PUSEY V. BATOR
762 N.E.2d 968 (2002)
NATURE OF THE CASE: Pusey (P), survivor mother, appealed a judgment of the Court of
Appeals which affirmed a trial court judgment for a directed verdict pursuant to Ohio R.
Civ. P. 50(A) in a wrongful death action.
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 in fact 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 in fact 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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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