Opinion
No. 92CV-01-015.
Decided April 29, 1992.
Hyslop Hyslop and Bruce A. Hyslop, for plaintiffs.
Ulmer Berne and Edwin J. Hollern, for defendant Jefferson Industries Corporation.
Lee I. Fisher, Attorney General, and Scott A. Armour, for defendant Bureau of Workers' Compensation.
On January 29, 1992, plaintiff, Charlotte L. Hay, commenced the within action for declaratory judgment against defendants Jefferson Industries Corporation ("Jefferson") and the Ohio Bureau of Workers' Compensation ("bureau"), claiming injuries and damages arising out of a slip-and-fall incident on January 31, 1990. Plaintiff alleges that she fell on an ice-covered sidewalk after work while walking to the employee parking lot. The sidewalk was exclusively in the control of Jefferson.
She admits that she has made claims to the bureau for workers' compensation benefits.
In essence, she claims that Jefferson is liable for her damages; that she is entitled to participate in the fund; and that the court should declare under which claim liability should be fixed.
Although not briefed by the parties, the court finds that declaratory judgment is not available to plaintiff.
The court recognizes that to be entitled to declaratory judgment, three elements must be present: (1) a real controversy between the parties, (2) a controversy which is justiciable in character, and (3) a situation where speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 97, 63 O.O.2d 149, 151, 296 N.E.2d 261, 264; Herrick v. Kosydar (1975), 44 Ohio St.2d 128, 130, 73 O.O.2d 442, 443, 339 N.E.2d 626, 628; Williams v. Akron (1978), 54 Ohio St.2d 136, 144, 8 O.O.3d 125, 130, 374 N.E.2d 1378, 1383.
Given those elements, the issues for which declaratory judgment is sought must be cognizable under R.C. Chapter 2721. Plaintiff is requesting a declaration of which legal remedy is available to her for her personal injury. She is asking for an advisory opinion on liability.
R.C. 2721.02 grants courts of record jurisdiction to declare rights, status or other legal relationships. Such declaration may involve construction of validity of an instrument (R.C. 2721.03), construction of a contract (R.C. 2721.04) or determination of the rights or legal relationships in probate matters (R.C. 2721.05). Nothing in the Act suggests that the court should elect remedies available to a personal injury plaintiff. Moreover, if the court were conferred such jurisdiction, such declaration would not terminate the controversy between the parties or remove uncertainty. Plaintiff would still have the burden of proving those facts necessary to establish her right to recover from Jefferson or participate in the bureau's fund. Under R.C. 2721.06, since declaratory judgment will not terminate the controversy of liability or right to participate, the court declines to consider declaratory judgment.
Jefferson moved to dismiss plaintiffs' complaint against it pursuant to Civ.R. 12(B)(6). It claims that it is immune from suit by plaintiff under R.C. 4123.74, which provides, inter alia, that:
"* * * [E]mployers * * * shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment * * * whether or not such injury * * * or death is compensable under sections 4123.01 to 4123.94 of the Revised Code."
Under Civ.R. 12(B)(6), Jefferson asserts that plaintiffs failed to state a claim upon which relief would be granted. In O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus, the Ohio Supreme Court established the standard for dismissal as follows:
"In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted * * *, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. * * *"
In ruling on a motion to dismiss, the court is required to interpret all material allegations in the complaint as true and taken as admitted. State ex rel. Alford v. Willoughby Civ. Serv. Comm. (1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230, 390 N.E.2d 782, 785; Royce v. Smith (1981), 68 Ohio St.2d 106, 108, 22 O.O.3d 332, 333, 429 N.E.2d 134, 136; Phung v. Waste Management, Inc. (1986), 23 Ohio St.3d 100, 102, 23 OBR 260, 262, 491 N.E.2d 1114, 1116.
The allegations in the complaint are to be liberally construed by the court in a light most favorable to the plaintiff. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 69 O.O.2d 178, 318 N.E.2d 557. An action should not be dismissed simply because the court doubts that the plaintiff will be able to prove the allegations in the complaint. Id.
Within the purview of the Workers' Compensation Act, an accidental injury is compensable when it is "received in the course of, and arising out of, the injured employee's employment." R.C. 4123.01(C) The right to participate in the fund depends on whether the employment (through its activities, conditions or environments) has some direct or indirect causal connection with the injury. In that analysis, it is not relevant whether there was fault or neglect on the part of the employer or its employees. Indus. Comm. v. Weigandt (1921), 102 Ohio St. 1, 130 N.E. 38, paragraph two of the syllabus. In Weigandt, the injury occurred within the employer's premises immediately prior to commencing work. "An employee is in the course of his employment while he is performing the obligation of his contract of employment." Indus. Comm. v. Davison (1928), 118 Ohio St. 180, 160 N.E. 693, paragraph two of the syllabus.
Generally, when an employee has a fixed and limited place of employment, an injury sustained while traveling to and from such situs lacks causal connection with such employment, does not arise out of and in the course thereof and is not compensable. Lohnes v. Young (1963), 175 Ohio St. 291, 25 O.O.2d 136, 194 N.E.2d 428. In reaffirming its position that an injury is not compensable when sustained traveling to and from work, the Supreme Court in Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 N.E.2d 448, looked to the totality of the facts and circumstances to establish a causal connection by analyzing the temporal, modal and situational relationship of the injury to employment.
As an exception to the general "en route" rule set forth in Bralley and Lohnes, the Supreme Court has long recognized a right to compensation for injuries sustained within the zone of employment. In Indus. Comm. v. Barber (1927), 117 Ohio St. 373, 159 N.E. 363, the Supreme Court found that the decedent's contract of employment required him to enter the plant through a single gate maintained as a common passageway for pedestrians and vehicles. While approaching the gate, decedent was struck and killed by another employee's vehicle. In finding the death compensable, the court found that "the hazards of that condition and environment were hazards to which the decedent was required to expose himself in the performance of his contract of employment." Id. at 380, 159 N.E. at 365. "When [an employee], for the purpose of entering upon his employment, has entered into the sphere or zone controlled by his employer, and is pursuing a course with reference to which he has no option, he is then not only within the conditions and environments of the plant of his employer, but he is then in the course of his employment * * *." Id. at 381, 159 N.E. at 365.
In Marlow v. Goodyear Tire Rubber Co. (1967), 10 Ohio St.2d 18, 39 O.O.2d 11, 225 N.E.2d 241, the Supreme Court reviewed the judicial history of coming and going from a fixed situs of employment, and it found that where an employee received an injury in a parking lot owned, maintained and controlled by his employer, he was in the zone of his employment. His injuries were proximately caused by a natural hazard of that zone consistent with his employment, its activities, conditions or environments. Therefore, his injuries were compensable.
Apparently unsatisfied with the scope of its decisions in Barber and Marlow, the Supreme Court encumbered the hazard or zone of employment rules previously announced by adopting a "special hazard rule" for injuries sustained off the work premises, before or after work, in Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570. The court concluded that the Weigandt causal connection test should be analyzed in the context of the totality of the circumstances. The special hazard rule will apply: "`(1) if "but for" the employment, the employee would not have been at the location where the injury occurred and (2) if the "risk is distinctive in nature or quantitatively greater than risks common to the public."'" Id. at 394, 6 OBR at 443, 453 N.E.2d at 575. It appears that this case facially applies only to coming and going to a fixed situs of employment. In MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 572 N.E.2d 661, the Supreme Court pulled the plug on Littlefield by returning to the rationale of Bralley and Barber. The "special hazard" rule was subordinated to the totality of the circumstances. It appears that the court did not overrule the "special hazard" rule; rather, it simply found that the risk claimant was subjected to was not destructive in nature, or quantitatively greater than the risk common to the public at large. But the rule was rendered meaningless in the context in which it was originally established.
Between Littlefield and MTD fell Griffin v. Hydra-Matic Div., Gen. Motors Corp. (1988), 39 Ohio St.3d 79, 529 N.E.2d 436, and Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 551 N.E.2d 1271. In Griffin, the Supreme Court limited the special hazard analysis to coming and going cases; it had no application to an injury sustained by an employee on the premises of an employer. In Fisher, the court found that the phrases "in the course of" and "arising out of employment" are conjunctive. "In the course of" refers to the time, place and circumstances of the injury. The court applied the "totality of the facts and circumstances" rationale of Lord v. Daugherty (1981), 66 Ohio St.2d 441, 20 O.O.3d 376, 423 N.E.2d 96, to define "arising out of." These factors (proximity, employer control of the scene and employer benefit) so significantly overlap and merge with time, place and circumstance that the distinction between "in the course of" and "arising out of" is blurred to such a degree that their espoused conjunctive relationship is reduced to a redundant disjunctive analysis. In essence, the mechanical test created dilutes the significance of a fixed or varied situs, ignores the hazards within the zone of employment and focuses little attention on the contract of hire and undertakings consistent therewith, which in some logical manner pertain to or are incidental to the employment. However, by not embracing Lord and Kohlmayer v. Keller (1970), 24 Ohio St.2d 10, 53 O.O.2d 6, 263 N.E.2d 231, their application to an injury occurring outside a particular zone of employment might still be permissible.
As Jefferson asserts, Griffin appears dispositive of its motion to dismiss. The sidewalk in issue was on Jefferson's property and was used by employees going to the employer's parking lot. The facts in Griffin are: "[A]ppellee had completed her employment for the day and was traversing a driveway between the plant of appellant and its parking lot." Griffin, supra, 39 Ohio St.3d at 79, 529 N.E.2d at 437. Since plaintiff herein sustained an injury on the premises of her employer while traveling to the parking lot, her remedy is through the fund. Jefferson is immune from suit. The court finds no set of facts alleged which would entitle her to recover from Jefferson.
Jefferson's motion to dismiss be and hereby is sustained.
Judgment is entered accordingly. The court finds no just cause for delay.
Reporter's Note: There was no appeal from the court's ruling.