[Cite as Ponyicky v. Schemrich,

.]

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

JAMES PONYICKY, et al. C.A. No. 13CA0039-M

Appellees

v. APPEAL FROM JUDGMENT ENTERED IN THE CITY OF BRUNSWICK, et al. COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellants CASE No. 12CIV0736

DECISION AND JOURNAL ENTRY

Dated: August 18, 2014

CARR, Judge.

{¶1} Defendant-Appellant, the City of Brunswick (“the City”), appeals from the

decision of the Medina County Court of Common Pleas in favor of Plaintiffs-Appellees, James

and Cindy Ponyicky (“the Ponyickys”). This Court affirms.

I.

{¶2} On the morning of May 22, 2010, a bus owned by the City and operated by

Crystal Schemrich collided with the back of a car driven by Mr. Ponyicky. Mr. Ponyicky was

injured as a result of the accident, and the City, via Schemrich, was cited for failing to maintain

an assured clear distance.

{¶3} The Ponyickys brought suit against the City and Schemrich for negligent

operation and loss of consortium.1 Schemrich filed a motion for judgment on the pleadings,

1 The Ponyickys later added a claim for negligent maintenance, but the instant appeal does not involve that additional claim. 2

arguing that she was immune from suit due to her status as an employee of a political

subdivision. Schemrich specified that she was not an employee of the City, but was still an

employee of a political subdivision. She later identified her employer as Medina County Public

Transit (“Medina Transit”). The Ponyickys ultimately conceded that Schemrich was immune

from suit regardless of which political subdivision was her employer. The trial court, therefore,

granted Schemrich’s motion and dismissed her from the litigation.

{¶4} Subsequently, the City filed a motion for summary judgment, arguing that it was

immune from suit without exception because Schemrich was not its employee. The City argued

that Schemrich was the employee of Medina Transit, an independent contractor for the City. The

Ponyickys filed a brief in opposition, arguing that genuine issues of material fact existed as to

whether Schemrich was the City’s employee. The City filed a reply brief, and the Ponyickys

filed a surreply. The trial court determined that genuine issues of material fact existed for trial

and denied the City’s motion.

{¶5} The City now appeals from the court’s decision and raises one assignment of error

for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY DENYING APPELLANT/DEFENDANT CITY OF BRUNSWICK THE BENEFIT OF IMMUNITY UNDER OHIO’S POLITICAL SUBDIVISION TORT LIABILITY ACT.

{¶6} In its sole assignment of error, the City argues that the trial court erred by denying

its motion for summary judgment. Specifically, it argues that it was immune from the

Ponyickys’ negligent operation claim as a matter of law because Schemrich was not its 3

employee. We do not agree that the trial court erred by denying the City’s motion for summary

judgment.

{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co.,

(6th Dist. 1983).

{¶8} 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 for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977).

{¶9} 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).

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).

Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins,

(1996). 4

{¶10} As a general rule, political subdivisions are “not liable in damages in a civil action

for injury, death, or loss to person or property allegedly caused by any act or omission of the

political subdivision or an employee of the political subdivision in connection with a

governmental or proprietary function.” R.C. 2744.02(A)(1). This immunity, however, is subject

to the exceptions described in R.C. 2744.02(B). One of those exceptions provides that “political

subdivisions are liable for injury * * * or loss to person or property caused by the negligent

operation of any motor vehicle by their employees when the employees are engaged within the

scope of their employment and authority.” R.C. 2744.02(B)(1). “‘Employee’ means an officer,

agent, employee, or servant, whether or not compensated or full-time or part-time, who is

authorized to act and is acting within the scope of the officer’s, agent’s, employee’s, or servant’s

employment for a political subdivision.” R.C. 2744.01(B). Independent contractors are not

employees for purposes of the immunity statute.

{¶11} “The chief test in determining whether one is an employee or an independent

contractor is the right to control the manner or means of performing the work.” State ex rel.

Nese v. State Teachers Retirement Bd. of Ohio,

,

,

quoting Bobik v. Indus. Comm.,

(1946), paragraph one of the syllabus. The

right to control is not simply the right to accept or reject the final work product, but the right to

direct “the details or method of doing the work.” Gillum v. Indus. Comm.,

(1943), quoting 27 American Jurisprudence, Section 7, at 488.

The determination of who has the right to control must be made by examining the individual facts of each case. The factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes travelled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts. 5

Bostic v. Connor,

(1988). “If such right is in the employer, the

relationship is that of employer and employee; but if the manner or means of performing the

work is left to one responsible to the employer for the result alone, an independent contractor

relationship is created.” Pusey v. Bator,

(2002).

{¶12} “Whether someone is an employee or an independent contractor is ordinarily an

issue to be decided by the trier of fact.” Bostic at paragraph one of the syllabus. Accord Behner

v. Indus. Comm.,

(1951), paragraph one of the syllabus. A trial court may

decide the issue as a matter of law if “the evidence is not in conflict or the facts are admitted.”

. If there is some evidence that a person is an employee and not an independent

contractor, however, the issue is one for a jury.

. Accord Zacharias v. Ampco

Systems Parking, 9th Dist. Summit No. 18672,

, *3 (June 10, 1998) (summary

judgment inappropriate where contractual language created issue of fact regarding whether

company operated political subdivision’s parking garage as an employee or an independent

contractor).

{¶13} In support of its motion for summary judgment, the City relied upon the affidavit

of Holly Muren. Muren identified herself as the Human Resources Manager for the Medina

County Board of Commissioners. She averred that she had reviewed Medina County’s records

and had personal knowledge that, at the time Schemrich was driving the bus that struck Mr.

Ponyicky, Schemrich was an employee of Medina County.

{¶14} In opposing the City’s motion, the Ponyickys pointed to the language of the

contract between the City and Medina Transit, as well as the deposition testimony of Schemrich

and Sam Scaffide, the City’s former service director. The Ponyickys argued that summary 6

judgment was inappropriate because the foregoing evidence raised at least a genuine issue of

material fact as to Schemrich’s employment status at the time of the accident.

{¶15} Scaffide testified that, during his eight years with the City, the City contracted

with two different entities to secure drivers for the Brunswick Transit Alternative2 (“the BTA”),

the City’s bus system. The first entity was Buckeye Transit. The second, Medina Transit, took

over in January 2010 when it outbid Buckeye Transit. Scaffide acknowledged that, when

Medina Transit won the bid, the City suggested that it hire the existing drivers. Several of the

existing drivers were, in fact, hired, but Scaffide insisted that the drivers were not employees of

the City. Scaffide testified that the City owned the buses, maintained and repaired the buses,

owned the garage where the buses were stored, and set the bus routes and schedules, but did not

have any control over the actual drivers. He conceded, however, that the City required the

drivers to arrive a minimum of 20 minutes before their scheduled shift to perform pre-trip

inspections and safety checks. He also acknowledged that the City’s contract with Medina

Transit required drivers to adhere to a dress code and provided that the City had to “approve all

drivers in advance of their operation of route service.” Moreover, Scaffide agreed that, on at

least one occasion, Medina Transit had removed a driver at the City’s request.

{¶16} Schemrich testified that she had ten years’ worth of experience driving buses for

the BTA and was hired by Medina Transit after it outbid Buckeye Transit. She testified that

there were seven drivers for the BTA and that they were “[p]retty much” all the same drivers

who had driven for the BTA before the contract went to Medina Transit. Schemrich faxed her

2 In multiple places in the record, the City’s bus system is alternatively referred to as the Brunswick Transit Authority. 7

time sheets to Medina County and received her paychecks from Medina Transit. She also

testified that Medina Transit provided her with vision benefits, sent her to SUMMA to obtain a

physical/wellness card, and issued her a Medina Transit identification badge. Nevertheless,

Schemrich testified that she received her training from the BTA and that Medina Transit never

conducted any additional training.

{¶17} The contract between the City and Medina Transit sets forth the BTA bus route

and schedule in explicit detail. It provides that the BTA

consists of a fixed route circulator/loop system, operating two routes simultaneously * * *. The service will operate using buses of 16 or 22-30 passenger capacity between the hours of 6:20 a.m. and 7:20 p.m., Monday through Friday. Saturday service operates from 10:20 a.m. – 5:20 p.m. The routes will be approximately 12-19 miles in length and are expected to operate on headways of 50-55 minutes each. Each route will be covered by 26 runs a day, (excluding Saturdays) resulting in approximately 400 total miles of service each day.

The contract also provides that “[o]verall supervision and administration of the system will be

provided by the City * * *.”

{¶18} According to the contract, Medina Transit was responsible “for hiring, paying,

supervising, and disciplining personnel for the purposes of operating the fixed route bus service.”

Nevertheless, the contract requires drivers to arrive on site at least 20 minutes before their shift

to complete pre-trip inspections and safety checks and to “adhere to a dress code specified by the

City.” It also requires Medina Transit (1) to appoint a manager or lead driver to “be responsible

to both [Medina Transit] and appropriate City personnel for all daily contracted services”; and

(2) to “administer[] a progressive discipline system to deal with and/or eliminate any problem

drivers.” Per the contract, the progressive discipline system had to include measures to address

specific violations by drivers, including vehicle accidents, cellular phone use for personal

reasons while operating the bus, early or late operation, unexcused absences, and complaints for 8

discourteous behavior, unsafe driving, and the like. Further, the contract gives the City the right

to “approve of all drivers in advance of their operation of route service” and requires Medina

Transit to provide the City with copies of the drivers’ driving records and licenses.

{¶19} The contract requires Medina Transit to operate the City’s buses on a fixed route

according to the routes and schedules that the City establishes. It does not permit drivers to

deviate from the fixed route established by the City. In fact, the contract establishes a

performance requirement program under which the City may penalize Medina Transit financially

for any substandard performances. An unauthorized deviation from the City’s route is one

category under which the City may impose a financial penalty. Other categories include missed

runs, late runs, missed transfer connections, and noncompliance with the dress code.

{¶20} Under the contract, Medina Transit was responsible for obtaining liability

insurance naming the City as an additional insured interest, as well as collision and

comprehensive damage coverage. It also was required to indemnify the City for claims brought

by third parties that arose out of its performance or nonperformance of the contract.

Additionally, Medina Transit agreed to secure and maintain workers’ compensation insurance for

the drivers.

{¶21} The trial court determined that the City was not entitled to summary judgment

because “genuine issues of material fact are present with regards to whether Ms. Schemrich was

an independent contractor or an employee of the City * * *.” The City argues that the court erred

in its determination because the facts underlying this case are undisputed. Given that the facts

are undisputed, the City avers, the court erred by not deciding, as a matter of law, that Schemrich

was an independent contractor. 9

{¶22} The City argues that Schemrich was an independent contractor, as evidenced by

the fact that Medina Transit hired her, paid her, provided her with insurance, and supervised her.

The City argues that its contract with Medina Transit did not create an employer-employee

relationship. Rather, it set forth guidelines and requirements that would allow the City to

achieve a certain result; a bus service that operated on time and was in accordance with the law

and the City’s program. The City maintains that it “did not control the actual work [Medina

Transit] hired [Schemrich] to do (driving).”

{¶23} As set forth above, the issue of “[w]hether someone is an employee or an

independent contractor is ordinarily an issue to be decided by the trier of fact.” Bostic,

, at paragraph one of the syllabus. The issue becomes one of law only when “the

evidence is not in conflict or the facts are admitted.”

. If there is some evidence that a

person is an employee and not an independent contractor, the issue is one for a jury.

at 146-

147. The case of Bostic is instructive.

{¶24} Bostic was a truck driver who agreed to haul freight for a trucking company in

return for a percentage of the gross revenue the trucking company would receive for the delivery.

Bostic agreed to use his own tractor and trailer to deliver the freight, but his tractor broke down

en route to delivery. He left the trailer and freight at the site of the breakdown and had his

tractor towed back to the trucking company. He and the trucking company then agreed that he

could use one of the trucking company’s tractors to finish the trip in exchange for a reduced

profit. The trucking company gave Bostic two credit cards to use towards gasoline or repairs, if

the need arose, and instructed Bostic to return immediately after making the delivery.

Additionally, the trucking company and Bostic, who was a former employee, discussed the

possibility of rehiring him as a full-time employee. No decisions were made, however, and 10

Bostic took the tractor home for the night. He was fatally injured when he resumed his trip the

following day and his tractor veered off the highway.

{¶25} After the Industrial Commission allowed Bostic’s family’s claim for death

benefits, the trucking company appealed.

. The court of common pleas refused to enter

summary judgment on the issue of whether Bostic was an independent contractor or the trucking

company’s employee at the time of his death.

. The issue was submitted to the jury,

and Bostic’s family prevailed. On later appeal to the Supreme Court, the trucking company

argued that the lower court had erred by not deciding as a matter of law that Bostic was an

independent contractor, based on the undisputed facts in the case.

The Supreme Court

disagreed, noting that reasonable minds could “differ on the issue of who had the right to control

the manner or means of doing the work.”

. The Supreme Court held:

Our review of the record reveals that there was evidence from which the jury could reasonably infer that Bostic was either an employee or an independent contractor.

On one hand, evidence was presented which tends to prove Bostic had the right to control the manner or means of doing his job. Bostic’s original agreement with [the trucking company] was in the form of a lease agreement rather than a union contract between [the trucking company] and its employees. [Bostic] was not a member of the union to which [the trucking company’s] employees belonged. He began to make the delivery with his own tractor. He did not fill out the health insurance forms required of [the trucking company’s] employees. He did not agree to become [the trucking company’s] full-time employee again in his discussion of the matter * * *. The jury could reasonably conclude from this evidence that Bostic was an independent contractor.

On the other hand, evidence was presented which tends to indicate that [the trucking company] had the right to control the manner or means by which Bostic did his work. At the time of the accident, Bostic was using [the trucking company’s] tractor-trailer. The amended agreement between Bostic and [the trucking company] provided that, for the second half of the haul, Bostic would be paid the same percentage of gross revenue as any other employee. [The trucking company] provided Bostic with credit cards. [It] paid Bostic with an employee payroll check, rather than the kind of check [it] used to pay independent contractors. [It] withheld taxes from Bostic’s pay. [It] gave Bostic specific 11

instructions to return immediately after the delivery without soliciting a return cargo. From this evidence, the jury could reasonably infer that Bostic was [the trucking company’s] employee.

Construing the evidence most strongly in [Bostic’s] favor, we cannot say the trial court erred in denying [the trucking company’s] motion for summary judgment.

. Although Bostic was a workers’ compensation case, the Ohio Supreme Court has not

limited it to cases arising out of that context. See, e.g., State ex rel Nese,

,

(Bostic relied upon as portion of the common law test for determining

whether a person is an employee or independent contractor).

{¶26} Having reviewed the record, we must conclude that summary judgment would not

have been appropriate in this case. On the one hand, there was evidence that Medina Transit

hired Schemrich, could discipline or terminate her, paid her wages, insured her, and was

responsible for obtaining workers’ compensation insurance for her. On the other hand, there was

evidence that Medina Transit hired Schemrich at the City’s suggestion, agreed to use a

progressive discipline system to address very specific problems with the drivers, and removed at

least one driver at the City’s request. The contract itself provided that the City had to “approve

all drivers in advance of their operation of route service.” Moreover, the contract did not give

Medina Transit or its drivers any control over the City’s bus routes. Drivers had to operate the

buses on a fixed route and any deviations from that route or late or missed runs could result in

Medina Transit incurring a financial penalty. Additionally, the City required drivers to arrive a

certain amount of time before their scheduled shift to perform mandatory pre-trip inspections on

the buses. The City owned all of the BTA buses, and Schemrich testified that the BTA had

trained her. She also testified that she had been driving the BTA buses for ten years.

{¶27} The City is correct that “every contract for work reserves to the employer a

certain degree of control to enable him to ensure that the contract is performed according to 12

specifications.” Id. at ¶ 34. Here, however, the Ponyickys set forth evidence that the City had

control over, not only the final work product, but also “the details or method of doing the work.”

Gillum,

, quoting 27 American Jurisprudence, Section 7, at 488. Because

reasonable minds could differ on the issue of whether Schemrich was an independent contractor

or an employee of the City, the trial court could not decide the issue as a matter of law. See

Bostic,

; Zacharias,

, at *3. Compare Moore v.

Honican,

,

, ¶ 27 (1st Dist.) (officer was independent

contractor for township as a matter of law where uncontroverted evidence showed that his

department hired and paid him, assigned his duties, and made all decisions regarding promotion,

discipline, and other employment matters); Parrett v. Trost, 12th Dist. Clermont No. CA99-06-

058,

, *3 (Feb. 7, 2000) (employee-employer relationship did not exist as a

matter of law where individual towed motorcycle owned by the city, but was never officially

hired, used his own vehicle to tow the motorcycle, independently determined the route he would

take, and had never before towed items for the city). The court did not err by denying the City’s

motion for summary judgment. Accordingly, the City’s sole assignment of error is overruled.

III.

{¶28} The City’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 13

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document 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(C). 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.

DONNA J. CARR FOR THE COURT

BELFANCE, P. J. HENSAL, J. CONCUR.

APPEARANCES:

TODD M. RASKIN, CARL E. CORMANY and FRANK H. SCIALDONE, Attorneys at Law, for Appellant.

KENNETH J. FISHER, Attorney at Law, for Appellant.

PAUL KNOTT, Attorney at Law, for Appellees.