Clark v. Angiulli, Inc.

[Cite as Clark v. Angiulli, Inc., 2026-Ohio-2281.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO ALEX CLARK, : APPEAL NO. C-250346 TRIAL NO. A-2304666 Plaintiff-Appellant, : vs. : JUDGMENT ENTRY ANGIULLI, INC., d.b.a. MARTINO’S : ON VINE, Defendant-Appellee. : This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed 50 percent to the appellant and 50 percent to the appellee. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27. To the clerk: Enter upon the journal of the court on 6/17/2026 per order of the court. By:_______________________ Administrative Judge [Cite as Clark v. Angiulli, Inc., 2026-Ohio-2281.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO ALEX CLARK, : APPEAL NO. C-250346 TRIAL NO. A-2304666 Plaintiff-Appellant, : vs. : OPINION ANGIULLI, INC., d.b.a. MARTINO’S : ON VINE, Defendant-Appellee. : Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded Date of Judgment Entry on Appeal: June 17, 2026 Beck Law Center and Kimberly Beck, for Plaintiff-Appellant, Rendigs, Fry, Kiely & Dennis, LLP, Jonathan P. Saxton and James J. Englert, for Defendant-Appellee. [Cite as Clark v. Angiulli, Inc., 2026-Ohio-2281.] ZAYAS, Judge. {¶1} This case presents a question of whether summary judgment in favor of a bar establishment was proper on claims asserted by a patron for vicarious liability and premises liability arising from an altercation that occurred one night at the bar establishment. Plaintiff-appellant Alex Clark, the patron, appeals from the trial court’s grant of summary judgment in favor of the defendant-appellee Angiulli, Inc, d.b.a Martino’s on Vine (“Martino’s”), the bar establishment, and argues in a single assignment of error that the trial court erred in granting summary judgment in favor of Martino’s on the vicarious-liability and premises-liability claims. For the reasons that follow, we sustain the assignment of error in part and reverse the trial court’s grant of summary judgment as to the vicarious-liability claim as genuine issues of material fact remain to be determined on this claim. As to the premises-liability claim, we overrule the assignment of error as to this claim and affirm the trial court’s grant of summary judgment in favor of Martino’s on this claim. The cause is remanded for further proceedings on the vicarious-liability claim. I. Background {¶2} Clark initiated this action against Martino’s, asserting claims for vicarious liability and premises liability, among others.1 The claims arose from an alleged altercation that occurred at Martino’s on or about Sunday, August 6, 2023, between 1:00 a.m. and 2:00 a.m. The altercation was allegedly between Clark and either Martino’s employees or agents, or other patrons. Martino’s answered the complaint, asserting a defense—among others—that it was not responsible for 1 The complaint was also filed against John Doe defendants 1-20, and asserted a claim for assault and battery against the John Doe defendants and a third claim against Martino’s for negligent training and supervision. The trial court found the action against John Does defendants 1-20 never commenced under Civ.R. 3(A) as Clark failed to perfect service on these defendants within one year as required.  OHIO FIRST DISTRICT COURT OF APPEALS independent and unforeseeable actions of third parties, over which it had no control. Martino’s later moved for summary judgment on Clark’s claims, and the trial court granted summary judgment in favor of Martino’s.2 {¶3} The trial court entered summary judgment in favor of Martino’s on Clark’s claim for vicarious liability after finding that Martino’s met its initial burden to show that the “attackers” were “not employees” of Martino’s and Clark failed to meet his reciprocal burden to set forth “evidentiary facts” showing that the attackers were employees. The trial court granted summary judgment in favor of Martino’s on Clark’s claim for premises liability after finding that “[n]othing in the record demonstrates that . . . Martino’s could have foreseen the type of assault that occurred in this case.” Clark now appeals. II. The Summary-Judgment Record A. The Arguments {¶4} Martino’s moved for summary judgment on Clark’s claims, arguing that there “is no question” that the individuals who “interacted with” Clark that night were not employed by Martino’s, nor were they agents of Martino’s, and it was not foreseeable that such an altercation “with patrons” would occur. The motion was supported by an affidavit from the bar manager and several depositions, including those of Clark, the bartender, the bar manager, and another bar employee. {¶5} Clark responded in opposition to summary judgment, arguing that genuine issues of material fact remain as to whether “the assailants” were employed by Martino’s and whether Martino’s owed Clark a duty as an invitee to prevent a “foreseeable harm” once the fight began and was therefore required to stop the fight 2 The trial court also granted summary judgment in favor of Martino’s on Clark’s claim for negligent training and supervision. Clark does not challenge this ruling on appeal. 4  OHIO FIRST DISTRICT COURT OF APPEALS as soon as possible, which Martino’s did not do where the bartender walked away from the assault and never addressed the assailants at all and where the bar manager “handed” Clark back to one of the assailants. In other words, Clark asserted that Martino’s had a duty to stop the fight after it started as the risk of harm from an ongoing assault was foreseeable. The response relied upon the same evidence submitted by Martino’s, as well as an affidavit from Clark’s counsel. {¶6} Martino’s filed a reply in support of its summary-judgment motion, arguing that the evidence could only reveal that the individuals in question were not employees or agents of Martino’s and that the duty to stop an ongoing fight is not supported by Ohio law as Ohio law uses the totality-of-the-circumstances test to determine foreseeability. B. The Evidence 1. Affidavit of the Bar Manager {¶7} The bar manager of Martino’s is the custodian of the surveillance videos that are kept as part of his file and maintained in the ordinary course of business. The bar manager averred that retaining and obtaining surveillance footage of incidents that occur at Martino’s is part of his duties as the manager of Martino’s, and he obtained a video of the incident at issue this matter. He claimed that the video was a fair and accurate depiction of the events that occurred and the time and date stamps are true and accurate and reflect the actual timing of the events displayed. 2. The Video {¶8} The video appears to be an excerpt of the surveillance video. There are four individuals in the video, including Clark, that are engaged in the physical altercation that took place that night. One individual, Forehead, is wearing a white shirt with a red lanyard around his neck. A second individual, Caleb, is wearing a red 5  OHIO FIRST DISTRICT COURT OF APPEALS shirt. The employment or agency status of these two individuals is the governing subject of this case. A fourth individual in a blue shirt, Jaalen, eventually got involved in the altercation. {¶9} When the video begins, Clark is standing with Forehead, Caleb, and the bartender. Forehead is sitting on a red stool near the exit. Clark is standing by another red stool near the exit. The red stools are positioned alone against a partition—one stool on each side—that forms one side of a short walkway to the exit. The stools are positioned away from the other bar seating, and no table is available for use while sitting at these stools. One stool—the stool that Caleb is standing next to—is facing the exit door, and the other stool—the stool that Forehead is sitting on—is facing the bar. The bartender attempts to pull Clark—who is talking to Forehead—toward the exit and Clark slaps the bartender’s arm. Forehead immediately springs into action and punches Clark. Caleb immediately comes around the end of the partition—and the stool that he is standing next to—and punches Clark as well. {¶10} The altercation between these three individuals continues for around 15 seconds. Then, Caleb attempts to guide Clark toward the exit of the bar. As he is doing so, Jaalen comes into the bar from the exit and restarts the altercation. All four individuals then engage in another physical altercation for around ten seconds. At that point, Jaalen leaves the bar. The bar manager then comes into the video and holds Caleb back from following Jaalen out the exit. {¶11} As he is doing so, Clark tries to push Forehead, who is just standing in the area at this point. After that, Forehead pushes Clark towards the exit. Clark then attempts to start a physical altercation with the bartender, who is standing nearby. At that point, the bar manager comes back and grabs Clark and turns him toward the exit. As the bar manager turns around with Clark, Caleb is standing there and reaches for 6  OHIO FIRST DISTRICT COURT OF APPEALS Clark. The bar manager lets Caleb take Clark and Caleb then pushes Clark out of the exit. 3. Deposition of the Bar Manager {¶12} The bar manager testified that, around 2:00 a.m., the bartender called him over and said that he was having a problem with a patron. He walked over and asked the patron what the problem was, but the patron “kind of waived it off” since it was over a “6.50 tab.” So, he proceeded to do other things. He missed the first part of the altercation because he was in the bathroom fixing a paper towel dispenser. He then “went over and broke everything up.” As he was breaking up the altercation, Clark was “walking over fixing his hat and [then] proceed[ed] to like try to swipe at [the bartender].” So, he grabbed Clark by the shirt and told him to stop and that he needed to leave. Clark grabbed him in response “and then that’s when one of the other gentlemen just grabbed him and like threw him out of the door.” When asked if this “other gentleman” was an employee of Martino’s or someone else, the bar manager answered, “Someone else. I have no clue who it was. He was just trying to help me because Mr. Clark had me by the shirt like, too, and he was like very angry.” {¶13} The bar manager was asked to identify the people in the video. He identified Clark and the bartender. He denied knowing Forehead or Caleb. He remembers the man “in the blue shirt,” Jaalen, barreling in and tackling everybody, and he ran over when Jaalen came through the door. He was telling everyone to “stop, just stop.” {¶14} When asked if Martino’s employs bouncers, the bar manager responded, “We do sometimes, but I’m pretty sure that was in the summer so it’s slower that we don’t really need them.” He further stated, “I’m pretty sure the bouncers that worked that night it was so slow, I’d already paid them and asked them 7  OHIO FIRST DISTRICT COURT OF APPEALS to just leave because we were closing up.” When asked if the bartender knew Forehead or Caleb, he responded, “That I don’t necessarily know, no.” He denied seeing Forehead or Caleb in the past. When asked if he talked to any of “those people” after the fight, he answered, “No. I was pretty upset and I told everyone to get out.” 4. Deposition of the Other Bar Employee {¶15} Another bar employee (“the other bar employee”) works at Martino’s and was asked to identify the individuals in the video. She denied knowing Forehead. She said, “He looks familiar, but I don’t know who that is.” She agreed that she knew him from being around Martino’s. When asked how often she would say Forehead was at Martino’s, she replied, “Not often at all.” When asked if he was friends with the bartender, she answered, “He might be. I’m not sure about that.” When asked if she recognized Caleb, she answered, “I do not.” When asked if she recognized anyone else in the video, she said she only recognized the bar manager and the bartender. 5. Deposition of the Bartender {¶16} The bartender on the night in question is a former kicker for the University of Cincinnati (“UC”) football team through the 2020/2021 season. During his deposition, the following exchange occurred regarding bouncers at Martino’s: Q: Did you have bouncers at Martino’s? A: When I played football, I know some of like the guys on the football team that were bigger, [the bar manager] had asked if they could, you know, work the door, make sure people don’t sneak in or stuff like that. And then when I was bartending, there was a lot of people in and out that would hang out or they would be there all night. So I know we had bouncers, but I don’t know how many off the top of 8  OHIO FIRST DISTRICT COURT OF APPEALS my head; or when I was there, it wasn’t the football guys anymore, since they all graduated or transferred. Q: Okay. So were there bouncers that were not football players? A: Yes. Q: And then sometimes when the football players came in, either [the bar manager] or –what other name did you say? A: I call him [the bar owner], but I believe his real name is [the bar owner]. Q: Okay. A: I believe so, though. Q: Okay. Either [the bar manager] or [the bar owner] would ask like one or two of the football players to just keep an eye on the door and make sure people didn’t sneak in? A: Yeah. They would have somebody sit at the front door and check IDs. And they would have somebody sit at the very back door. And there was some -- there would be quite a few times there would be a bouncer stand in the stairwell because they have another side door by the stairwell to where, if you walk all the way down the stairs, there’s a door that people could be let in through. Q: Okay. A: So those are the three locations that we’d have a bouncer at. {¶17} He listed the players who worked at Martino’s when he was playing football and then said, “But then the following years, it was a job for football players, at off-season time, to go work a night or two. So the O line would pick up freshman 9  OHIO FIRST DISTRICT COURT OF APPEALS linemen that would just fall in place, basically.” {¶18} Regarding the night in question, he said he called last call at 1:45 a.m., like they usually do. As he was cleaning, “two kids” were yelling at him because Clark was starting to “create a scene.” He turned around, and Clark was yelling at him and “hit one of the beer bottles towards [him].” He immediately got the bar manager and said Clark needed to leave. Clark “kept yelling about a receipt,” and was “getting really aggressive with it, started yelling.” He said Clark was yelling at him “at the top of his lungs in anger.” He tried to tell Clark that he did not have his receipt because he didn’t serve him. He went to ask the bar manager because the system was closed, and when he came back is when Clark smacked the can at him and started yelling more. He yelled at the other bar employee to find the bar manager. He told Clark “several times” that he needed to leave the bar because they were closing. He said, “And usually, when somebody is drunk and angry like that when we’re closing, we just try and tell them to go outside.” After Clark smacked the can, Clark “walked to his buddy,” and his buddy left. Clark was still there for a while.3 {¶19} The bartender identified Forehead as Forehead. He denied that Forehead was a football player. He said, “We actually didn’t have any football players working during -- because this was during football season. So during football season, football players don’t work.” He said Caleb is related to Forehead “in some way,” either “blood brothers” or “stepbrothers.” When asked if Caleb worked at Martino’s, he replied, “I don’t want to put those words out of my mouth because I was a bartender. So that’s one where, if he was, that’s a [bar manager] question because he does the hiring process.” He continued, “He was there a lot, but I never saw him get paid as a 3 None of these events are shown in the video excerpt before this court. 10  OHIO FIRST DISTRICT COURT OF APPEALS bouncer.” He said that Forehead was there “quite often” when he first started bartending. He stated, “I just didn’t really know of him.” When asked if Forehead would stay until closing, he replied, “Sometimes. Because there was times throughout the night that they would also just disappear.” He continued, “Like they would go down the street to get food and not come back.” {¶20} When discussing Forehead, he pointed to the video and said that bouncers would sit in “the red barstool chair.” He said the bar manager would have the bouncers come in, and they would “have bouncers there, the back, and the side.” When later questioned by counsel for Martino’s, he was again asked where the bouncers usually are, and he said, That red barstool chair that was pointed out in the video -- I forgot where we point it out in the video at, I think it was early on -- that’s where one of the bouncers were usually located at. But we stopped letting people in at 1:30, and we’ll have a -- [the bar owner or the bar manager] will lock the front door. So the only way out is going through it. You can’t come in it. So our bouncer leaves the front, usually, around 1:30. And they’ll move upstairs to get everyone out of the upstairs so we can close upstairs. {¶21} When asked if it was safe to say that Martino’s employees that night were wearing black shirts, he replied, “That night, yes.” When asked if that meant anyone not wearing a black shirt was not a Martino’s employee, he said, That’s kind of hard to answer. I will say, for the most part, working for Martino’s, we’re told to wear either Martino’s attire or Cincinnati attire. In that picture, I know me, [the bar manager], and 11  OHIO FIRST DISTRICT COURT OF APPEALS [the other bar employee] are all wearing black, yes. I don’t know what other bartenders were wearing that night, or the servers. {¶22} When asked if it was “safe to say that the way to designate a Martino’s employee is with black or UC gear,” he answered, “Yes.” {¶23} When again asked if Forehead was an employee at the time, he replied, “I can’t answer that question. I’ve seen him around, but I don’t know if he worked for Martino’s or if he didn’t.” He denied knowing if Forehead or Caleb were working that night. When asked if they had worked there before, he answered, “That is a question for [the bar owner or the bar manager]. I do not hire people.” When asked if “outside of the hiring process” he knew if they were employees, he replied, I didn’t know if they were employees. Our bouncers, we would usually pay on the side, not in front of the bartenders and servers. So if they’re there, they might be there working. I never saw them get paid physically, so I can’t confidently say I know they worked there. But they did hang out there a lot when I was there. {¶24} When asked if they were hanging out there that night, he said, “Yes.” When asked whether they were “just hanging out,” he answered, “I would imagine so. When I’m bartending, I don’t really notice who all’s there, who all’s not unless, they’re in my section.” When asked if, to the best of his knowledge, Caleb and Forehead were patrons that day, he replied, “To the best of my knowledge, yes.” {¶25} When asked why he was outside the bar area in the start of the video, the bartender said he jumped the bar after Clark hit him with “the bottle” because he “wanted to get [Clark] out.” He said the bar manager was “nowhere to be found,” and Clark was “creating a very big scene.” He said, “I mean, as you can see, everyone in 12  OHIO FIRST DISTRICT COURT OF APPEALS the video here was staring at him as he was yelling at basically everyone in the bar.” He described Clark as “intoxicated” and “slurring his words when he was yelling.” He said, “Once he kept going, tried to tell him to leave, wouldn’t leave, and that’s the video.” {¶26} When asked why Forehead hit Clark if the confrontation was between him and Clark, he said, “A lot of people that come to Martino’s know me and [the bar manager] very well.” He said his “title” was very known of being a college football player. He continued, “And I’ve had a lot of people stand up for me and defend me in situations.” He further stated, “But I think it was more of a defense mechanism that – I mean, the way he hit. If it’s on full volume, it sounds like a hit.” He said, “Some people’s first instinct is to defend somebody.” {¶27} When asked by counsel for Martino’s if he would say Caleb and Forehead “just saw a fight and tried to defend” him, he answered, “I would say it goes back to the slap. You could hear it on the video. It was pretty loud. I think that might have just sparked a defense mechanism in them.” When asked if he would say they were “looking out for him as a friend,” he replied, “I would say yes.” {¶28} The bartender identified Jaalen as the gentleman with Clark. 6. Deposition of Clark {¶29} Clark testified that he started the evening by meeting up with his friend Jaalen, who was working at Rhinegeist Brewery. They started their night around 10:00 to 10:30 p.m. at Dive Bar, two establishments over from Martino’s. They were there for around an hour and a half, and then they walked over to Martino’s. A bouncer—a “tall, white guy”—on the right side of the door checked their IDs. He went to the bar, and Jaalen went to the restroom. When asked if he could tell the difference between bar employees and patrons, he replied that he believed the bouncer was 13  OHIO FIRST DISTRICT COURT OF APPEALS wearing a black shirt and the bartenders were wearing black shirts. When asked if he could recall any other bouncers or other employees not behind the bar, he said that he noticed one bouncer inside sitting on a stool around six or seven feet inside the door. He spent almost the entire night up until closing on the patio. {¶30} When they noticed it was getting late, they went inside to get another beer. When he asked for another drink, the bartender said his tab was closed. Jaalen left to go back to Dive Bar to see if he could get them another drink. Clark told the bartender that he did not close his tab and asked for an itemized receipt. The bartender replied that there was “like a thousand people in here.” He could tell the bartender was busy. He proceeded to ask the bartender again for an itemized receipt. He said, “And I also will note, you know, to get his attention after the first time I did kind of prop myself up on the railing under the bar to kind of make myself look a little taller as the bar was busy, and that’s -- that was prior to me asking him again for an itemized receipt, which he kind of scoffed at and then went to the POS system.” After three to four minutes, the bartender gave him a receipt that was not an itemized receipt. He testified, And I looked at him and I said, does this look like an itemized receipt to you? And that’s when he motioned at the bouncer, who is seven feet in front of the door to the right. And that is when I took my receipt that wasn’t itemized. After he motioned and pointed at the bouncer, I went over to the bouncer.4 I showed him my receipt. I said, look, all I’m trying to do is get an itemized receipt. 4 It is at this point that the video excerpt before this court appears to begin. None of the events alleged prior to this are shown in the video excerpt. 14  OHIO FIRST DISTRICT COURT OF APPEALS At that point, you know, I’m kind of focused on my receipt, not on the bouncer. At that point, two or three other employees, you know, kind of came around the front of me again. I’m, at this point, somewhat facing the bar, but, you know, it’s two or three guys around me. And then [the bartender] who scoffed at me came around the bar and came up and ran up to me really quickly. I put my hands out to stop him. And as soon as my hands touched his chest, I was struck by the bouncer that was to the left of me. And I think that first blow is the one that caught me on my cheek. {¶31} He denied being kicked out of the bar “at any point” by the bartender or ever throwing a punch at anyone. He described his interaction with “the bouncer” sitting in the stool. He said, “I kind of went up to the side of him and showed him the receipt that I was looking for. And we were both facing the bar at that point.” He said, “And we exchanged no words.” When asked how he knew this man was a bouncer, he replied, “Because he was sitting on a stool. I’m almost certain he was wearing a black T-shirt.” He continued, “But, again, I knew that he was a bouncer by the bartender motioning over to him, pointing at him, and, you know, me looking at him while he was looking back at me.” He again said that this bouncer “exchanged no words” with him. When asked if he knew this man was a bouncer because he had a black shirt on, he replied, “Black shirt on and that the bartender, you know, motioned over to him. Pointed to him and pointed at me.” He said four people were standing around him prior to the first punch: the bartender, the bouncer, and two others who he could not describe. {¶32} Regarding the bartender motioning to the alleged bouncer, he said, “And that is when he pointed to the bouncer and then pointed to me, and the bouncer 15  OHIO FIRST DISTRICT COURT OF APPEALS looked at me. And before the bouncer could do anything, that’s when I proceeded to walk up to the bouncer, the man on the stool.” {¶33} Clark said that he was in shock after “getting knocked around in the head” and does not recall “a whole lot after that.” He said, Again, I remember trying to get up off the floor at least once or twice, and that’s when my friend Jaalen came back into the bar. And really what all I remember from that point on is him grabbing my arm, picking me up off the floor saying we got to go, we got to go, and he walked me out of the bar. {¶34} When asked if Martino’s staff escorted him out of the bar, he said, “No.” He again said that Jaalen was the one who assisted him out of the bar. He said they were both in shock when they were walking out because Jaalen “got assaulted as well trying to help me.” They then just walked down the street. When asked about his statement that Jaalen got hit as well, he said, “From his story. I can’t speak to Jaalen.” {¶35} The next morning, he picked his wallet up at Martino’s from the same guy that checked his ID the night prior. Then he went to the VA Hospital to get checked out. He said, from what he can recall, they “didn’t see anything serious.” They just found some bruising and “breaking of the skin.” He also had a chipped tooth. He was advised to take over-the-counter pain medication. He scheduled an appointment with a dentist to have his tooth repaired with a filling. He was told the cracked tooth “will most likely present an issue in the future.” That side of his mouth was “really tender,” so he had to be “very careful on how [he] went about eating foods.” He denied having to change his diet. He also denied still experiencing pain in this area, or having to go to the VA Hospital again for any issues related to the incident. He said facing customers at work “with a bruised and beaten face” was embarrassing and a “blow to 16  OHIO FIRST DISTRICT COURT OF APPEALS [his] ego.” The marks were visible on his face for four to five weeks. 7. Affidavit of Clark’s Counsel {¶36} Clark’s counsel averred that the discovery responses attached to her affidavit were Martino’s true and accurate discovery responses. In the responses, Martino’s denied that Caleb or Forehead worked at Martino’s as a bouncer. Martino’s further denied that it had paid either of these individuals to perform work for Martino’s, “as a bouncer or otherwise.” Martino’s further said that it had no documents to produce in response to the requests for the employment files of these individuals as they were not “employees.” In response to other requests for the employment files of other certain unknown individuals (the names in the requests were blacked out), Martino’s denied having any responsive documents to the requests as the individuals named were “temporary/occasional worker[s] and [were] paid cash.” III. Law and Analysis {¶37} In a single assignment of error, Clark argues that the trial court erred in granting summary judgment in favor of Martino’s. In the first issue presented for review, Clark asserts that the trial court “erroneously found that there is no genuine issue of material fact as to whether [Forehead and Caleb] were employees of Martino’s.” In the second issue presented for review, Clark argues that the trial court erred by granting summary judgment on the premises-liability claim in favor of Martino’s “without considering Mr. Clark’s arguments that Martino’s breached its duty to protect invitee Alex Clark from foreseeable harm after the assault.” A. Standard of Review {¶38} “This court reviews a trial court’s grant of summary judgment de novo.” Environmental Solutions & Innovations, Inc. v. Edge Eng. & Science, LLC, 2023- 17  OHIO FIRST DISTRICT COURT OF APPEALS Ohio-2605, ¶ 6 (1st Dist.), citing Mid-Century Ins. Co. v. Stites, 2021-Ohio-3839, ¶ 10 (1st Dist.). “Summary judgment should be rendered in the [moving] party’s favor if the timely filed Civ.R. 56(C) permissible evidence shows that there is no genuine issue of material fact, and the nonmoving party is entitled to judgment as a matter of law.” Id., citing Civ.R. 56(C). “Summary judgment ‘shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made.’” Id., citing Civ.R. 56(C). {¶39} “In other words, to obtain summary judgment, the moving party must show (1) there is no genuine issue of material fact, (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 when reviewing the evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party.” Id. at ¶ 7, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “The moving party has the initial burden of informing the trial court of the basis for the party’s motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the . . . claim.” Id., citing Dresher v. Burt, 76 Ohio St.3d 280, 293 (1996). “If the moving party meets this initial burden, the nonmoving party then bears the burden of setting forth ‘specific facts showing that there is a genuine issue for trial.’” Id., citing Civ.R. 56(E). If the nonmoving party does not do so, then summary judgment, if appropriate, must be entered against the nonmoving party. Civ.R. 56(E). {¶40} “Because the trial court must construe the evidence in the light most favorable to the nonmoving party when ruling on a summary-judgment motion, all 18  OHIO FIRST DISTRICT COURT OF APPEALS competing inferences and questions of credibility must be resolved in favor of the nonmoving party.” Id. at ¶ 8, citing Appellant v. Alpha Phi Alpha Homes, Inc., 2019- Ohio-960, ¶ 9 (9th Dist.). “The trial court is prohibited from weighing the evidence or choosing among reasonable inferences at the summary-judgment stage.” Id., citing Alpha Phi at ¶ 9. “The purpose of summary judgment ‘is not to try issues of fact, but rather to determine whether triable issues of fact exist.’” Id., quoting Walker v. Hodge, 2008-Ohio-6828, ¶ 19 (1st Dist.). “Thus, if reasonable minds could reach different conclusions based on the evidence, then summary judgment should be denied, and the matter should proceed to trial.” Id. {¶41} A litigant’s constitutional right to a trial by jury is not abridged by a proper granting of a summary-judgment motion. See, e.g., Siegel v. State, 2020-Ohio- 4708, ¶ 56 (10th Dist.). The rule properly operates “when ‘no genuine issue remains for trial.’” See id., quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944). B. Vicarious Liability {¶42} “In Ohio, the doctrine of respondeat superior can hold an employer or principal vicariously liable for the tort of its employee or agent in certain circumstances.” Sitton v. Massage Odyssey, LLC, 2020-Ohio-4282, ¶ 8 (1st Dist.), citing Auer v. Paliath, 2014-Ohio-3632, ¶ 13. “For liability purposes, the tort must be committed within the scope of employment.” Id., citing Auer at ¶ 13. “Moreover, in dealing with an intentional tort, . . . to fall within the scope of employment, ‘the employee’s behavior must have been calculated to facilitate or promote the employer’s business.’” Id., quoting Linder v. Am. Natl. Ins. Co., 2003-Ohio-5394, ¶ 25 (1st Dist.), and Byrd v. Faber, 57 Ohio St.3d 56, 59 (1991). “In other words, a successful claim for respondeat superior demonstrates that a principal-agent relationship exists (e.g., 19  OHIO FIRST DISTRICT COURT OF APPEALS employer and employee) and that the perpetrator committed a tortious act within the scope of employment.” Id. {¶43} “If an employer retains control or the right to control the mode and manner of doing the work contracted for, then the relationship is one of principal and agent.” Wright v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-4359, ¶ 9 (10th Dist.), citing Councell v. Douglas, 163 Ohio St. 292 (1955), paragraph one of the syllabus. In determining whether an employer has the degree of control necessary to establish agency, courts examine a variety of factors, including: whether the employer or individual controls the details of the work; whether the individual is performing in the course of the employer’s business rather than in an ancillary capacity; whether the individual receives compensation from the employer, and the method of that compensation; whether the employer or individual controls the hours worked; whether the employer or individual supplies the tools and place of work; whether the individual offers his services to the public at large or to one employer at a time; the length of employment; whether the employer has the right to terminate the individual at will; and whether the employer and individual believe that they have created an employment relationship. Id. at ¶ 10, citing State ex rel. Nese v. State Teachers Retirement Bd., 2013-Ohio-777, ¶ 35, Hanson v. Hynast, 24 Ohio St.3d 171, 175, fn. 5 (1986), and Restatement of the Law 3d, Agency, § 7.07, Comment f (2006). {¶44} Beyond that, a principal may also be held liable under a theory of apparent agency. “In order to establish apparent agency, the evidence must show that the principal held the agent out to the public as possessing sufficient authority to act 20  OHIO FIRST DISTRICT COURT OF APPEALS on his behalf and that the person dealing with the agent knew these facts, and acting in good faith had reason to believe that the agent possessed the necessary authority.” Ohio State Bar Assn. v. Martin, 2008-Ohio-1809, ¶ 41, citing Master Consol. Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570 (1991), syllabus. “Under an apparent- authority analysis, an agent’s authority is determined by the acts of the principal rather than by the acts of the agent.” Id. “The principal is responsible for the agent’s acts only when the principal has clothed the agent with apparent authority and not when the agent’s own conduct has