COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69891 MATTHEW T. CAPADONA : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION PHILLIP STERN : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-276120. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: William M. Crosby, Esq. 55 Public Square, Suite 2000 Cleveland, Ohio 44113 For Defendant-appellee: Keith D. Thomas, Esq. Meyers, Hentemann, Schneider & Rea Co., L.P.A. 815 Superior Avenue, N.E. #2100 Cleveland, Ohio 44114 For Third Party Plaintiff: Mary Biasci Scholl, Esq. 1040 The Leader Building 526 Superior Avenue Cleveland, Ohio 44114 SWEENEY, JAMES D., P.J.: Plaintiff-appellant Matthew T. Capadona appeals from the granting of defendant-appellee Phillip Stern's, d.b.a. Cliffview Manor Apartments, motion for summary judgment. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on May 9, 1991, a vehicle driven and owned by Mr. Richard Lee Morgan (property manager of Cliffview Manor Apartments) collided with a police vehicle driven by plaintiff, who was employed at the time as a police lieutenant for the City of South Euclid, Ohio, and sustained personal injuries as a result of the collision. Defendant-Stern's motion for summary judgment was filed on June 21, 1995, and alleged that Mr. Morgan, at the time of the auto accident, was on a personal errand unrelated to his duties as an employee of Mr. Stern, thereby obviating Mr. Stern's vicarious liability for the injuries sustained by plaintiff. This motion was supported by a transcript of Mr. Morgan's deposition taken on November 11, 1992, and used in the case of City of South Euclid v. Richard Morgan and Phillip Stern, South Euclid Municipal Court Case No. 14989. On July 19, 1995, plaintiff filed his brief in opposition to summary judgment supported by a variety of documentary evidence, transcripts of depositions and affidavits. The trial court granted summary judgment, without opinion by status form half-sheet entry, in favor of Mr. Stern on July 24, 1995. - 3 - This appeal from that motion ruling of July 24, 1995, presents two assignments of error, which will be discussed together as both rely upon the employment relationship and the applicability of the doctrine of respondeat superior as it applies to the granting of summary judgment. I PHILLIP STERN, D.B.A. CLIFFVIEW MANOR APARTMENTS, IS LIABLE FOR THE INJURIES OF MATTHEW CAPADONA BECAUSE AT THE TIME OF THE ACCIDENT GIVING RISE TO THIS LAWSUIT, RICHARD LEE MORGAN WAS ACTING WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT WITH DEFENDANT STERN AND CLIFFVIEW MANOR APARTMENTS. II THE DEFENDANT PHILLIP STERN NEGLIGENTLY HIRED, SUPERVISED AND RETAINED THE SERVICES OF DEFENDANT RICHARD LEE MORGAN. The standard of review from a ruling on a motion for summary judgment was stated by this court as follows: A motion for summary judgment must be overruled if reasonable minds could find for the nonmovant. Saunders v. McFaul (1990), 71 Ohio App.3d 46, 593 N.E.2d 24. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which test is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(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 - 4 - the party against whom the motion for summary judgment is made, the conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. Moreover, it is well settled the party seeking summary judgment bears the burden of showing no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 91 L.Ed.2d 265, 106 S.Ct. 2548; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. All factual doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59, 604 N.E.2d 138. Because our review is plenary, we review the trial court's judgment independently and without deference to its judgment. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. ***. Stephens v. A-Able Rents Co. (Cuyahoga, 1995), 101 Ohio App.3d 20, 654 N.E.2d 1315. Also see State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, and Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. With regard to the applicability of the doctrine of respondeat superior, in order for an employer to be held liable under the doctrine, the tort of the employee must be committed within the scope of the employment. Byrd v. Faber (1991), 57 Ohio St.3d 56, 58, 565 N.E.2d 584, 587; Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 278-279; Restatement of the Law 2d, Agency (1958) 481, Section 219(1). Further: In Boch v. New York Life Ins. Co. (1964), 175 Ohio St. 458, 26 O.O.2d 47, 196 N.E.2d 90, at paragraphs one and two of the syllabus, the court held as follows: - 5 - "1. An employer is liable for the negligence of his employee in operating the employee's own automobile only where it is established by a preponderance of the evidence "(1) that the employer had expressly or impliedly authorized the employee to use his own automobile in doing the work he was employed to do, "(2) that the employee was at the time of such negligence doing work that he was employed to do, and "(3) that the employee was subject to the direction and control of the employer in the operation of the employee's automobile while using it in doing the work he was employed to do. "2. As a matter of law, a master is not liable for the negligence of his servant while driving to work at a fixed place of employment, where such driving involves no special benefit to the master other than the making of the servant's services available to the master at the place where they are needed." (Emphasis added.) Faber v. Metalweld, Inc. (Cuyahoga, 1992), 89 Ohio App.3d 794, appeal dismissed as having been improvidently allowed in (1994), 68 Ohio St.3d 1211, 624 N.E.2d 1062. In the present case, there is no demonstration that Mr. Morgan, at the time of the accident, was acting in the scope of his employment. Also, the record, when viewed in a light most favorable to the non-moving party (plaintiff-appellant), fails to demonstrate a genuine issue of fact with regard to any of the Boch factors enumerated above at 1(1)-(3). Mr. Morgan stated in his deposition, at pages 17 and 22-23, that at the time of the accident he was on his way to the bank in his own vehicle to make a - 6 - withdrawal from his personal checking account. This act was a personal venture, unrelated to the employer's business. See Morgan deposition at 22-23. Accordingly, the trial court did not err in granting summary judgment in favor of the employer-defendant. Assignments overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .