[Cite as Elyria v. Scott, 2015-Ohio-4619.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

CITY OF ELYRIA                                        C.A. No.       13CA010459

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRADLEY SCOTT, Deceased, et al.                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellees                                     CASE No.   11CV172960

                                  DECISION AND JOURNAL ENTRY

Dated: November 9, 2015



        CARR, Judge.

        {¶1}     Appellant, City of Elyria, appeals from the judgment of the Lorain County Court

of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On August 27, 2004, Bradley Scott, an Elyria Police Officer, attended a union-

sponsored steak fry. Scott was a union officer, and his union duties included organizing, setting

up for, and running the steak fry. While setting up for the steak fry, a storm approached. Scott

and an event volunteer, Detective Lisa Dietsche, left the site of the steak fry. Their intention was

to pick up some needed supplies for the steak fry, drop Scott’s motorcycle at his residence, and

get something to eat. Scott and Dietsche decided to drop off Scott’s motorcycle first and then

ride together in Dietsche’s vehicle while completing their errands. Tragically, on the way to

Scott’s residence, he was struck and killed by another motorist.
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       {¶3}    Under the “union leave” provision of the collective bargaining agreement between

the Elyria Patrolmen’s Association and the City of Elyria (“the City”), the union was allotted

twenty days per year in which selected members of the union could take paid leave to perform

union functions.    This provision allowed members to be paid their regular salary while

performing union functions, without using their personal vacation time. At the time of his death,

Scott was on supervisor-approved union leave and was receiving his regular salary.

       {¶4}    The appellee, Scott’s widow, filed a death benefits claim with the Ohio Bureau of

Workers’ Compensation. After death benefits were approved, the City appealed the order. The

Industrial Commission of Ohio allowed the claim, and the City appealed to the Lorain County

Court of Common Pleas. Mrs. Scott also filed a complaint in the Lorain County Court of

Common Pleas. Both parties filed cross-motions for summary judgment, and trial court denied

both motions. Subsequently, Mrs. Scott filed a voluntary dismissal, without prejudice.

       {¶5}    Mrs. Scott re-filed her complaint, and both parties filed cross-motions for

summary judgment a second time. The trial court granted Mrs. Scott’s motion for summary

judgment, finding that Scott was in the course and scope of his employment at the time of his

death. Thereafter, the City filed a timely notice of appeal.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED ERROR IN GRANTING APPELLEE’S
       MOTION FOR SUMMARY JUDGMENT ON THE BASIS THAT THERE
       WERE NO ISSUES OF MATERIAL FACT.

       {¶6}    In its sole assignment of error, the City argues that there are no genuine issues of

material fact remaining to be litigated, the moving party is entitled to judgment as a matter of

law, and the evidence demonstrates that reasonable minds can come to but one conclusion.
                                                 3


Specifically, the City argues, as a matter of law, that Scott’s death did not occur during the

course and scope of his employment with the City and participation in the Ohio Workers’

Compensation system should not be allowed.1 The parties do not dispute the relevant facts and

agree that the issue is a question of law.

       {¶7}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist. 1983).

       {¶8}    Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (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 the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶9}    The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact.       Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).


       1
          While this case was pending on appeal, the Ohio Supreme Court issued its opinion in
Friebel v. Visiting Nurse Assn. of Mid-Ohio, 142 Ohio St.3d 425, 2014-Ohio-4531, which
clarified the analysis required relevant to workers’ compensation cases, reiterating the well-
established tests and considerations noted within this opinion. The Friebel court reaffirmed that
the dual purpose test recognized by some jurisdictions outside of Ohio does not and has never
been applicable in Ohio. This Court ordered the parties to this appeal to submit supplemental
briefs addressing whether the recent holding in Friebel had any applicability to the issues in this
appeal, i.e., whether the dual purpose test was implicated in the motions below or the trial court’s
judgment. All parties agreed that the dual purpose test played no role in the matter before the
trial court and that the appeal was ripe for determination on the basis of the application of the
well-established tests cited herein.
                                                  4


Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party's pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

           {¶10} R.C. 4123.01(C) defines injury for the purpose of workers' compensation as “any

injury, whether caused by external accidental means or accidental in character and result,

received in the course of, and arising out of, the injured employee's employment.”

           {¶11} In order for an employee's injury to be compensable by the state workers'

compensation fund it must be “received in the course of, and arising out of, the injured

employee's employment.” R.C. 4123.01(C). This test is conjunctive; both prongs of the formula

must be satisfied before compensation will be allowed. Fisher v. Mayfield, 49 Ohio St.3d 275,

277 (1990). As a general rule, the Ohio workers' compensation statutes must be “liberally

construed in favor of the employee.”          R.C.4123.95; Fisher, 49 Ohio St.3d at 278. It is

“axiomatic” that this rule of construction applies to the phrase “in the course of, and arising out

of.” Id.

In the Course Of Employment

           {¶12} The Supreme Court of Ohio defined “in the course of employment”:

           The phrase ‘in the course of employment’ limits compensable injuries to those
           sustained by an employee while performing a required duty in the employer's
           service. * * * “To be entitled to workmen's compensation, a workman need not
           necessarily be injured in the actual performance of work for his employer.” * * *
                                                      5


       An injury is compensable if it is sustained by an employee while that employee
       engages in activity that is consistent with the contract for hire and logically
       related to the employer's business.

(Internal citations omitted.) Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 120 (1998).

The determination of whether an injury occurs in the course of employment requires courts to

look at the time, place, and circumstances of the injury. Id., citing Fisher, 49 Ohio St.3d at 277.

These factors are used to determine “whether the required nexus exists between the employment

relationship and the injurious activity.” Ruckman, 81 Ohio.St.3d at 120.

       {¶13} In this case, Scott was injured while performing duties as an officer of the union.

His activities focused on organizing, setting up for, and running the union-sponsored steak fry at

a local civic pavilion. The steak fry was regularly attended by union members, their families,

and other members of the community. At the time of the accident, Scott was on paid union

leave, pursuant to the contract between the union and the City. The contract expressly provided

for union delegates to perform union work while being paid by the City. Scott’s supervisor

approved his request for eight hours of union leave, and Scott received his regular pay on that

day. Although the accident did not occur at Scott’s workplace, Scott traveled to fulfill his

responsibilities for the steak fry. Thus, the travel was not exclusively personal in nature. It was

directly related to Scott’s union responsibilities.

       {¶14} In this case, fulfilling the obligations of being a union officer and preparing for a

union function were consistent with the contract for hire and logically related to Scott’s

employment.      The contract between the union and the City of Elyria governed Scott’s

employment and his ability to function in a union capacity on city time. As stated above, the

contract expressly provided for union delegates to perform union work while being paid by the

City. The City and the union clearly contemplated employees performing union functions while
                                               6


being paid by the City. Furthermore, the parties agreed upon a system by which those functions

would be accomplished.

       {¶15} This case is analogous to Kohlmayer v. Keller, 24 Ohio St.2d 10 (1970). In that

case, the Supreme Court of Ohio found that an injury sustained by an employee while attending a

picnic that was sponsored, supervised, and paid for by the employer for the purpose of

generating friendly relations with employees occurred in the course of employment. Id. at 15.

The activity was consistent with the contract for hire and logically related to the employment.

Id. Among the factors cited by the Court were the purpose to improve employee relationships

and the employer’s administrative and leadership role in the event. Id. The Court noted the

importance of improved employee relationships and the resulting benefit to employers, even

when those benefits are not immediately measurable. Id. Similar to Kohlmayer, the City of

Elyria played an administrative role by including specific provisions in the contract between the

union and the City sanctioning employees to lead union activities on the City’s time, creating a

system by which that would be done, and approving Scott’s union leave pursuant those

provisions. Furthermore, as the employer in Kohlmayer stood to benefit from improved

employee relations resulting from the company picnic, the City stood to benefit from the union-

sponsored steak fry.

       {¶16} In contrast, this case is distinguishable from Koger v. Greyhound¸ 90 Ohio

App.3d 387 (1st Dist.1993), where an employee was injured while picketing during a strike. The

court found that picketing was not incidental to the employee’s employment duties. Id. at 390.

His employer had no role in governing the picketing and his presence on the picket line came at

the expense of the union.     Here, Scott’s leave required approval from the City and Scott

performed his duties on the City’s time.
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       {¶17} Based upon the undisputed facts and drawing all inferences in the City’s favor,

reasonable minds could come to but one conclusion that Scott’s injury arose in the course of his

employment.

B. Arising Out Of Employment

       {¶18} Whether an injury arises out of employment is a question of fact. See Pilar v.

Ohio Bur. of Workers' Comp., 82 Ohio App.3d 819 (1992); Dolby v. Gen. Motors Corp., 62 Ohio

App.3d 68 (1989). “The “arising out of” prong denotes a causal connection between the

employment and the injury.” Luo v. Gao, 9th Dist. Summit No. 23310, 2007-Ohio-959, ¶ 11,

citing Fisher, 49 Ohio St.3d at 277-278. “To determine whether a sufficient causal relationship

exists, Ohio courts employ a ‘totality of the facts and circumstances’ analysis.” Fisher, 49 Ohio

St.3d at 277. Relevant factors include “(1) the proximity of the scene of the accident to the place

of employment, (2) the degree of control the employer had over the scene of the accident, and (3)

the benefit the employer received from the injured employee's presence at the scene of the

accident.” Id., quoting Lord v. Daugherty, 66 Ohio St.2d 441 (1981), paragraph one of the

syllabus. However, these factors are not intended to be exhaustive. Ruckman, 81 Ohio St.3d at

120.

       {¶19} In this case, Scott left the event site and the City did not control the location of the

accident. However, Scott intended to pick up supplies and return to the site of the steak fry at the

time of the accident. The duties associated with running the event gave rise to the departure

from the event location. Furthermore, the event itself benefitted the employer. It allowed

officers to socialize with other officers and their families and boosted morale among employees.

       {¶20} This case is similar to Fisher, where the Supreme Court of Ohio held that a

teacher’s injuries arose out of her employment. Fisher, 49 Ohio St.3d at 279. In Fisher, a
                                                8


teacher was injured while collecting money for an informal flower fund used to send flowers to

coworkers during times of bereavement or to celebrate significant life events. Id. at 275-76.

While collecting money at a neighboring school, the teacher fell and was injured. Id. The

teacher was not assigned to the neighboring school or instructed by the school board to collect at

that school. Id. Instead, she went on her own volition. Id. The Court held that the teacher’s

injury occurred in the course of her employment despite not occurring at her workplace. Id. at

279. Although the school board did have control over the neighboring school, the Court also

took into account the school board’s knowledge of the fund’s existence and its acquiescence to

the fund’s perpetuation. Id. at 280. Similar to the teacher in Fisher, the injury did not occur at

Scott’s workplace and his employer did not direct his actions. Additionally, the City was fully

aware of the activity and acquiesced to its existence by approving union leave so employees

could work the event.

       {¶21} Furthermore, as in Fisher, the context surrounding the accident supports the

conclusion that Scott’s accident arose out of his employment. Although the accident occurred

while en route to Scott’s residence, the overall purpose of the errand was focused on facilitating

the steak fry. Scott and Dietsche intended to purchase supplies for the event, buy a meal for

themselves, and drop off Scott’s motorcycle at his residence. The supplies were needed to feed

patrons of the event. Because he was setting up the event at a civic club pavilion, purchasing a

meal from a local restaurant was a convenient option which would have allowed Scott to

continue his primary duties of preparing for the steak fry. Thus, the injury arose out of Scott’s

employment because there is a causal connection between the injury and his employment.

       {¶22} This case is distinguishable from Koger, supra, on the issue of whether an injury

arose out of employment as well. Koger, 90 Ohio App.3d at 391. In that case, the court found
                                                 9


that picketing, a confrontational cessation of work, did not benefit the employer, and

compensation was denied. Id. The employee’s activity at the time of his injury was in pursuit of

his own competing interest, rather than common interests. Id. In this case, Scott did not cease

working in a manner confrontational to the City, and his efforts were not in pursuit to his own

competing interest. Rather, there was benefit to the City and the union.

       {¶23} The undisputed facts demonstrated that duties associated with the event gave rise

to Scott’s departure from the event site and benefitted the City by boosting morale among

employees. This supports the legal conclusion that his injuries arose out of his employment.

C. Conclusion

       {¶24} Because no genuine issues of material fact remained to be litigated; because Mrs.

Scott was entitled to judgment as a matter of law; and because reasonable minds could come to

but one conclusion, that conclusion being adverse to City, the trial court properly granted Mrs.

Scott’s motion for summary judgment.

                                                III.

       {¶25} City’s assignment of error is overruled. The judgment of the Lorain County Court

of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      DONNA J. CARR
                                                      FOR THE COURT



MOORE, J.
CONCURS.

HENSAL, P. J.
DISSENTING.

       {¶26} I do not agree that Mr. Scott’s death occurred “in the course of” and “arising out

of” his employment. R.C. 4123.01. It is not disputed that Mr. Scott was taking “leave” at the

time of his death. Although the union’s contract with the City allowed Mr. Scott to use “union

leave” instead of his personal vacation time for his absence from duty, the fact that he had to use

any form of leave strongly suggests that the steak fry was not “a required duty in the employer’s

service” and had no more than an incidental benefit to the City. Ruckman v. Cubby Drilling,

Inc., 81 Ohio St.3d 117, 120 (1998). I do not agree with Mrs. Scott’s argument that “union

leave” is akin to an officer appearing in court to testify. Rather, upon careful consideration of all

of the facts, I would hold that Mr. Scott’s death is not compensable under Section 4123.01.
                                          11


APPEARANCES:

MARGARET O’BRYON, Attorney at Law, for Appellant.

DAVID J. BRIGGS, Attorney at Law, for Appellee.

TIMOTHY X. MCGRAIL, Assistant Attorney General, for Appellee.
