Hayes v. Goldstein , 120 Ohio App. 3d 116 ( 1997 )

I respectfully dissent from the majority for the following reasons. In the case sub judice, the trial court held that Michael Cole was working for appellant ABC Bail Bonds as an independent contractor and that appellant did not exert direct control over Cole's work or actions. However, the trial court held appellant jointly and severally liable for the wrongful acts of Cole as it found that the apprehension of a fugitive is a nondelegable duty by nature. I disagree.

As the majority has stated, there exists a well-established principle of law that an employer is not liable for the acts of an independent contractor. However, there are a few exceptions to this rule, which are to be narrowly construed. In this case, the issue involves the "nondelegable duty" exception, i.e., an employer may be held to duties which he cannot delegate to another. See Strayer v. Lindeman (1981), 68 Ohio St. 2d 32, 34, 22 O.O.3d 159, 160-161, 427 N.E.2d 781, 783-784; Lynch v. KarasTrucking, Inc. (July 8, 1993), Cuyahoga App. No. 62606, unreported, 1993 WL 259576.

The magistrate, and ultimately the trial court, reasoned that the actions of a bail enforcement agent are nondelegable for the following reasons:

"As to Defendant Jeff Goldstein dba ABC Bail Bonds, the Court finds that Defendant Cole was an independent contractor and that ABC Bail Bonds exerted no direct control over the manner of Defendant Cole's work. Under normal circumstances this independent agency relationship would shield Defendant ABC Bail Bonds from any vicarious liability. However, the undertaking is personal in nature. In other words, the bondsman acquires complete control over the physical person of the fugitive. These are not the typical rights in tangible or intangible assets or chattel. On the contrary, as the Court in [Taylor v. Taintor (1872), 83 U.S. (16 Wall.) 366 [21 L. Ed. 287]] stated, `The sureties had control of [the fugitive's] person' and its `dominion was a continuance of [the fugitive's] original imprisonment.' This Court holds that this is a non-transferable or non-delegable right, and thus Defendant Jeff Goldstein may not escape liability on an independent-contractor theory."

However, the central issue in Taylor, supra, was the forfeiture of a prisoner from one state to another. The language concerning the nature of bail and/or the control over a fugitive is mere dicta and cannot be considered binding precedent upon this court. Moreover, I do not believe that the act of exerting "complete control" over a fugitive in and by itself necessitates its designation as nondelegable.

This conclusion may seem at odds with a case the majority places great emphasis upon, Szymanski v. Great Atlantic Pacific Tea Co. (1947), 79 Ohio App. 407, 35 Ohio Op. 177,74 N.E.2d 205. In that case the Court of Appeals for Lucas County held that "[d]ue to the personal character of the services performed by a store detective whose duty it is to apprehend shoplifters, the store owner cannot delegate such duty to an independent contractor and thereby be relieved of liability to his customers for illegal acts of such detective." Id. at paragraph two of the syllabus.

However, that case dealt with the ability of a store owner to delegate his statutorily imposed duty owed to his business invitees. In this case, there is no duty of care imposed by statute upon a bail bondsman. To invoke the nondelegable-duty exception to acts merely because they are personal in nature would allow the exception to swallow up the general rule regarding independent contractor liability.

Rather, I believe that a more rational approach is to analyze the nature of the work and/or duty performed by the independent contractor as opposed to the degree to which the work affects a third party. More specifically, I believe that the important distinction when determining whether an act is delegable is between work that is inherently dangerous by its very nature and work that is dangerous only when performed in a negligent and/or reckless manner. See Albain v. Flower Hosp. (1990), 50 Ohio St. 3d 251,261, 553 N.E.2d 1038, 1047-1048; Newsome v.Longstaffe (Jan. 22, 1988), Ashtabula App. No. 1312, unreported;Joseph v. Consol. Rail Corp. (Oct. 30, 1987), Butler App. No. CA87-05-065, unreported, 1987 WL 19481; Amurri v. Columbus (Feb. 28, 1985), Franklin App. Nos. 84AP-597, 84AP-598, 84AP-618, 84AP-681, 84AP-619 and 84AP-682, unreported, 1985 WL 9634.

For example, Ohio courts have recognized inherently dangerous work to include the operation of a burning dump, Newcomb v.Dredge (1957), 105 Ohio App. 417, 6 O.O.2d 178, 152 N.E.2d 801; the demolition of a burned-out building, Covington Cincinnati Bridge Co. v.Steinbrock Patrick (1899), 61 Ohio St. 215, 55 N.E. 618; excavating portions of a public sidewalk, Hawver v. Whalen (1892), 49 Ohio St. 69, 29 N.E. 1049; and working around powerful electric fields, Gordon v. Ponderosa, Inc. (Apr. 26, 1991), Portage App. No. 90-P-2195, unreported, 1991 WL 70114.

I would agree with appellant that, by their very nature, the actions of a bail enforcement agent are not inherently dangerous. It is only when the agent acts in a negligent and/or dangerous manner that harm can occur. Since the actions of a bail enforcement agent do not involve the type of risks and precautions required as contemplated by the nondelegable exception, the appellant cannot be held jointly and severally liable for the wrongful actions of the independent contractor. For these reasons, I respectfully dissent.