Terek et al v. Finkbiner et al

Filing 80

Order granting Motion for partial summary judgment (Related Doc # 53 ). Magistrate Judge James R. Knepp, II on 9/18/2015.(Knepp, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 3:14 CV 1391

JEAN A. TEREK,
Plaintiff,
v.
WINFIELD J. FINKBINER, et al.,

MEMORANDUM OPINION AND ORDER
ON DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
MAGISTRATE JUDGE JAMES R. KNEPP II

Defendants.
INTRODUCTION
Defendants Winfield Finkbiner (“Finkbiner”) and Trans-United, Inc. (“Trans-United”)
jointly filed a partial motion for summary judgment on Counts 9, 25, and 26 of Plaintiff Jean
Terek’s (“Plaintiff”) complaint. (Doc. 52). Plaintiff opposed the motion (Doc. 62) and the
Defendants replied (Doc. 72). In Count 9, Plaintiff alleges Trans-United was negligent in its
decision to hire Finkbiner as a semi-truck driver. Count 25 alleges a claim for punitive damages
resulting from Trans-United’s decision to hire Finkbiner, and Count 26 alleges a claim for
punitive damages against Finkbiner resulting from his conduct on the date of the accident which
injured Plaintiff.
The Court has jurisdiction under 28 U.S.C. § 1332. Because this case is brought under the
Court's diversity jurisdiction, “state law governs the substantive issues and federal law governs
the procedural issues, including evidentiary rulings made pursuant to the Federal Rules of
Evidence.” V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citing Gass
v. Marriott Hotel Servs., Inc., 558 F.3d 419, 425–26 (6th Cir. 2009)). The parties have consented
to the undersigned’s exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil
Rule 73. (Doc. 50). For the following reasons, Defendants’ motion is granted..

FACTUAL BACKGROUND
On August 2, 2012, Plaintiff was a passenger in a car traveling west on I-80 in the far
right lane. (Terek Dep. at 24; Salem Dep. at 30-31). On that same day, Finkbiner was operating a
tractor-trailer for Trans-United and was also heading westbound on I-80 but in the center lane.
(Finkbiner Dep. at 8, 23). Finkbiner initiated a lane change into the right lane and struck
Plaintiff’s vehicle on the front driver’s side. (Witt Dep. at 11, 34). Finkbiner testified he did not
see the Plaintiff’s car before changing lanes. (Finkbiner Dep. at 10). Plaintiff’s car was dragged
by Finkbiner’s trailer for a short period of time and upon release struck a guardrail. (Salem Dep.
at 31; Witt Dep. at 12). As a result of this accident, Plaintiff suffered injuries. (Doc. 62, Ex. 7).
Rose Witt, a witness driving in a car behind both Finkbiner and Plaintiff, observed
Finkbiner lose control of the tractor-trailer and nearly jack-knife after colliding with Plaintiff.
(Witt Dep. at 12). She testified that Finkbiner slowed briefly but did not stop and instead
continued on the highway. (Witt Dep. at 15-16). She further testified that she followed
Finkbiner’s truck because she believed he was trying to flee the accident scene. (Witt Dep. at 1617). According to Witt, Finkbiner accelerated to a speed of at least 85 mph for more than five
miles and then abruptly braked and reduced his speed to around 40 mph to exit the turnpike.
(Witt Dep. at 20-21).
Finkbiner was stopped at the toll booth by the police and according to his testimony, first
learned of the accident. (Finkbiner Dep. at 22-23). Finkbiner believed the difficulty steering he
had had was the result of a “chuckhole”. (Boo Dep. at 14). Finkbiner was cited for failure to
drive in marked lanes and for fleeing the scene of an injury accident. (Doc. 62, Ex. 9).
After finishing with the police, Finkbiner contacted his employer and submitted to a postaccident drug and alcohol test, which he passed. (Boo Dep. at 14-15; Finkbiner Dep. at 34). The

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next day Finkbiner delivered his load to Trans-United, where he discussed the accident with Tom
Boo, the safety director, and provided a written statement. (Boo Dep. at 16). Boo photographed
the tractor and the trailer. (Boo Dep. at 16).
Finkbiner was hired by Trans-United earlier in 2012; at the time of hire, Trans-United
performed a background check, a motor vehicle report (“MVR”) check – a summary of a driver’s
past citations or accidents, contacted prior employers, completed load securement, permit, escort,
and other written testing, completed a pre-employment drug screen, and had Finkbiner watch
safety videos and discuss safety protocols. (Boo Dep. at 9-12). Finkbiner testified at the time of
the accident he had no restrictions on his license, he had never had his CDL suspended, and had
never had any accidents in a semi-truck. (Finkbiner Dep. at 35).
Trans-United’s policy is to only review the prior three years of an applicant’s MVR, (Boo
Dep. at 13) despite having knowledge of an applicant’s entire MVR (Boo Dep. at 13).
Finkbiner’s MVR dates back to 1987, when he began his commercial driving career, and
included over twenty entries. (Doc. 62, Ex. 1).
STANDARD OF REVIEW
Pursuant to Federal Civil Rule 56(a), summary judgment is appropriate where there is
“no genuine issue as to any material fact” and “the moving party is entitled to judgment as a
matter of law.” Id. When considering a motion for summary judgment, the Court must draw all
inferences from the record in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party
must do more than “simply show that there is some metaphysical doubt as to the material facts.”
Id. at 586. The Court is not permitted to weigh the evidence or determine the truth of any matter
in dispute; rather, the Court determines only whether the case contains sufficient evidence from
which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc.,
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477 U.S. 242, 248–49 (1986). This burden “may be discharged by ‘showing’ – that is, pointing
out to the district court – that there is an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Defendants seek summary judgment on Plaintiff’s claims brought under Ohio law. In
reviewing a claim under Ohio law, this Court must interpret Ohio law consistent with the
interpretations of the Supreme Court of Ohio. Northland Ins. Co. v. Guardsman Prods. Inc ., 141
F.3d 612, 617 (6th Cir. 1998). Specifically, this Court must apply the substantive law of Ohio
“‘in accordance with the then-controlling decision of the highest court of the State.’” Imperial
Hotels Corp. v. Dore, 257 F.3d 615, 620 (6th Cir. 2001) (quoting Pedigo v. UNUM Life Ins. Co.,
145 F.3d 804, 808 (6th Cir. 1998). Also, to the extent that the highest court in Ohio has not
addressed the issue presented, this Court must anticipate how Ohio's highest court would rule. Id.
(quoting Bailey Farms, Inc. v. NOR—AM Chem. Co., 27 F.3d 188, 191 (6th Cir. 1994)).
ANALYSIS
Defendants raised three grounds for partial summary judgment: (1) Plaintiff cannot prove
the legal requirements of a negligent hiring claim; (2) there is no evidence Finkbiner acted
maliciously at any point and, thus, a claim for punitive damages cannot be supported; and (3)
there is no evidence that Trans-United authorized Finkbiner’s conduct either on the day of, or
after the accident thus, punitive damages are not available. The Court will first discuss the
arguments as to punitive damages and then proceed into a discussion of the claim for negligent
hiring.

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Punitive Damages Against Finkbiner
Under Ohio law, punitive damages may be awarded in tort claims only upon a finding of
actual malice, fraud, or insult on the part of the defendant. R.C. § 2315.21; see Estate of Beavers
v. Knapp, 175 Ohio App.3d 758 (2008). For punitive damages to be appropriate, “something
more than mere negligence is always required.” Id. at 335. Substantial harm must be a near
certain consequence of the defendant’s actions. See Motorists Mut. Inc. Co. v. Said, 63 Ohio St.
3d 690 (1992). “Any less callous mental state is insufficient to incur that level of societal outrage
necessary to justify an award of punitive damages. Therefore, it is evident that a reckless actor,
who only has knowledge of the mere possibility that his or her actions may result in substantial
harm, is not behaving maliciously.” Kuebler v. Gemini Transp., 2013 WL 6410608, *5 (S.D.
Ohio) (quoting Motorists Mut. Inc., 63 Ohio St. 3d 690).
Because R.C. § 2315.21 does not define malice, the Supreme Court of Ohio applies the
definition of actual malice set forth in Preston v. Murty, 32 Ohio St.3d 334 (1987), to punitivedamage claims. Malone v. Courtyard by Marriott Ltd. Partnership, 74 Ohio St.3d 440 (1996).
Thus, for purposes of punitive damages, malice is “(1) that state of mind under which a person's
conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for
the rights and safety of other persons that has a great probability of causing substantial harm.”
Preston, 32 Ohio St.3d at 334. A party seeking punitive damages bears the burden of proving
malice with clear and convincing evidence. R.C. § 2315.21(D)(1)(4).
Plaintiff’s claims for punitive damages rest on the second definition, a “conscious
disregard for the rights and safety of other persons that has a great probability of causing
substantial harm.” Thus, the Court must determine if reasonable jurors could differ as to whether

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Finkbiner knew his conduct, i.e. his manner of driving and actions afterward, had a great
probability of causing substantial harm and whether he consciously disregarded that probability.
Defendants assert there is no evidence that Finkbiner was speeding, driving erratically,
distracted, or driving under the influence of drugs or alcohol at the time of the accident. (Doc.
53, at 18). This assertion is uncontested. Rather, Plaintiff alleges it is Finkbiner’s post-accident
conduct, i.e. his decision to leave the scene of the accident, which shows a conscious disregard
for Plaintiff. (Doc. 62, at 14). And although, Finkbiner asserts he was unaware he had hit
Plaintiff’s car, he did admit he felt something which affected his ability to control the truck.
(Finkbiner Dep. at 22). Thus, it is possible for a jury to infer Finkbiner decided not to stop after
the accident. It is from this inference that the Plaintiff asks the Court to allow the jury to infer
malice. (Doc. 62, at 14-15).
In order for Plaintiff to prove malice, evidence must go to Finkbiner’s state of mind prior
to the accident. As already stated, there is no indication of malice prior to the accident. “The only
evidence plaintiff has is a string of evidence from which one could possibly conclude that
[defendant] knowingly fled the scene after the accident. Standing alone, this is insufficient.”
Kuebler v. Gemini Transp., 2013 WL 6410608, at *6 (S.D. Ohio). In Kuebler, the court found
in the presence of other aggravating factors “defendant’s flight would be momentous [but]
standing alone, it is nothing.” Id. As here, the only evidence Plaintiff asserts as evidence of
malice is Finkbiner’s alleged flight from the scene of the accident. On its own, this is inadequate
to support a finding of punitive damages. Thus, Defendants’ motion for partial summary
judgment on Plaintiff’s claim for punitive damages resulting from Finkbiner’s actions on the day
of the accident is granted.

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Punitive Damages Against Trans-United, Inc.
Punitive damages can be awarded against an employer in a tort action where either the
employer’s action demonstrated malice or fraud, or the employer authorized, participated in, or
ratified malicious actions by its employees. R.C. § 2315.21(C)(1). Defendants requested
summary judgment on Plaintiff’s punitive damages claim against Trans-United because it did not
authorize, participate in, or ratify Finkbiner’s actions. (Doc. 53, at 14-16).
In opposition, Plaintiff argues authorization, participation, or ratification is not required
when an employee acts within the scope of his employment. (Doc. 62, at 16); See Fulwiler v.
Schneider, 104 Ohio App.3d 398, 406 (1995). Instead she asserts, if an employee acts within the
scope of his employment, the employer implicitly authorizes the action and thus, respondeat
superior liability applies. (Doc. 62, at 16-18). However, the Plaintiff misconstrues the finding in
Fulwiler. It does not stand for the proposition that a Plaintiff need not prove authorization,
participation, or ratification; but rather that a plaintiff need not prove both scope and ratification
because an employee could be acting outside the scope of their employment and the employer
could authorize, participate, or ratify the actions. See Estate of Beavers v. Knapp, 175 Ohio
App.3d, 758, 774-83 (2008) (discussing Ohio precedent on the topic of punitive damages for
employers); Boyd v. Smith, 2014 WL 1050080, at *9-10 (S.D. Ohio). Ohio law requires
authorization, participation, or ratification by an employer and not just actionable conduct
undertaken while in the scope of employment before an award of punitive damages against the
employer can be contemplated. Id.
That being so, Plaintiff failed to argue or present any evidence that Trans-United
authorized, participated, or ratified Finkbiner’s actions after the accident, which, in any event,

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the Court has already determined did not rise to the level of malice. The record shows after
learning of the accident from Finkbiner, Trans-United ordered him to complete post-accident
drug and alcohol testing, ordered Finkbiner to complete a written statement, and photographed
the tractor and trailer the day after the accident. (Boo Dep. at 15-18). There is no evidence TransUnited acted in any way contrary to Plaintiff’s interests or the law in its handling of the accident.
The only evidence Trans-United may have ratified Finkbiner’s action was that it did not
terminate him after the accident, but rather allowed him to voluntary resign. (Finkbiner Dep. at
19); Fulwiler, 104 Ohio App.3d at 407 (citing Saberton v. Greenwald, 146 Ohio St. 414, 430-31
(1946) (“the fact that the master discharged the servant on learning of his act may show his
disapproval of the servant’s conduct and relieve him from liability for exemplary damages.”); but
see Fisher v. Hering, 88 Ohio App. 107, 112 (1948) (finding the continued employment of an
individual who committed a tort is not, in and of itself, enough to show ratification by an
employer).
While slight acts of ratification are sufficient to support claims for punitive damages,
“ratification is to be inferred only from acts which evince an intention to ratify, and not from acts
which may be readily and satisfactorily explained without involving intention to ratify.”
Saberton, 146 Ohio St. at 430. Here, there is scant evidence that Trans-United ratified
Finkbiner’s acts and even if its decision to allow voluntary resignation was considered such that
decision may be readily and satisfactorily explained by other legitimate reasons besides
ratification. Thus, Trans-United is entitled to judgment as a matter of law with regard to punitive
damages resulting from the accident because no reasonable juror could find Trans-United
authorized, participated in, or ratified Finkbiner’s post-accident conduct.

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Negligent Hiring
In Ohio, negligent hiring, supervision, and retention are separate and distinct torts from
other theories of recovery such as respondeat superior; and an employer can be held
independently liable for negligently hiring, supervising, or retaining an employee. Simpkins v.
Grace Brethren Church of Delaware, 16 N.E.3d 687, 702 (Ohio App. 2014). As a separate cause
of action it can produce a distinct injury, but only if Plaintiff can prove a separate injury apart
from the underlying tort. Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 572 (2009).
The elements of a claim of negligent hiring, supervision, training, or retention under Ohio
law are:
1.
2.
3.
4.
5.

the existence of an employment relationship;
the employee’s incompetence;
the employer’s actual or constructive knowledge of such incompetence;
the employee’s act causing the plaintiff’s injuries; and
the employer’s negligence in hiring, supervising, training, and/or retaining the
employee as the proximate cause of the plaintiff’s injuries.

Ruta v. Breckingridge-Remy Co., 69 Ohio St.2d 66, 69 (1982); Zanni v. Stelzer, 174 Ohio
App.3d 84, 86-87 (2007).
The primary issue in a negligent hiring case is whether the employer knew or should have
known of the employee’s criminal or tortious propensities. Byrd v. Faber, 57 Ohio St.3d 56, 62
(1991). Then knowing of these propensities, would a reasonably prudent person foresee the
employee’s misconduct, Evans v. Ohio State Univ., 112 Ohio App.3d 724, 740–43 (1996), such
that it should have prevented the employment relationship. Stephens v. A-Able Rents Co., 101
Ohio App.3d 20, 26 (1995). When determining the foreseeability of a criminal act, a court must
look at the totality of the circumstances, and only when the circumstances are somewhat

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overwhelming can an employer be held liable. Prewitt v. Alexson Servs., Inc., 2008 WL
3893575, at *6 (Ohio App.) (citing Evans, 112 Ohio App.3d at 742).
In reviewing the evidence submitted by the parties in support of their positions, the Court
finds no reasonable juror could conclude Trans-United is liable for negligent hiring. Prior to
employing Finkbiner, Trans-United performed all the necessary background checks, tests, and
inquiries one would expect of a prospective employer. See Knapp, 175 Ohio App.3d at 784
(finding no error in a jury’s decision not to find negligent hiring even where employer failed to
perform a background check). Trans-United ran a background check, an MVR, contacted prior
employers, submitted Finkbiner to numerous written and practical tests, made him watch safety
videos, and subjected him to a drug test. (Boo Dep. 8-13). Furthermore, Finkbiner had been a
licensed commercial driver since 1987 and had never been in an accident or had his license
restricted or suspended. (Finkbiner Dep. at 35).
The only evidence that Trans-United was negligent arises from Plaintiff’s claim that
Trans-United ignored Finkbiner’s past driving record, which included approximately twenty
citations since 1987, and instead only reviewed the last three years. (Doc. 62 at 11-13);(Boo Dep.
at 11-13). However, an employer’s decision to review recent driving history alone does not prove
negligence. See Boyd v. Smith, 2014 WL 1050080, at *5 (S.D. Ohio) (granting summary
judgment on negligent hiring claim when background check showed no accidents, citations, or
forfeitures in the past three years); see also Ball v. Stark, 2013 WL 209123, at *19 (Ohio App.)
(finding summary judgment appropriate given defendant’s more immediate clean driving record;
remote incidents do not go to the foreseeability of conduct). Nor could Finkbiner’s prior three
years driving history indicate to a reasonably prudent person that he would be involved in an
accident. In fact in the three years prior to his employment with Trans-United, Finkbiner had

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only been cited twice, once for Traffic – Control Violation and once for Equipment Used
Improperly. (Doc. 62, Ex. 1). Thus considering the above, the Court finds no genuine issue of
material fact exists that could prove Trans-United was liable for negligently hiring Finkbiner. As
such, summary judgment is appropriate.
Even if Plaintiff’s negligent hiring claim survived summary judgment, it is moot.
Normally, negligent hiring would provide a separate road to recovery for a plaintiff. But where
the underlying negligent act has been admitted, the cause of action is moot because liability for
the plaintiff’s recoverable injury has already been accepted. Here, Plaintiff has asserted no
evidence of separate injury besides that caused by the accident and Trans-United has already
accepted liability, via respondeat superior, for the entirety of Plaintiff’s proximately caused
injuries. Therefore, there is no distinct injury upon which Plaintiff could recover separate
compensatory damages.
Furthermore, even if the negligent hiring claim was allowed to proceed as a basis for
punitive damages against Trans-United; the Court finds no reasonable juror could attribute actual
malice to Trans-United’s decision to hire Finkbiner. While negligent hiring may be the basis for
punitive damages, Columbus Ry. Power & Light Co. v. Harrison, 109 Ohio St. 526 (1924), a
mere finding of negligence is not sufficient; actual malice must be established. Stephens v. AAble Rents Co., 101 Ohio App.3d 20, 28 (1995). Even under the more liberal definition of
malice, i.e., a “conscious disregard for the rights and safety of other persons that has a great
probability of causing substantial harm”, Plaintiff cannot satisfy her burden. Preston, 32 Ohio
St. at 334.
To be awarded punitive damages Plaintiff must be able to prove by clear and convincing
evidence that Trans-United’s decision to hire Finkbiner was so “callous in its disregard for the

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rights and safety of others that society deems it intolerable.” Calmes v. Goodyear Tire Rubber
Co., 61 Ohio St.3d 470, 473 (1991). In this case, the evidence does not support such a finding. In
25 years of commercial driving, Finkbiner had never been involved in an accident in a truck and
no reasonable juror could find that Trans-United’s hiring of Finkbiner had a near-certain
consequence of causing Plaintiff’s injuries. Instead, the evidence demonstrates Trans-United
acted with reasonable due care in investigating Finkbiner’s past employment and driving record.
See Kuebler, 2014 WL 6410608, at *7; MacNeill, 917 F.Supp.2d at 732 (cases finding punitive
damages against employer’s were not appropriate on claims of negligent hiring where
experienced drivers’ records were unremarkable). Accordingly, a finding of punitive damages
could not be supported.
Therefore for the reasons stated above, Trans-United’s motion for partial summary
judgment on the negligent hiring claim is granted. No reasonable juror could conclude it was
negligent to hire Finkbiner. Considering Trans-United has accepted liability for Finkbiner’s
conduct, a claim for negligent hiring is moot. And even if this is incorrect, there is no proof of
separately recoverable compensable damages apart from the injury from the accident.
Furthermore to the extent punitive damages could be recoverable under a theory of negligent
hiring, the facts of this case indicate no reasonable juror could conclude Trans-United’s decision
to hire Finkbiner was characterized by actual malice. Thus, evidence of negligent hiring only
serves to prejudice the Defendant and inflame the jury.

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CONCLUSION
For the reasons stated above and consistent with this Opinion and Order, Defendants’
motion for partial summary judgment is granted.
IT IS SO ORDERED.
s/James R. Knepp, II
United States Magistrate Judge

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