Pusey v. Bator

762 N.E.2d 968 (2002)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Greif Brothers (D) owned a plant subject to theft. D contracted with Youngstown Security Patrol, Inc. (D1) to supply a uniformed security guard to 'deter theft [and] vandalism' on D's property during specified hours. D told D1 they wanted the security guard to periodically check the parking lot and the inside of the building. Other than those instructions, D did not instruct D1 on how to protect D's property. The written contract did not specify whether the guard was to be armed or unarmed, and that issue was never discussed. D did notice that some of the guards were armed. It was known that some of D1's guards used steel drums at D for target practice. D never told D1 not to carry arms on D's property. Bator was hired by D1 and was not certified as an armed guard. Bator took a gun in his briefcase. D's supervisor knew that Bator was armed but not licensed. Bator was the guard assigned to D's when he saw two individuals, later identified as P and Charles Thomas, walking through D's parking lot. Bator used the radio to inform a D1 guard on duty at another location. When Bator stepped out from the doorway, the men stopped walking and looked toward him. Both had their hands behind their backs. Bator estimated that he was twenty feet from the men. Bator twice asked the men if he could help them; neither man responded but instead looked at the other and then back at Bator. Bator testified that Charles then moved his hands from behind his back and Bator saw that he was holding a bag. When the bag was in motion, it sounded to Bator like metal was hitting together inside of it. The bag contained a pair of pliers, a screwdriver, and wire cutters. But Bator did not know that. Bator again asked the men what they wanted. Bator testified that P then asked, 'Are you open for business?' Bator replied that the business was not open and that he was the night security guard. According to Bator, P then became angry and called Bator a 'mother fucker.' P's outburst frightened Bator, and he quickly stepped inside the guard office, retrieved his gun, and returned outside. P swore at Bator again, which further frightened him, and Bator raised the gun to be sure the men could see it and ordered them to lie down on the ground with their arms out to their sides. Charles complied but P, although he did get down on the ground, did not put his arms out to the sides but instead propped himself up on his forearms. Bator told the men that he felt safer with them on the ground and P replied, 'Fuck you,' or 'Fuck it' and made a quick movement like he was reaching for something in his back pocket. Bator thought P was reaching for a weapon, so he fired his gun. The bullet struck P in the back of his head. P apparently was reaching for a small paring knife among his personal effects. Bator called for an ambulance and police. Charles got up from the ground and left the scene. Another guard prevented Charles from leaving. Charles told an officer that he and P had come onto D's property looking for a jack to help a female motorist with a flat tire. There was no car with a flat tire. P died from his wound. P filed a wrongful death and survivorship action against Bator, D, and D1. D1 and Bator settled with P soon after the jury trial began. D moved for a directed verdict pursuant to Civ.R. 50(A). The trial court granted the motion. D was not liable because D1 was an independent contractor and, as a general rule, an employer is not liable for the negligent acts of its independent contractor. The court rejected P's assertion that the nature of the work contracted for in this case qualified as an exception to the general rule. The court of appeals affirmed and P appealed.