Ohio Appellate Reports

Unpublished

HAMILTON v. DAYTON CORRECTIONAL INSTITUTION, Unpublished
Decision (1-4-2007) 2007-Ohio-13 Richard Hamilton, Jr.,
Plaintiff-Appellant, v. Dayton Correctional Institution et
al., Defendants-Appellees. (Mission Systems, Inc.,
Third-Party Defendant). No. 06AP-469. Court of Appeals of
Ohio, Tenth District. Rendered on January 4, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Court of Claims of Ohio.

Geisenfeld Law Offices, LLC, James R. Geisenfeld; and R.
Casey Dagenhardt, for appellant.

Jim Petro, Attorney General, and Peter E. DeMarco, for
appellee Dayton Correctional Institution.

Steve Stofel, for third-party defendant Mission Systems,
Inc.

OPINION

KLATT, J.

{¶ 1} Plaintiff-appellant, Richard Hamilton, Jr.,
appeals from a judgment of the Court of Claims of Ohio
granting judgment in favor of defendant-appellant, Dayton
Correctional Institution (“DCI”), and third-party
defendant, Mission Systems, Inc. (“Mission”). For the
following reasons, we affirm that judgment.

{¶ 2} Appellant was incarcerated at DCI in 2001.
While incarcerated, appellant worked repairing heating and
air conditioning units. On March 6, 2001, appellant’s
supervisor, Nick Parchment, directed appellant to repair an
ice machine. To accomplish the repair, appellant had to
bend down on his knees and place his arms up inside the
machine. Parchment did not place any safety cones or
similar warnings around appellant and did not directly
supervise appellant during the repair. As appellant
repaired the machine, Larry Stewart, a temporary maintenance
worker, ran into appellant with a six-wheel, light utility
vehicle. The vehicle’s front bumper hit appellant in his
lower back and pinned him against the ice machine for a few
seconds. After the incident, appellant finished the repair
of the ice machine. However, his lower back began to hurt
about an hour later. Appellant went to the prison’s
infirmary complaining of back pain, numbness and tingling
in his legs. Appellant had surgery on his back in May 2001.

{¶ 3} As a result of this incident, appellant sued
DCI. Appellant alleged that DCI was liable for the
negligence of Stewart, who was acting in the course and
scope of his employment with DCI when he injured appellant.
In its answer, DCI claimed that it did not employ Stewart.
Instead, DCI alleged that Stewart was employed by Mission,
a company with a state contract to provide temporary
employees. DCI also asserted a third-party claim against
Mission for contribution in the event that DCI was held
vicariously liable for appellant’s injuries. Mission
admitted that Stewart was its employee and that it provided
him to DCI pursuant to its state contract. However, Mission
also asserted causes of action against DCI for negligent
supervision and breach of contract. Appellant later
attempted to sue Mission in a separate action in state
court, but that action was dismissed because appellant
failed to bring the claim within the applicable statute of
limitations.

{¶ 4} On May 9, 2005, the trial court held a trial
limited to liability issues. Appellant presented evidence
demonstrating that his injuries were caused by Stewart’s
negligence, and claimed that because Stewart was acting in
the course and scope of his employment, DCI was liable for
his injuries. In support of its own claims, Mission
presented evidence attempting to show that Parchment
negligently allowed Stewart to drive the vehicle, a task
Mission alleged Stewart was not qualified to perform. The
trial court found that Stewart’s negligent operation of the
vehicle was the sole cause of appellant’s injuries. The
trial court also determined that because Stewart did not
work for DCI and was not a state employee, DCI could not be
vicariously liable to appellant for Stewart’s negligent
acts. Therefore, the trial court found in favor of DCI on
appellant’s negligence claim. The trial court also found
that Mission did not present sufficient evidence to prove
that DCI was negligent in allowing Stewart to drive the
vehicle. Lastly, the trial court found that Mission
suffered no damages arising from any alleged breach of
contract by DCI.

{¶ 5} Appellant appeals and assigns the following
errors:

I. THE COURT OF CLAIMS ERRED IN FINDING THAT PARCHMENT
WAS NOT NEGLIGENT AND DCI NOT LIABLE FOR HIS NEGLIGENCE.

II. THE COURT OF CLAIMS ERRED IN DECLINING TO DECIDE
WHETHER THE STATE IS ENTITLED TO CONTRIBUTION FROM MSI.

{¶ 6} In his first assignment of error, appellant
contends that the weight of the evidence does not support
the trial court’s finding that Parchment was not negligent.

Appellant claims that Parchment was negligent because: (1)
he did not set out any warnings, such as safety cones or
tape, to protect appellant while appellant worked; (2) he
failed to provide appellant with a safe workplace; and (3)
he failed to supervise appellant as appellant worked on the
ice machine. We note, however, that appellant’s complaint
does not assert a claim of negligence against DCI based
upon Parchment’s conduct. Nor does the complaint allege any
claim against DCI based upon its alleged failure to set out
warnings, failure to protect appellant, failure to provide
a safe workplace, or failure to supervise appellant.
Appellant’s complaint alleges only one cause of action: a
claim of negligence against DCI premised on the allegation
that Stewart was a DCI or state employee and that he
negligently injured appellant while acting in the scope of
his employment.

{¶ 7} Consistent with the complaint, at trial,
appellant based his claim of negligence on Stewart’s
operation of the vehicle. In fact, in his post-trial
memorandum, appellant asserted that “[DCI’s] employee/agent
was negligent in driving the [vehicle] in such a manner as
to cause it to run into [appellant]. [Appellant] submits
that he is therefore entitled to judgment against the
Defendants on the issue of negligence.” Thus, it is clear
that appellant based his theory of recovery in the trial
court solely on Stewart’s negligence, not on any alleged
negligence of Parchment.[fn1] Nevertheless, appellant now
asserts on appeal that the trial court erred when it
determined that DCI was not liable for Parchment’s
negligence. In essence, appellant contends that his claim
against DCI is based upon Parchment’s alleged negligence,
not Stewart’s alleged negligence.

{¶ 8} It is well-established that an appellant may
not assert a new theory for the first time before an
appellate court. Kalish v. Trans World Airlines (1977), 50
Ohio St.2d 73, 77 (plaintiff who proceeded under state law
in trial court may not assert a federal cause of action for
the first time on appeal); Poluse v. Youngstown (1999), 135
Ohio App.3d 720, 729 (plaintiff could not pursue common law
action on appeal where complaint revealed no such claim);
Lanham v. Franklin Twp., Clermont App. No. CA2002-07-052,
2003-Ohio-2222, at ¶ 13 (appellant’s breach of
contract claim not raised in complaint could not be pursued
on appeal); Van Nostran-Young Ins. Agency v. State Auto
Ins. Cos., Stark App. No. 2002-CA-00371, 2003-Ohio-4393, at
¶ 25 (claim not raised in trial court may not be
raised on appeal for the first time); Coleman v. Ginn (Dec.
21, 1989), Logan App. No. 8-86-21 (“It is fundamental that
the theory upon which a case is tried must be adhered to on
appeal.”).

{¶ 9} Here, appellant’s assignment of error is
premised on a legal theory that appellant never alleged in
his complaint or asserted at trial. Because appellant did
not assert a claim against DCI based upon Parchment’s
negligence, appellant cannot on appeal assert what is in
essence a new theory of recovery. The fact that Parchment’s
conduct was addressed at trial in connection with Mission’s
claim against DCI is irrelevant.

{¶ 10} We also note that in his reply brief,
appellant argues that the trial court erred when it failed
to find that Stewart was a “de facto” employee of DCI.
However, because appellant did not raise this issue in an
assignment of error, the issue is not properly before the
court and we will not address it. See State v. Gore, Lucas
App. No. L-05-1242, 2006-Ohio-5622, ¶ 15
(disregarding sentencing issue raised in defendant’s reply
brief because issue not raised in assignment of error).
See, also, Akron v. Wendell (1990), 70 Ohio App.3d 35, 46
(“[W]e need not address these issues as they are not
separately set forth as assignments of error.”); Dublin v.
Clark, Franklin App. No. 05AP-431, 2005-Ohio-5926, at fn. 2
(declining to consider issue raised by appellant that was
not raised in an assignment of error); Hoffman v. CHSHO,
Inc., Clermont App. No. CA2004-09-072, 2005-Ohio-3909, at
fn.1 (disregarding alleged error stated in footnote of
appellate brief because error not raised in assignment of
error).

{¶ 11} Lastly, even if appellant had asserted below
a claim of negligence against DCI premised on Parchment’s
conduct, we would still find no error. The trial court
expressly found that Stewart’s negligence was the sole
cause of appellant’s injuries. Appellant does not assign
that finding as error in this appeal. Therefore, even if
Parchment was negligent, his negligence could not have been
the proximate cause of appellant’s injuries. See Abrams v.
Worthington, Franklin App. No. 05AP-912, 2006-Ohio-5516, at
¶ 15; Essig v. Sara Lane Corp. (Aug. 1, 2000),
Franklin App. No. 99AP-1432 (claim for negligent
supervision requires proof that employer’s negligence was
the proximate cause of plaintiff’s injuries).

{¶ 12} For all of these reasons, appellant’s first
assignment of error is overruled.

{¶ 13} Our disposition of appellant’s first
assignment of error renders moot appellant’s second
assignment of error regarding the State’s right to
contribution from Mission. App.R.12.

{¶ 14} In conclusion, appellant’s first assignment
of error is overruled and his second assignment of error is
moot. The judgment of the Court of Claims is affirmed.

Judgment affirmed.

PETREE and BROWN, JJ., concur.

[fn1] Mission did raise the question of Parchment’s alleged
negligence in support of its own negligent supervision
claim against DCI. However, the trial court found that
Parchment was not negligent. Even though appellant did not
base his negligence claim against DCI on Parchment’s
conduct, the trial court addressed Parchment’s conduct as if
it was the basis of appellant’s claim.