Court of Appeals of Ohio, Eighth District, Cuyahoga
ANDREW DIEMER, EXECUTOR, ETC. PLAINTIFF-APPELLANT
MINUTE MEN, INC., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Patrick J. Quallich Christopher A.
Holecek Sarah Nemastil Wegman, Hessler & Vanderburg.
ATTORNEYS FOR APPELLEES For Minute Men, Inc. David M. Ondrey
Thrasher Dinsmore & Dolan, Albert A. Giuliani, Abigail A.
Greiner Colleen A. Mountcastle D. John Travis Gallagher
Sharp, L.L.P., John Spellacy John J. Spellacy &
Associates Assistant City Prosecutor.
Cleveland Indians Baseball Company Limited Partnership J.
Jaredd J. Flynn Todd C. Hicks Thrasher Dinsmore & Dolan.
Ronald Hillman Ronald Hillman, pro se Mansfield Correctional
BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR, JUDGE.
Appellant, Andrew Diemer, representative of the estate of
Michaela Diemer, appeals the grant of summary judgment in
favor of appellees, Minute Men, Inc. ("Minute
Men"); and the Cleveland Indians Baseball Company, Inc.,
and the Cleveland Baseball Company Limited Partnership
(collectively "CIB"). Andrew claims that the trial
court erred in granting summary judgment because these
companies owed a duty to Michaela, and the companies are
independently liable for their negligent retention and
promotion of Ronald Hillman to a supervisory position that he
used to facilitate the rape and murder of Michaela. After a
thorough review of the record and law, this court affirms in
part, reverses in part, and remands.
Factual and Procedural History
Minute Men, a staffing agency, was hired by CIB for facility
cleaning services at Progressive Field. Minute Men provided
cleanup crews and supervisors to clean the stands, fields,
and a few other areas of Progressive Field after each game.
During each home game, Dominic Sabetta, project manager for
Minute Men, would receive a call from Thomas Evans, a
supervisor for CIB, with the number of cleaners required. The
number of workers depended on various factors including
attendance and whether there were fireworks after the game.
During the cleanup, Sabetta was in charge of these workers as
the project manager. He had a managing assistant along with
two supervisors that reported to him and his assistant. Two
crew leaders reported to the supervisors and would often be
tasked with specialized assignments such as cleaning the
field or dugout of sunflower seed hulls.
After Sabetta was informed of the number of cleaners
required, he would open the office at Minute Men where people
would gather in hopes of working in the clean up crew. He
would select people and assign them numbers and badges. Those
individuals would then report to the ballpark at a designated
time and be placed into various cleanup crews. When there
were not enough individuals that reported to the stadium, a
Minute Men employee would sometimes drive to a nearby
homeless shelter to recruit individuals to work.
Ronald Hillman was living in a homeless shelter, and began
working cleanup at the ballpark for Minute Men on opening day
of the 2014 season. He showed himself to be a hard worker and
was rewarded several times with a more desirable position
running a backpack blower used during the cleanup process for
CIB. At some point, a crew leader position became available.
It is disputed who recommended Hillman for the position.
Likely, Sabetta, or someone from Minute Men recommended
Hillman for the position, and with Evans's approval,
Hillman became a crew leader. He was issued a two-way radio
and credentials identifying him as such.
According to Evans's and Sabetta's testimony, a crew
leader could not discipline a fellow cleaner, nor could a
crew leader select which people would get chosen to work in
the cleanup crew. Those decisions took place at Minute
Men's office, rather than at the ballpark, and that
responsibility was Sabetta's. However, a crew leader
could select which individuals would work alongside the crew
leader in a more desirable position. Also, the crew leaders
could inform a supervisor or Sabetta that an individual was
not working out, and that individual would not be invited
back to work at the ballpark. Other testimony in the record
indicates that crew leaders could select people to work for
those individuals that just showed up at the gate during a
game, rather than sign up at Minute Men's offices.
Michaela was informed by a friend, Lisa Honeker, that she
could make a little money by working in a cleanup crew at the
ballpark. At the time, Michaela, a former nurse, was living
in a homeless shelter. Michaela went with her friend to the
ballpark the night of August 16, 2014, and sought to work in
a cleanup crew. The two did not sign up at Minute Men's
office. Honeker averred in an affidavit that Hillman selected
Michaela to work in a crew where Hillman was the crew leader
and directed her activities while working. According to
Honeker, he showed particular interest in Michaela and was
hitting on her. Michaela also worked the next night at the
ballpark in a cleanup crew where she was again selected by
Hillman to work in the park. After that shift, Hillman and
Michaela left together in Michaela's car. The two spent
some time at a downtown Cleveland casino the following night,
and then Michaela was not seen again until her body was
discovered in an abandoned house in Cleveland.
Hillman was eventually arrested and charged with her rape and
murder. In August 2015, he pled guilty to several charges,
including rape and murder. He was sentenced to life in prison
without the possibility of parole. Hillman had been
previously convicted of rape and had been adjudicated a
sexual predator prior to his employment with Minute Men.
Andrew then filed suit against Hillman and Minute Men,
asserting causes of action for wrongful death, survival,
intentional and negligent infliction of emotional
distress; and claims of assault, battery, and false
imprisonment against Hillman. CIB was added later in an
The case proceeded through discovery and appellees filed
motions for summary judgment. In separate entries issued
January 18, 2017, the trial court granted the appellees'
motions for summary judgment. In each journal entry, the
court also dismissed Andrew's claims against Hillman
without prejudice for failure to prosecute.Andrew then filed
the instant appeal, raising three errors for review:
I. The trial court erred, as a matter of law, in granting the
motion for summary judgment filed by [Minute Men], as well as
the motion for summary judgment filed by [CIB].
II. The trial court erred, as a matter of law, in failing to
consider that Minute Men and [CIB] were directly and
independently liable for their negligent retention and
promotion of Hillman, separately from the doctrine of
respondeat superior, which [Andrew] neither pleaded nor
alleged in this case.
III. The trial court erred, as a matter of law, in holding
that an employer, who knowingly retains and promotes to
supervisor an adjudicated sexual predator with a history of
committing violence against women, does not owe a duty of
care to protect or warn a subordinate female employee from
foreseeable harm posed by that supervisor after work hours.
Law and Analysis
Standard of Review
Andrew's assigned errors all assert that the trial court
erred in granting summary judgment and address only the
negligence claims. Therefore, this court will address the
negligence claims and the assigned errors together.
Summary judgment under Civ.R. 56 provides for the expedited
adjudication of matters where there is no material fact in
dispute to be determined at trial. To obtain summary
judgment, the moving party must show that "(1) there is
no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving
party, and that conclusion is adverse to the nonmoving
party." Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex
rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69
Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
The moving party has the initial responsibility of
establishing its entitlement to summary judgment. Dresher
v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264
(1996). "[I]f the moving party meets this burden,
summary judgment is appropriate only if the nonmoving party
fails to establish the existence of a genuine issue of
material fact." Deutsche Bank Natl. Trust Co. v.
Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657,
¶ 16, citing Dresher at 293.
Once a moving party demonstrates no material issue of fact
exists for trial and the party is entitled to judgment, it is
the nonmoving party's duty to come forth with argument
and evidence that demonstrates a material issue of fact does
exist that would preclude judgment as a matter of law.
Andrew asserted negligence claims against Minute Men and CIB.
Generally, a successful negligence claim requires a showing
of the existence of a duty, a breach of that duty, and an
injury proximately caused by the breach. Evans v. Ohio
State Univ.,112 Ohio App.3d 724, 738, 680 N.E.2d 161