Ohio Appellate Court Finds Contractor Cannot be Liable When Claims Against Employee are Barred

by Julie Grace VanVliet, Esq.

According to a recent decision from Ohio’s Second District Court of Appeals, plaintiffs must properly and timely name individual employees in a lawsuit to prevail on a claim against their employer. This case involved claims against a subcontractor and their agent at a construction site—not a medical professional or lawyer, like recent appellate decisions addressing similar claims based on agency relationships.

In this case, an employee of a general contractor slipped and fell after an agent of the subcontractor applied a glue and cleaning solution to the floor he was installing. Badra-Muniz v. Vinyl Carpet Serv. Inc., 2024-Ohio-5507 (2nd Dist.). The injured employee filed a complaint against the subcontractor and numerous “John Doe” agents or employees, alleging that the subcontractor’s agent was negligent.

After identifying the agent, the general contractor amended their complaint to add him as a party. Because the claims against the agent were time-barred, however, the subcontractor sought to dismiss the action against it, arguing that since the claims against its employee were time-barred, so too were the claims against it. The trial court agreed with the subcontractor and dismissed the claims against it.

On appeal, the plaintiff argued that he could bring vicarious liability claims against either a servant, who is primarily liable, or a master, who is secondarily liable, or both. He also argued that the Ohio Supreme Court’s recent decision in Clawson v. Heights Chiropractic Physicians, LLC, 2022-Ohio-4154 should only apply to professional malpractice actions, not situations like this involving contractors at a construction site. Meanwhile, the subcontractor argued that, under Clawson, the requirement to properly and timely sue an individual employee should not be restricted to only claims for professional negligence.

The appellate court agreed with the subcontractor, holding that an employer’s vicarious liability was contingent on the employee’s direct liability. The court also rejected the notion that its holding – and recent Ohio Supreme Court cases supporting it – should only apply to cases of professional negligence, seemingly making it more difficult to assert claims against any type of employer for their employee’s negligent conduct unless the employee is timely named as a party.

Even though the Ohio Legislature sought to address and avoid this very scenario when it passed House Bill 179, effectively overruling Clawson, the statute is not expressly retroactive. Consequently, while the statute became effective on October 24, 2024, the legislation does not seemingly impact cases filed before that date.

If you would like a full copy of the opinion or if you have any other questions related to vicarious liability or respondeat superior claims against employers, feel free to call upon one of our Appellate Advocacy or Professional Liability Group members.