PUSEY, EXR., APPELLANT, v. BATOR ET AL.; GREIF BROTHERS CORPORATION, APPELLEE. [Cite as Pusey v. Bator (2002), 94 Ohio St.3d 275.] Torts — Wrongful death — Employer hires independent contractor to provide armed security guards to protect property — Inherently dangerous work exception — If someone is injured by weapon as a result of a guard’s negligence, employer is vicariously liable even though guard responsible is an employee of the independent contractor. (No. 00-1787 — Submitted October 30, 2001 — Decided February 27, 2002.) APPEAL from the Court of Appeals for Mahoning County, No. 98 C.A. 55. __________________ SYLLABUS OF THE COURT When an employer hires an independent contractor to provide armed security guards to protect property, the inherently-dangerous-work exception is triggered such that if someone is injured by the weapon as a result of a guard’s negligence, the employer is vicariously liable even though the guard responsible is an employee of the independent contractor. __________________ DOUGLAS, J. At all times relevant herein, defendant-appellee, Greif
Brothers Corporation, a steel drum manufacturer, owned and operated a manufacturing plant in Youngstown, Ohio. In 1987, Greif Brothers experienced several incidents wherein trespassers stole property from its parking lot. As a result of these incidents, Lowell Wilson, the superintendent at Greif Brothers’ Youngstown plant, decided to hire a security company to guard Greif Brothers’ property.
SUPREME COURT OF OHIO
In April 1987, Wilson, on behalf of Greif Brothers, entered into a contract with Youngstown Security Patrol, Inc. (“YSP”) to supply a uniformed security guard to “deter theft [and] vandalism” on Greif Brothers’ property during specified hours. Wilson told YSP’s owner and president, Carl Testa, that he wanted the security guard to periodically check the parking lot and the inside of the building. Other than those instructions, Wilson did not instruct Testa in the manner that YSP was to protect Greif Brothers’ property. The written security contract did not specify whether the guard was to be armed or unarmed, and Wilson and Testa both later testified that they never discussed the subject. At least some of the YSP security guards that were
assigned to watch Greif Brothers’ property carried firearms. Wilson was aware of this because he noticed that the guards wore holsters and guns as part of their uniform. In addition, Wilson was aware of an incident in which a YSP guard discharged his weapon in the manufacturing plant while apparently using one of Greif Brothers’ steel drums for target practice. Although Wilson complained to Testa about the damage, he did not indicate that the security guards should not carry firearms while protecting Greif Brothers’ property. On June 30, 1991, Testa hired Eric Bator as a YSP security guard. Notes written on the bottom of Bator’s application indicate that Bator was hired as an unarmed guard but that he would take the necessary training required by the state to become certified as an armed guard. Nevertheless, because he felt uneasy performing his security duties without a weapon, Bator took his gun, in a briefcase, to work with him. Bator testified that his supervisor, Bill Kissinger, knew that Bator carried a gun while working as a YSP guard and that Bator was not licensed to work as an armed guard. Kissinger testified that he had seen Bator’s gun but denied knowing that Bator carried the gun while working as a YSP guard.
January Term, 2002
YSP employed several security guards but only one guard per shift was assigned to guard Greif Brothers’ property. Bator was the guard assigned to Greif Brothers’ property from 11:00 p.m., August 11 to 7:00 a.m., August 12, 1991. At approximately 1:00 a.m., Bator looked out through a window in the guard office and saw two individuals, later identified as Derrell Pusey and Charles Thomas,...