Pusey v. Bator
94 Ohio St. 3d 275 (2001)
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Rule of Law:
When an employer hires an independent contractor to provide armed security guards to protect property, the work is considered inherently dangerous, creating a nondelegable duty for the employer who can then be held vicariously liable for the negligence of the contractor's employees.
Facts:
- Greif Brothers Corporation experienced several thefts at its Youngstown manufacturing plant.
- In April 1987, Greif Brothers hired Youngstown Security Patrol, Inc. (YSP) to provide uniformed security guards to deter theft and vandalism.
- The contract did not specify if guards should be armed, but Lowell Wilson, a Greif Brothers superintendent, was aware that YSP guards carried firearms and did not instruct them to stop.
- YSP hired Eric Bator as a security guard; Bator was not certified to work as an armed guard but brought his own gun to work because he felt uneasy without it.
- On August 12, 1991, while on duty at Greif Brothers, Bator saw two men, Derrell Pusey and Charles Thomas, in the parking lot.
- Following a verbal confrontation where Pusey swore at him, Bator became frightened, retrieved his gun, and ordered the two men to the ground.
- Bator, believing Pusey was reaching for a weapon, shot Pusey in the back of the head.
- Derrell Pusey subsequently died from the gunshot wound.
Procedural Posture:
- Ethel Pusey, individually and as executor of Derrell Pusey's estate, filed a wrongful death and survivorship action in a state trial court against Eric Bator, YSP, and Greif Brothers.
- Bator and YSP settled with Pusey during the jury trial, leaving Greif Brothers as the sole defendant.
- At the close of the plaintiff's case, Greif Brothers moved for a directed verdict, arguing it was not liable for the acts of its independent contractor, YSP.
- The trial court granted the directed verdict in favor of Greif Brothers.
- Pusey, as appellant, appealed to the Seventh District Court of Appeals, with Greif Brothers as the appellee.
- The court of appeals affirmed the trial court's judgment.
- The case is before the Supreme Court of Ohio upon the allowance of a discretionary appeal.
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Issue:
Does hiring an independent contractor to provide armed security guards constitute 'inherently dangerous work,' thereby making the employer vicariously liable for the negligence of the contractor's employees?
Opinions:
Majority - Douglas, J.
Yes, hiring an independent contractor to provide armed security guards constitutes inherently dangerous work, which makes the employer vicariously liable. Generally, an employer is not liable for the negligent acts of an independent contractor. However, an exception exists for work that is 'inherently dangerous,' which creates a nondelegable duty for the employer. Work is inherently dangerous when it creates a peculiar risk of harm to others unless special precautions are taken. The court reasoned that hiring armed guards to deter thieves and vandals makes it foreseeable that someone might be injured by the inappropriate use of a weapon. This risk is not a normal, routine matter but a special danger arising from the situation, thus triggering the inherently-dangerous-work exception and exposing the employer to liability for the guard's negligence.
Concurring - Cook, J.
Although concurring in the judgment to remand the case, this opinion disagrees that providing armed security is inherently dangerous as a matter of law. The question of whether work is inherently dangerous should often be a question of fact for the jury, dependent on the specific circumstances of the job, rather than a blanket legal rule. This case should be remanded for a jury to determine if the particular circumstances created a 'peculiar risk' or 'special danger.' Furthermore, liability should not be imposed for any and all negligence of the contractor, but should be limited to the contractor's failure to take reasonable precautions against the foreseeable risks, excluding liability for 'collateral' negligence.
Analysis:
This decision significantly impacts businesses that hire third-party security firms by classifying the provision of armed guards as an inherently dangerous activity. By creating a nondelegable duty, the ruling prevents employers from using the independent contractor defense to shield themselves from liability for a guard's negligence. This precedent places a greater burden on companies to meticulously vet, and potentially oversee, their security contractors to ensure proper training and conduct. The decision likely increases the importance of indemnification clauses in security contracts and could lead to higher insurance premiums for businesses utilizing armed security.
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