was submitted to the court on the sole issue of
liability.
The court has considered the evidence, and for the
reasons set forth in the decision filed concurrently herewith,
judgment is rendered in favor of plaintiffs in an amount to be
determined after the second phase of the trial dealing with the
issue of damages.
The court shall issue an entry in the near
future scheduling a date for the trial on the issue of damages.
___________________________________
FRED J. SHOEMAKER
Judge
Entry cc:
Kathleen D. Mezher
1241 Nagel Road
Cincinnati, Ohio 45255-3101
Attorney for Plaintiffs
Randall W. Knutti
65 East State St., 16th Fl.
Columbus, Ohio 43215
Assistant Attorney General
FJS/cmd
Filed 8-27-2001
Jr. Vol. 678, Pg. 122
To S.C. reporter 10-4-2001
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