[Cite as Thomas v. Reserves Network , 2011-Ohio-5857.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

MONTY THOMAS Appellant

v. THE RESERVES NETWORK, et al. Appellees C.A. No. 10CA009886

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CV163906

DECISION AND JOURNAL ENTRY Dated: November 14, 2011

WHITMORE, Judge. {¶1} Plaintiff-Appellant, Monty Thomas, appeals from the judgment of the Lorain County Court of Common Pleas, denying his mo tion for leave to amend his complaint and granting summary judgment in favor of Defe ndant-Appellees, The Reserves Network, Inc. (“Reserves Network”) and Victor McCown. This Court affirms.

I {¶2} Reserves Network and I-Force, LLC (“I-Force”) are two temporary staffing agencies that both provided Central Ohio Wareh ouse Co. (“Central Ohio”) with workers for its warehouse. Specifically, Reserves Network provi ded Central Ohio with Victor McCown, and IForce provided Central Ohio with Monty Thomas . On October 4, 2007, Thomas was seriously injured after McCown operated a tow motor and caus ed a steel rack loaded with tires to fall upon Thomas. Thomas received workers’ compensa tion benefits as a result of his injuries.2

{¶3} On September 11, 2009, Thomas filed suit against McCown 1 and all of the agencies involved in this matter. As to McCo wn, Reserves Network, a nd Central Ohio, Thomas stated a claim for negligence. As to Central Ohio and I-Force, Thomas stated claims for two intentional torts, failure to comply with various statutory regulations, and punitive damages.Reserves Network and McCown filed a motion for summary judgment together while both IForce and Central Ohio independe ntly moved for summary judgment. Thomas filed a single memorandum in opposition, responding to all of the foregoing motions. {¶4} On July 9, 2010, after all the summary judgment motions were filed, Thomas requested leave to file a second amended complain t. Specifically, Thomas sought to add an additional count for negligent hiring, placement, and retention against Reserves Network and

Central Ohio. Reserves Networ k and Central Ohio both opposed the motion for leave to amend. On August 13, 2010, the trial court denied Thomas ’ motion for leave to amend his complaint and granted summary judgment in favor of all of the defenda nts on all counts. {¶5} Thomas now appeals from the trial cour t’s judgment and rais es two assignments

of error for our review.

II Assignment of Error Number One

“THE TRIAL COURT ERRED BY PROHIBITING PLAINTIFF-APPELLANT TO AMEND THE COMPLAINT TO CONFORM TO THE EVIDENCE PURSUANT TO CIVIL RULE 15[.]”

1 Thomas initially named McCown as Victor “Doe” in his complaint. After conducting discovery, Thomas sought to amend his complaint in order to properly name Victor McCown. The court granted Thomas leave on April 14, 20 10, and Thomas filed an amended complaint naming McCown on April 19, 2010.3

{¶6} In his first assignment of error, Thomas argues that the trial court erred by denying his motion for leave to file a second amende d complaint. He argues that he should have been permitted to add a claim of negligent hiring, placement, and retention against Reserves Network and Central Ohio. We disagree. {¶7} “The decision to grant or deny a motion to amend a complaint lies in the

discretion of the trial court and will not be reversed ab sent an abuse of discretion.” Wallner v.

Thorne , 9th Dist. No. 09CA0053-M, 2010-Ohio-2146, at ¶ 10. An abuse of discretion means that the trial court was unreasonable, arbitrar y, or unconscionable in its ruling. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219. {¶8} Initially, we note that Thomas sought leave to amend his complaint pursuant to Civ.R. 15(B). Civ.R. 15(B) governs the amendment of a complaint to conform to the evidence at trial and has no application in a ca se where there has been no trial. Merrill Lynch Mtge. Lending, Inc. v. 1867 West Market, L.L.C. , 9th Dist. No. 23443, 2007-Ohio-2198, at ¶11. We next consider whether Civ.R. 15(A) would have supported an amendment to a plaintiff’s complaint.

Id. {¶9} Civ.R. 15(A) permits a party to amend a complaint with leave of court after one amendment has already occurred. The rule provid es that the leave “shall be freely given when justice so requires.” Civ.R. 15(A). “[W]here it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted, a nd it is tendered timely and in good faith and no reason is apparent or disclosed for de nying leave, the denial of leave to file such amended complaint is an abuse of discretion.” Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175. Yet, “[a]n attempt to amend a complaint following the filing of a motion for summary judgment raises the spectre of prejudice.” Brown v. FirstEnergy Corp. , 9th Dist. No. 22123, 2005-Ohio-4

712, at ¶6. “A plaintiff must move to am end under Civ.R. 15(A) in a timely manner.” Cunningham v. Cunningham , 9th Dist. No. 01CA007938, 2002-Ohio-2647, at ¶16. {¶10} The record reflects that Thomas filed an amended complaint on April 19, 2010 after conducting McCown’s deposition at the end of March 2010. After having answered the original complaint, all of the defendants then filed answers to the amended complaint. Moreover, all of the defendant s then filed motions for summary judgment on May 7, 2010; May 19, 2010; and May 28, 2010; respectively. The dead line that the trial court set for summary judgment motions was May 28, 2010. Thomas did not seek leave to amend his complaint until July 9, 2010; after the summary judgment deadlin e had passed and all of the summary judgment

motions had been filed. {¶11} Thomas based his request for leave to am end on evidence that he claimed he did not discover “until the deposition of Victor McCown on March 23, 2010.” Thomas further

indicated in his motion for leave to amend that his counsel did not obtain a transcript of the depositions in this case until May 12, 2010. His counsel, however, was present for both of the depositions, which took place in March 2010. Thomas even filed his first amended complaint in response to McCown’s deposition so as to properl y designate McCown as a party-defendant by name. Further, Thomas did not file his motion for leave until almost two months after he claimed that his counsel obtained the transcript of the depositions. The motion for leave to amend was filed well past the deadline that the court had set for summary judgment motions, and

both Reserves Network and Ohio Central actually filed summary judgment motions. The amendment would have necessitated a re-filing of those motions, if not an additional discovery period, because both Reserves Network and Ohio Central conducted thei r discovery and filed their respective motions on the basis of simple negligence, not negligent hiring or retention. See5

Zanni v. Stelzer , 9th Dist. No. 07CA009108, 2007-Ohio-6215, at ¶8 (setting forth specific elements of negligent hiring and retention). {¶12} It was within the trial court’s discretion to conclude that Thomas’ motion for leave to amend was untimely, and that Reserves Network and Ohio Central would be prejudiced by allowing the amendment. See Brown at ¶6; Cunningham at ¶16-17. Based on our review of the record, we cannot say that the court abused its discretion by refusing to grant Thomas leave to amend. Thomas’ first assign ment of error lacks merit. Assignment of Error Number Two

“THE TRIAL COURT ERRED BY GRANTING DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED[.]” {¶13} In his second assignment of error, Thom as argues that the trial court erred by entering summary judgment in favor of Reserves Network and McCown with respect to his claim for negligence against them. We disagree. {¶14} We first note that Thomas does not challe nge the remainder of the trial court’s summary judgment determinations. Thomas indicates in his brief that he only challenges the court’s summary judgment award with respect to Reserves Network and McCown. As such, we limit our analysis to a review of the award in favor of those two defendants, against whom Thomas only asserted negligence. {¶15} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to Civ.R. 56(C), summary judgment is proper if: “(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for6

summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine

issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party bears the burden of offering specific facts to show a genuine i ssue for trial. Id. at 293. The non-moving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that demonstrates a genuine dispute over a material fact.

Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735. {¶16} The Revised Code immunizes employers from common law suits initiated by their employees for injuries arising out of the course and scope of th eir employment, provided that the employers are in full compliance with their workers’ compensation premiums. R.C. 4123.74. Similarly, fellow employees of an in jured employee also are immune from suit, provided that the injury is one “found to be compensable under [the workers’ compensation statutes].” R.C. 4123.741. “[R.C. 4123.74] is a codi fication of the principl e set forth in Section 35, Article II of the Ohio Constitution that workers’ compensation benefits will be an employee’s exclusive remedy against her employer for workplace injuries.” Vacha v. N. Ridgeville , 9th Dist. No. 10CA009750, 2011-Ohio-2446, at ¶5 . The statutes form Ohio’s Fellow Servant Immunity Doctrine. Nova v. State Farm Mut. Auto. Ins. Co. , 9th Dist. No. 21885, 2004- Ohio-3419, at ¶10, citing R.C. 4123.74 and R.C. 4123.741. {¶17} The Fellow Servant Immunity Doctrine applies to employers and employees, not independent contractors. Marshall v. Aaron (1984), 15 Ohio St.3d 48, 49-50. In the context of7

temporary agencies who supply their customers with temporar y workers, the Ohio Supreme Court has recognized that a customer can be deemed an employer for purposes of fellow servant immunity in certain instances. Daniels v. MacGregor Co. (1965), 2 Ohio St.2d 89, syllabus. Immunity is dependent, however, upon the customer acting as the employer rather than the temporary agency. Id. at 93-95. Accord Cheriki v. Black River Industries, Inc. , 9th Dist. No. 07CA009230, 2008-Ohio-2602, at ¶17. The key inquiry in determining whether a customer is a worker’s employer for purposes of fellow servan t immunity is whether the customer has the right

to control the manner or means of th e temporary worker’s performance. Vandriest v. Midlem (1983), 6 Ohio St.3d 183, 184; Daniels , 2 Ohio St.2d at syllabus. {¶18} Reserves Network and McCown moved for summary judgment below on the basis of fellow servant immunity. Specifically, th ey argued that: (1) both McCown and Thomas were employees of Central Ohio, the customer of both Reserves Network and I-Force; (2) because McCown and Thomas were fellow employees and Thomas received workers’ compensation after he was injured, McCown was immune from suit under R.C. 4123.741; and (3) the failure of the claim against McCown also resulted in the failure of the claim against Reserves Network, as the negligence claim agai nst it only sounded in vicarious liability by way of the doctrine of respondeat superior. Rese rves Network and McCown primarily relied upon the deposition testimony of McCown and Thom as in support of their motion for summary judgment. {¶19} Thomas testified that I-Force arranged fo r his employment at Central Ohio. His job there consisted of loading and unloading tires from truck trailers parked at the loading bays in the warehouse. An employee from I-Force took a small group of temporary workers, including Thomas, to Central Ohio after he accep ted the job. Once there, however, an employee8

of Central Ohio took Thomas around the ware house and “explained everything” to him. Specifically, Thomas testified that Central Ohio specifically instructed him how to load and unload tires, complete with examples of how the work was to be performed. Thomas was assigned to the area of the warehouse where truc ks were ready to be loaded or unloaded and reported to that area at the beginning of the da y and after lunch. Central Ohio had scheduled

lunch breaks for Thomas and the other wareho use workers as well as fifteen-minute breaks during the course of the day. Thomas testified th at he used a punch card to sign in and out at the beginning and end of the day at Central Ohio, as well as at lunch time. He also testified that only

half of the warehouse workers could take their lu nch at a given time, so Central Ohio divided the warehouse workers into two lunch groups. Thomas explained that Central Ohio trained him to report back to the warehouse after lunch and begi n either loading or unloading a truck with a partner, depending on what trucks were there at the time. {¶20} As to the performance of his job duties, Thomas testified that Central Ohio assigned him to work with a more experienced work er at first so that he could learn exactly how to properly do his job. He explained that ther e was a specific method fo r loading and unloading the tires. In unloading a truck, for instance, th e tires had to be removed by row from top to

bottom with the aid of steel racks and a tow motor, operated by another worker. Thomas indicated that he had a direct supervisor at Central Ohio who remained on the dock alongside the warehouse workers during his shift. On the day Thomas received his injuries, Central Ohio’s dock supervisor directed him to load the specific truck at issue because all of the other trucks already had workers on them. {¶21} McCown testified that he agreed to work at Central Ohio the same day that he contacted Reserves Network, seeking employment. According to McCown, he watched a safety9

video at Reserves Network at the time he filled out his appli cation, but did not receive any training there. McCown did not recall ever se eing any Reserves Network employees at Central Ohio. Rather, he testified that Central Ohio’s employees trained workers to operate a tow motor if they lacked experience and placed a worker on a tow motor when, in Central Ohio’s estimation, the worker was ready to operate it. Ce ntral Ohio assigned McCown to a specific tow motor and he operated that particular tow motor each day. Much like Thomas, McCown testified that he used a punch card at Central Ohio and ha d a scheduled lunch break each day. He further testified that he had a direct supervisor at Central Ohio who would instruct him what to do each day. On the day Thomas was injured, McCown’s job consisted of help ing to load and unload tires from truck trailers by using the tow motor to transfer the tires on steel racks to and from the

warehouse. McCown indicated that Central Ohio generally assigned him someone to work with each day, but sometimes allowed him to choose the person with whom he wished to work. {¶22} We conclude, based on the foregoing, that McCown satisfied his initial Dresher burden with respect to his argument that both Thomas and McCown were employees of Central Ohio at the time Thomas was injured. The record reflects that Central Ohio trained each man to perform their jobs, controlled the manner in which they performed those jobs, and assigned each man to a particular job, area, a nd/or partner for their job each da y. Thomas and McCown also used all of Central Ohio’s equipment to perform their duties and reported to a supervisor at Central Ohio. Although both Thomas and Mc Cown emanated from temporary agencies, McCown set forth evidence demonstrating that it was Central Ohio that had the right to control

the manner and means of Thomas and McCown’s work performances on a daily basis. See

Cheriki at ¶18; Daniels , 2 Ohio St.2d at 90-91. Compare Marshall , 15 Ohio St.3d at 49-50 (concluding that reasonable minds could differ on the issue of control where alleged employer10

did not distribute equipment, did not discuss when or how work was to be performed, and did not have a presence on a particular job site). Consequently, McCown also satisfied his Dresher burden on the issue of his immunity, as his stat us as a fellow employee of Thomas would immunize him from a negligence suit. See R.C. 4123.741. {¶23} Thomas first opposed Reserves Network and McCown’s motion for summary judgment in this matter on the basis that they failed to assert fellow servant immunity as an affirmative defense. See Civ.R. 8( C) (requiring that “injury by fellow servant” be pleaded as an affirmative defense). In their answer, however , Reserves Network and McCown included as an affirmative defense that Thomas’ complaint was barred because workers’ compensation benefits “provide[d] [his] sole remedy[.]” It also inco rporated by reference an d adopted any affirmative defenses raised by other parties to the suit. I-Fo rce, in particular, pleaded the fact that Thomas was barred from bringing suit by virtue of S ection 35, Article II of the Ohio Constitution. See

Vacha at ¶5. Thomas did not respond, either in th e court below or in his brief on appeal, to Reserves Network and McCown’s argument that the foregoing assertions were sufficient for purposes of having pleaded fellow servant immuni ty. See App.R. 16(A)(7). Consequently, we reject his blanket assertion th at Reserves Network and McCo wn did not properly raise the defense of fellow servant immunity. {¶24} Thomas argues on appeal that McCown was not immune from suit because he and McCown came from different temporary agencies. He claims that McCown is a third-party in

relation to him and that th e Supreme Court’s opinion in Daniels cannot be extended to situations where the temporary employees at issue come from two different temporary agencies. With regard to McCown, however, Thomas’ argument misses the point because so long as both he and McCown were employees of Central Ohio, the re lationship between them was not that of third11

parties. They would both, as a matter of law, be employees of the same employer. The result only would differ if one or both of them could not be deemed an employee of Central Ohio at the time Thomas was injured. {¶25} In rebutting the assertion that he was an employee of Central Ohio, Thomas argues in a single, unsupported sentence that I-Fo rce retained a degree of control over his work at Central Ohio. He fails to articulate what, if any, evidence substantiates his assertion. See App.R. 16(A)(7). He also fails to address th e impact of his own deposition testimony, in which

he indicated that Central Ohio c onducted all of his training, work a ssignments, and daily activity. Id. Absent any analysis to the contrary, we will not conclude that the trial court erred by holding that Thomas was Central Ohio’s employee. Cardone v. Cardone (May 6, 1998), 9th Dist. No. 18349, at *8 (“If an argument exists that can suppor t this assignment of error, it is not this [C]ourt’s duty to root it out.”). {¶26} In rebutting the assertion that McCown was an employee of Central Ohio, Thomas argues that Reserves Network had a mutual right to control McCown. The only evidence upon which he relies is a “Safety Partners hip Letter” that Central Ohio and Reserves Network signed. In the letter, the two companie s agreed to have a mutual understanding on the issue of safety and to work toward a safe wo rk environment for all employees. The letter, however, does not refer to McCown at all. Al though McCown did testify that he watched a safety training video at Reserves Network when he first applied there, he explained that all his specific job training took pl ace at Central Ohio. Nothing in the record supports the assertion that Reserves Network performed any tr aining at Central Ohio or had any presence there. McCown testified that he did not recall ever seeing a Reserves Network representative at Central Ohio. Indeed, throughout his motion for summary judg ment, Thomas specifically accused Reserves12

Network of not appearing at Central Ohio to obser ve or oversee any of the conditions there. As such, we disagree that the letter between Reserves Network and Central Ohio creates any genuine issue of material fact with regard to McCown’s employment at Central Ohio. The record supports the trial cour t’s conclusion that McCown wa s Central Ohio’s employee. {¶27} Because Thomas and McCown were fellow employees, McCown was immune from suit by virtue of fellow servant immunity. R.C. 4123.741. The only remaining issue is the potential liability of Reserves Ne twork. As set forth above, Re serves Network argues that, because McCown is immune from suit, the claim of vicarious liability against Reserves Network through the doctrine of respondeat supe rior also must fail. See, e.g., Walk v. Ohio Supreme

Court , 10th Dist. No. 03AP-205, 2003-Ohio-5343, at ¶6 (“[I]f an employee has no liability, the employer cannot be liable under the theory of re spondeat superior because any liability of the employer is derivative of the employee’s liability.”). That is only true, however, when a court determines that an employee’s actions are not negligent. See Strock v. Pressnell (1988), 38 Ohio St.3d 207, 217 (concluding that respondeat superi or could not apply where employee was not liable on the merits); Moncol v. Bd. of Ed. Of N. Royalton Sch. Dist. (1978), 55 Ohio St.2d 72, syllabus (“[B]ased upon the doctrine of respondeat superior, as between the same parties, a judgment in favor of the servant on the meri ts renders invalid any judgment against the master.”); Pretty v. Mueller (1997), 132 Ohio App.3d 717, 723 (providing that an employer “cannot be independently found liable under respond eat superior” if the accused employee “has been found to have no liability”). The same rule does not apply to situations where an employee is personally immune from liability. State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas , 126 Ohio St.3d 198, 2010-Ohio-3299, at ¶21-29 (“A pr ivate employer may still be liable even if the employee is personally immune, for the doctrin e of respondeat superior operates by imputing13

to the employer the acts of the tortfeasor, not the tortfeasor’s liability.”); Adams v. Peoples (1985), 18 Ohio St.3d 140, 142-43. Because McCown was immune from suit irrespective of any negligent conduct, Reserves Ne twork was not entitled to summary judgment on the basis of McCown’s immunity. {¶28} The trial court granted summary judgment in favor of Reserves Network on the basis that it was an employer entitled to immuni ty under R.C. 4123.74. The trial court concluded

that Daniels , supra, immunized both Central Ohio and Reserves Network from liability because both entities were McCown’s employer. This Court disagrees with the trial court’s interpretation

of Daniels . See Cheriki at ¶17 (“When a customer of a temporary agency retains the ability tocontrol the manner and means of the work performed by leased employees, it is the customerrather than the employment agency -that enjoys the benefit of th e immunity conferred by R.C. 4123.74.”) (Emphasis added.); Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 194 (“A review of prior case law establishes that one who exercises day-to-day control over the employee

will be considered as the employer for purposes of workers’ compensation.”) (Emphasis added.) As previously noted, Central Ohio was acting as McCown’s employer, not Reserves Network. The reason that Reserves Network was entitled to summary judgment, therefore, is not because it had employer immunity, but because it was not acting as McCown’s employer. {¶29} The doctrine of respondeat superior subject s an employer or principal to liability for the torts of an employee or agent. Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth , 122 Ohio St.3d 594, 2009-Ohio-3601, at ¶20. Yet, the “ doctrine of liability depends on the existence of control by a principal (or master) over an agent (or servant)[.]” Id. “Generally, an employer or principal is not vicariously liable for the ne gligence of an independent contractor over whom it retained no right to control the mode and ma nner of doing the contracted for work.” Lovett v.14

Lorain Comm. Hosp. , 9th Dist. No. 2004-Ohio-598, at ¶12, quoting Clark v. Risko , 5th Dist. No. 03CA14, 2003-Ohio-7272, at ¶12. Accord Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 438. Here, it was Centra l Ohio, not Reserves Network, who retained

control over the mode and manner of McCown’s work. Any negligence on his part could not be imputed to Reserves Network by way of respond eat superior because Reserves Network was not exerting control over McCown’s actions at the time Thomas was injured. Lovett at ¶12. Accordingly, the trial court did not err by entering summary judgment in favor of Reserves

Network. In re Estate of Baker , 9th Dist. No. 07CA009113, 2007-Ohio-6549, at ¶15 (“An appellate court shall affirm a tr ial court’s judgment that is le gally correct on other grounds, that is, one that achieves the right result for the wrong reason, because such an error is not prejudicial.”). {¶30} In sum, the trial court properly entered summary judgment in favor of McCown and Reserves Network with regard to Thomas’ ne gligence claim against them. Thomas’ second assignment of error is overruled.

III {¶31} Thomas’ assignments of error are overrule d. The judgment of the Lorain County

Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.15

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

DICKINSON, J. CONCURS BELFANCE, P. J. CONCURS, IN PART, AND DISSENTS, IN PART, SAYING: {¶32} I respectfully dissent from the majority’s resolution of the first assignment of error and a portion of the s econd assignment of error. {¶33} With respect to Mr. Thomas’ first assignment of error, the trial court appears to have concluded that Mr. Thomas could not possibly succeed on a negligent hiring claim against Reserves Network based upon its mistaken conclusion th at Reserves Network was immune. As

the trial court was mistaken on that point, and did not consider the merits of the request for leave

to amend under the liberal standard of Civ.R. 15(A), I would remand the matter for the trial

court’s further consideration. {¶34} Although the exact nature of the empl oyment relationship between Reserves

Network and Mr. McCown is unclear, it is possible that Mr. Thomas could sustain a cause of16

action for negligent hiring against Reserves Network even if Mr. McCown is deemed an independent contractor of Reserv es Network. While it is generall y true that “an employer or principal is not vicariously liable for the neglig ence of an independent contractor over whom it retained no right to control the mode and manner of doing the contracted for work[,]” (Internal quotations and citatio ns omitted.) see Lovett v. Lorain Comm. Hosp. , 9th Dist. No. 03CA008300, 2004-Ohio-598, at ¶12, there are ex ceptions to the general rule. See Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 257, overruled on other grounds. One of the exceptions is that “an employer may be direct ly liable for injuries resulting from its own negligence in selecting or retaining an independent contractor.” Id. Thus, it is within the realm of possibility that Mr. Thomas could state a claim against Reserves Network for negligent hiring. Because the trial court thought that amendment of the complaint was futile, it did not consider whether Mr. Thomas should be granted leave to amend his complaint to add a claim for negligent hiring against Reserves Network in li ght of the liberal standard under Civ.R. 15(A). Given the complex nature of the facts, the existence of multiple parties, and the legal issues surrounding this case, in the exercise of its discretion, the trial cour t could have reasonably allowed Mr. Thomas to amend his complaint. Attorneys do not typically have only one single client and must manage multiple clients, court appearances, and trial schedules. Thus, they should be given reasonable leeway to assess and analyze deposition testimony, research the law, and consult with their clients prior to deciding whether to seek amendment of the complaint. Here, the time-frame between the taking of the depositions and the request for leave to amend was not so unreasonable or egregious that the tria l court would have been acting unreasonably if it had granted Mr. Thomas leave. The trial cour t’s journal entry contains no suggestion that it would have denied the leave to amend because of delay. Accordingly, I would decline to decide17

this issue in the first instance. I would sustain Mr. Thomas’ first assignment of error, and remand the matter to the trial court for consideration of Mr. Thomas’ request for leave to amend his complaint. {¶35} With respect to the majority’s resolution of the second assignment of error concerning Mr. Thomas’ claim against Reserves Network based upon the doctrine of respondeat superior, I respectfully dissent as I would conclude that Reserves Network did not meet its initial

Dresher burden on this issue and did not establish its entitlement to judgment as a matter of law. {¶36} The majority correctly concludes that the workers’ compensation statute cannot be employed to define the legal relationship of Mr. Thomas to Reserves Network. Nor can it be employed to absolve Reserves Network of liability as Reserves Network is a third-party with respect to Mr. Thomas. Notably, Reserves Network did not even argue in its motion for summary judgment that it was entitled to summary judgment ba sed upon the application of the doctrine of respondeat superior. Instead, it in correctly argued that it was immune from suit

because Mr. McCown was immune under the worker ’s compensation statute. The trial court mistakenly agreed that Reserves Network wa s immune from suit because of Mr. McCown’s immunity. Thus, the question of whether Reserves Network was entitled to summary judgment as to Mr. Thomas’ claim based upon the doctr ine of respondeat superior was not actually considered and decided by the trial court. {¶37} “To succeed utilizing the doctrine of respondeat superior, [Mr. Thomas] must show (1) that a principal-agent relationship existed between [Mr. McCown] and [Reserves Network], and (2) that [Mr. McCown’s] tor tious conduct was committed within the scope of h[is] employment.” Thomas v. Speedway Superamerica, LLC , 9th Dist. No. 06CA0004, 2006- Ohio-5068, at ¶17. Thus, for Reserves Network to succeed on its motion based upon the merits,18

it could have asserted either that Mr. McCown wa s an independent contractor or that his actions were not within the scope of his employment. See id. Furthermore, it had an initial Dresher

burden to set forth facts that demonstrated a lack of factual dispute as to Mr. McCown’s employment status. Yet, Reserves Netw ork made neither argument below. {¶38} In discussing Mr. Thomas’s claim agai nst it sounding in respondeat superior, Reserves Network did not provide or point to any evidence concerning Mr. McCown’s employment relationship with Reserves Networ k. Reserves Network hi red Mr. McCown, paid him and provided him with worker’s compensati on insurance. Beyond that, Reserves Network did not supply pertinent documentation or inform ation concerning its em ployment relationship

with Mr. McCown. We do not know whether Mr. Mc Cown had an employment contract with Reserves Network further detailing the employ ment relationship. We do not know whether Reserves network retained the ultimate right of control over where and when Mr. McCown worked and whether it had the authority to pull Mr. McCown off of any job he might be working. Nor do we know whether Mr. McCown was a regular W-2 employee or whether he received a 1099 – something that would be more consistent with an in dependent contractor. Rather, in its motion for summary judgment, it merely stated that “[Mr.] Thomas’s claims against [Mr.] McCown are barred by operation of R.C. []4123.741. Thus, there exist no material issues of fact[, and] Thomas’s claim agai nst [Reserves Network] must also fail.” {¶39} Thus, in my view, Reserves Network did not meet its Dresher burden to demonstrate that Mr. McCown was not its employ ee. Notably, in assessing this question, the issue is more complicated by virtue of the na ture of Reserves Network’s business. A unique problem is presented in this employment scenar io where Reserves Network is the general or primary employer that services its business clie nts such as Central by providing them with19

temporary employees under circumstances where Reserves may retain the ultimate control over its employee. “Under Ohio law, ‘[t]he chief test in determining whether one is an employee or an independent contractor is the right to contro l the manner or means of performing the work.’” Burns v. Rudolph , 9th Dist. No. 22780, 2005-Ohio-6918, at ¶12, quoting Bobik v. Indus. Comm. (1946), 146 Ohio St. 187, paragraph one of the syllabus. “Factors to be considered in making this determination include: ‘[(1)] who controls the details and quality of the work; [(2)] who controls the hours worked; [(3)] who selects the materials, tools a nd personnel used; [(4)] who selects the routes [traveled]; [(5)] the length of empl oyment; [(6)] the type of business; [(7)] the method of payment; and [(8)] any pertinent agreements or contracts.’” Burns at ¶12, quoting Bostic v. Connor (1988), 37 Ohio St.3d 144, 146. {¶40} Thus, in examining Mr. McCown’s positi on vis a vis Reserves Network, based on the record, it would appear that he had little or no control over the type of business he was placed in or the length of employment. Further, we have no information regarding the existence of contracts, if any, between these parties. The fact that Central could direct Mr. McCown as to his work, does not warrant the conclusion that Mr. McCown is an independent contractor of Reserves Network. For this particular aspect of the analysis, the focus is on the relationship

between Mr. McCown and Reserv es Network. Based upon the record before us, it does not appear that Mr. McCown had much control over “the manner or means of performing the work[]” with respect to Reserves Network, and there is no evidence that Mr. McCown reserved any right of control with respect to hi s employment with Reserves Network. Burns at ¶12, quoting Bobik , 146 Ohio St. at paragraph one of the syllabus. {¶41} Given Reserves Network’s failure to meet its Dresher burden as well as its failure to develop any legal argument in the trial court, I would decline to decide the issue of respondeat superior in the first instance. Accordingly, I respectfully dissent.20

APPEARANCES: JESSE M. SCHMIDT and ROBERT C. OCHS, Attorneys at Law, for Appellant. STEVEN G. JANIK, AUDREY K. BENTZ, and JOHN J. ROSZCZYK, Attorneys at Law, for Appellee.