COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70791 RONNIE HAYES : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JEFF GOLDSTEIN/ABC BAIL BONDS : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. 95-CVI-18732 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: CHARLES D. PRICE, ESQ. RONNIE HAYES, ESQ. ZUCKERMAN & ASSOC. 1274 E. 137th Street 160 Signature Square I E. Cleveland, Ohio 44112 25201 Chagrin Blvd. Cleveland, Ohio 44122 LARRY W. ZUKERMAN, ESQ. ZUKERMAN & ASSOC. 2000 East Ninth Street, Suite 700 Cleveland, Ohio 44115 - 2 - DYKE, J.: Defendant Jeff Goldstein, doing business as ABC Bail Bonds, appeals from the judgment of the trial court entered in favor of plaintiff Ronnie Hayes and which imposed joint and several liability upon Goldstein and his independent contractor, Mike Cole. For the reasons set forth below, we affirm. On September 19, 1995, plaintiff filed this action against Cole and Goldstein, doing business as ABC Bail Bonds (Goldstein and ABC Bail Bonds are hereafter collectively referred to as "ABC Bail Bonds") seeking recovery of damages sustained when an agent of ABC Bail Bonds allegedly broke down the door of plaintiff's dwelling. ABC Bail Bonds denied liability and the matter proceeded to a hearing before a magistrate on November 28, 1995. The magistrate subsequently issued findings of fact and conclusions of law which provided in relevant part as follows: On August 19, 1995 Defendant Cole, a bounty hunter acting on behalf of Defendant Jeff Goldstein dba ABC Bailbonds on an independent contractor basis, arrived at about 5:30 a.m. at a home owned by Plaintiff and proceeded to kick the door down looking for a criminal fugitive. According to Plaintiff, the home was vacant. It was owned by his mother who had recently died. Plaintiff became the new owner and planned to rehabilitate the home. *** Defendant Cole, citing Taylor v. Taintor 83 U.S. 366 (1872), claims in essence, that he had a qualified privilege to enter Plaintiff's home in his pursuit of the fugitive and that his liability is limited to any physical damages caused as a result of the break-in. Defendant Jeff Goldstein dba ABC Bailbonds claims that Defendant Cole is an independent contractor and therefore - 3 - only Defendant Cole can be held liable for any damages arising out of the incident. ***. In the instant case, Defendant Cole produced no evi- dence that the fugitive owned the house he broke into; there was no evidence to substantiate the veracity of the anonymous tip he received and therefore no way of gauging the reasonableness of his actions; and there was no evi- dence that he actually even saw the fugitive prior to breaking into the home at 5:30 a.m. Thus, the Court finds that Defendant Cole trespassed onto Plaintiff's property and is liable for all damages naturally and proximately flowing from his wrongful actions. As to Defendant Jeff Goldstein dba ABC Bail Bonds, the Court finds that Defendant Cole was an independent contractor and that ABC Bail Bonds exerted no direct control over the manner of Defendant Cole's work. Under normal circumstances this independent agency relationship would shield Defendant ABC Bail Bonds from any vicarious liability. However, the nature of the undertaking is personal in nature. In other words, the bondsman acquires complete control over the physical person of the fugitive. These are not the typical rights in a tangible or intangible asset or chattel. On the contrary, as the Court in Taylor stated 'The sureties had control of [the fugitive's] person' and its 'dominion was a continuance of [the fugitive's] original imprisonment.' This Court holds that this is a non-transferable or non-delegable right, and thus Defendant Jeff Goldstein may not escape liability on an independent-contractor theory. The trial court adopted the recommendations of the referee and entered judgment for plaintiff and against defendants in the amount of $636.22. The Court later reduced the damages to $450.00. ABC Bail Bonds appeals herein and assigns a single error for our review. ABC Bail Bonds' assignment of error states: - 4 - THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT ABC BAIL BONDS IN HOLDING IT LIABLE FOR THE ACTS OF ITS INDEPENDENT CONTRACTOR. Within this assignment of error, ABC Bail Bonds complains that this matter does not involve a nondelegable duty because the apprehension of a fugitive is not an inherently dangerous activity. Rather, ABC Bail Bonds maintains that this activity only becomes dangerous only when improperly performed. We cannot accept this position. The doctrine of joint and several liability has long been a part of the common law of Ohio. Bowling v. Heil (1987), 31 Ohio St.3d 277, 286. An exception to this general rule is recognized when an employer has retained an independent contractor. Bemmes v. Public Employees Retirement Board (1995), 102 Ohio App.3d 782, 791; Strayer v. Lindeman (1981), 68 Ohio St.2d 32, 34. This exception does not apply, however, where the duty is deemed non- delegable and in those cases he is liable for their nonperformance or negligent performance even though he has employed an independent contractor. Id. The Lindeman Court explained: [T]here are certain non-delegable duties that exist, whether created by contract, voluntary assumption or public policy, and when a person assumes one of those duties that person remains accountable for its performance regardless of the means used to effectuate the performance. Id. at 36, quoting Damron v. C.R. Anthony Co. (Tex. Civ. App. 1979), 586 S.W.2d 907, 913-914. Accord Albain v. Flower Hospital (1990), 50 Ohio St.3d 251, 260. - 5 - The rationale for this rule was set forth in Covington and Cincinnati Bridge Co. v. Steinbock & Patrick (1899), 61 Ohio St.2d 215, 229, as follows: It is urged as unreasonable that one who has work to perform, that he himself cannot perform, from want of knowledge or skill, should be held liable for the negligence of one whom he employed to do it, since, if he did reserve control, it would avail nothing from his own want of knowledge and skill. There is seeming force in this, but only so. It is not agreeable to the principles of distributive justice. For it is equally a hardship that one should suffer loss by the negligent performance of work which another procured to be done for his own benefit, and which he in no way promoted and over which he had no control. Hence where work is to be done that may endanger others, there is no real hardship in holding the party, for whom it is done, responsible for neglect in doing it. Though he may not be able to do it himself, or intelligently supervise it, he will nevertheless, be the more careful in selecting an agent to act for him. This is a duty which arises in all cases where an agent is employed; and no harm can come from stimulating its exercise in the employment of an independent contractor, where the rights of others are concerned. Further, it has been determined that the business of acting as a surety for pay upon court bonds has a relation to the public health and safety. State ex rel. Howell v. Schiele (1949), 85 Ohio App. 356, 360. In Szymanski v. Great Atlantic & Pacific Tea Co. (1947), 79 Ohio App. 407, the court held that where a store owner retains a store detective to apprehend shoplifters such duties are personal and non-delegable. Accord Zentko v. McKelvey (App. 1948), 54 O.L.A. 529. In Joseph v. Consolidated Rail Corp. (October 30, 1987), Butler App. No. CA87-05-065, unreported, the court determined that the essential fact upon which the Szymanski Court - 6 - rendered its judgment was that "the tortious conduct of the independent contractor directly flowed from the work the contractor was hired to perform, namely apprehending and arresting shoplifters." Thus, by application of the foregoing, we concur with the trial court's conclusion that ABC Bail Bond's duties are non- delegable. We are convinced that there is an indisputable danger inherent in the apprehension of one who has failed to answer to a charge levelled in a court of law, or who has failed to abide by an order of a court, and that this activity presents danger even if undertaken with the utmost precaution. Moreover, the requisite activities are undeniably personal in nature. Further, as a matter of policy, we believe that employers should be required to carefully select and intelligently supervise their agents, or face liability for failing to do so. Accordingly, and pursuant to the principles set forth in Szymanski, supra, and Joseph, supra, we affirm the judgment of the trial court. - 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 Cleveland Municipal 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. O'DONNELL, J., CONCURS DAVID T. MATIA, P.J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). -8- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70791 RONNIE HAYES : : : PLAINTIFF-APPELLEE : : D I S S E N T I N G v. : : O P I N I O N JEFF GOLDSTEIN/ABC BAIL BONDS : : : DEFENDANT-APPELLANT : DATE: FEBRUARY 27, 1997 DAVID T. MATIA, P.J., DISSENTS: I respectfully dissent from the majority for the following reasons. In the case sub judice, the trial court held that Michael Cole was working for defendant-appellant as an independent contractor and that defendant-appellant did not exert direct control over Mr. Cole's work or actions. However, the trial court held defendant-appellant jointly and severally liable for the wrongful acts of Mr. Cole as it found the apprehension of a fugitive is a non-delegable duty by nature. I disagree. As the majority has stated, there exists a well established principle of law that an employer is not liable for the acts of an independent contractor. However, there are a few exceptions to this rule which are to be narrowly construed. In this case, the -9- issue involves the "non-delegable duty" exception, i.e., an employer may be held to duties which he cannot delegate to another. See Strayer v. Lindeman (1981), 68 Ohio St.2d 32, 34; Lynch v. Trakas Trucking, Inc. (July 8, 1993), Cuyahoga App. No. 62606, unreported. The magistrate, and ultimately the trial court, reasoned the actions of a bail enforcement agent are non-delegable for the following reasons: As to Defendant Jeff Goldstein dba ABC Bail Bonds, the Court finds that Defendant Cole was an independent contractor and that ABC Bail Bonds exerted no direct control over the manner of Defendant Cole's work. Under normal circumstances this independent agency relationship would shield Defendant ABC Bail Bonds from any vicarious liability. However, the undertaking is personal in nature. In other words, the bondsman acquires complete control over the physical person of the fugitive. These are not the typical rights in a tangible or intangible assets or chattel. On the contrary, as the Court in [Taylor v. Taintor (1872), 83 U.S. 366] stated "The sureties had control of [the fugitive's] person" and its "dominion was a continuance of [the fugitive's] original imprisonment." This Court holds that this is a non- transferable or non-delegable right, and thus Defendant Jeff Goldstein may not escape liability on an independent-contractor theory. However, the central issue in Taylor, supra, was the forfeiture of a prisoner from one state to another. The language concerning the nature of bail and/or the control over a fugitive is mere dicta and cannot be considered binding precedent upon this court. Moreover I do not believe the act of exerting -10- "complete control" over a fugitive in and by itself necessitates its designation as "non-delegable." This conclusion may seem at odds with a case the majority places great emphasis upon, Szymanski v. The Great Atlantic & Pacific Tea Co. (1947), 79 Ohio App. 407. In that case the Court of Appeals for Lucas County held "[d]ue to the personal character of the services performed by a store detective whose duty it is to apprehend shoplifters, the store owner cannot delegate such duty to an independent contractor and thereby be relieved of liability to his customers for illegal acts of such detective." Id. at paragraph two of syllabus. However, that case dealt with the ability of a store owner to delegate his/her statutorily imposed duty owed to his/her business invitees. In this case, there is no duty of care imposed by statute upon a bail bondsman. To invoke the "non- delegable duty" exception to acts merely because they are personal in nature would allow the exception to swallow up the general rule regarding independent contractor liability. Rather, I believe a more rational approach is to analyze the nature of the work and/or duty performed by the independent contractor as opposed to the degree to which the work affects a third party. More specifically, I believe the important distinction when determining whether or not an act is "delegable" is between work which is inherently dangerous by its very nature and work which is dangerous only when performed in a negligent and/or reckless manner. See Albaine v. Flowers Hospital (1990), -11- 50 Ohio St.3d 251, 261; Newsome v. Longstaffe (January 22, 1988), Ashtabula App. No. 1312, unreported; Joseph v. Consolidated Railroad Corp. (October 30, 1987), Butler App. No CA87-05-065; Amurri v. City of Columbus, et al. (February 28, 1985), Franklin App. No. 84AP-597,598, 618, 681, 619, 682, unreported. For example, Ohio courts have recognized inherently dangerous work to include the operation of a burning dump, Newcomb v. Dredge (1957), 105 Ohio App. 417; the demolition of a burned-out building, Covington & Cincinnati Bridge Co. (1899), 61 Ohio St. 215; excavating portions of a public sidewalk, Hawver v. Whalen (1892), 49 Ohio St. 69; and working around powerful electric fields, Gordon v. Ponderosa, Inc. (April 26, 1991), Portage App. No. 90-P-2195, unreported. I would agree with defendant-appellant that, by their very nature, the actions of a bail enforcement agent are not inherently dangerous. It is only when the agent acts in a negligent and/or dangerous manner that harm can occur. Since the actions of a bail enforcement agent do not involve the type of risks and precautions required as contemplated by the "non- delegable" exception, the defendant-appellant cannot be held jointly and severally liable for the wrongful actions of the .