[Cite as Kenney v. Ables, 2016-Ohio-2714.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

KRISTIN KENNEY, ET AL.                           JUDGES:
                                                 Hon. Sheila G. Farmer, P.J.
        Plaintiffs-Appellants                    Hon. William B. Hoffman, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 15-CA-68
SARAH ABLES, ET AL.

        Defendants-Appellees                     OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Licking County Court of
                                              Common Pleas, Case No. 13 CV 01202

JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                       April 26, 2016

APPEARANCES:

For Plaintiffs-Appellants                     For Defendants-Appellees
                                              Sarah Ables

C. DANIEL HAYES                               BELINDA S. BARNES
Hayes Law Offices                             Gallagher, Gams, Pryor,
195 E. Broad Street                           Tallan & Littrell LLP
PO Box 958                                    471, East Broad St, 19th Floor
Pataskala, Ohio 43062                         Columbus, Ohio 43215-3872

                                              AND

                                              For Defendants-Appellees
                                              Progressive Casualty Insurance Co., Inc.

                                              JOEL S. MCPHERSON
                                              Progressive Direct Insurance Company
                                              5115 Parkcenter Ave, Suite 260
                                              Dublin, Ohio 43017
Licking County, Case No. 15-CA-68                                                         2

Hoffman, J.


       {¶1}    Plaintiffs-appellants Kristin Kenney, et al. (hereinafter “Appellant Kristin”

and “Appellant Stephen”, individually; “Appellants”, collectively) appeal the August 18,

2015 Judgment Entry entered by the Licking County Court of Common Pleas, which

granted summary judgment in favor of defendant-appellee Sarah Ables.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}    Appellant Kristin and Appellee were both employed at Kohl’s Department

Store in Newark, Ohio. On December 23, 2011, Appellant Kristin and Appellee left the

store after completing their shifts and were walking to their respective vehicles which were

parked in the employee area of the store parking lot. Appellee owned a 1997 Acura CL

which had a manual transmission and was equipped with an automatic starter. As she

approached her vehicle, Appellee depressed what she thought was the door unlock

button on her key fob. The Acura, which was in gear, automatically started, jumped a

curb, and struck Appellant Kristin, pinning her to the building. Appellant Kristin sustained

significant injuries as a result.

       {¶3}    On December 5, 2013, Appellant Kristen and her husband, Appellant

Stephen, filed a Complaint against Appellee in the Licking County Common Pleas Court,

asserting claims of negligence and loss of consortium. Appellee answered, maintaining

she was entitled to immunity pursuant to R.C. 4123.741, because the injury occurred “in

the course of and arising out of” Appellant Kristin’s employment; therefore, was

compensable under the workers’ compensation statutes.

       {¶4}    Appellant Kristin subsequently filed for Workers' Compensation benefits

based upon the injuries sustained as a result of this accident. The Bureau of Workers'
Licking County, Case No. 15-CA-68                                                        3


Compensation found Appellant Kristen was entitled to benefits. The trial court stayed the

matter pending the workers’ compensation appeal. The decision was affirmed on appeal

by a Staff Hearing Officer of the Ohio Industrial Commission on December 8, 2014.

      {¶5}   The trial court reactivated the case on May 18, 2015. On May 26, 2015,

Appellee filed a motion for summary judgment premised upon the Fellow Servant

Immunity Doctrine, R.C. 4123.741. Appellants filed a memorandum contra on June 17,

2015, and Appellee filed a reply on July 1, 2015.

      {¶6}   Via Judgment Entry filed August 18, 2015, the trial court granted summary

judgment in favor of Appellee, and dismissed Appellants’ complaint. The trial court found

"the actionable conduct of engaging the automatic starter occurred in the course of

employment." The trial court added "assuming the alleged actionable conduct could have

occurred prior to the incident, [Appellant] has come forth with no evidence of [Appellee's]

negligence." The trial court further found Appellant Stephen's claim of loss of consortium

was derivative; therefore, because it found Appellee was not liable to Appellant Kristin,

Appellee could not be liable to Appellant Stephen.

      {¶7}   It is from this judgment entry Appellants appeal, raising as their sole

assignment of error:

             “I. THE LOWER COURT COMMITTED REVERSIBLE ERROR

      WHEN IT IMPROPERLY WEIGHED THE SUBMITTED EVIDENCE AND

      GRANTED APPELLANTS’ [SIC] MOTION FOR SUMMARY JUDGMENT

      ON THE ISSUE OF R.C. 4123.741 CO-EMPLOYEE IMMUNITY.”
Licking County, Case No. 15-CA-68                                                            4


                                      SUMMARY JUDGMENT

        {¶8}   Civ. R. 56 states in pertinent part:

        {¶9}   “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that there

is no genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law. No evidence or stipulation may be considered except as stated in this rule.

A 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, that party being entitled to have the evidence or

stipulation construed mostly strongly in the party's favor. A summary judgment,

interlocutory in character, may be rendered on the issue of liability alone although there

is a genuine issue as to the amount of damages.”

        {¶10} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 424 N.E.2d

311. The court may not resolve any ambiguities in the evidence presented. Inland Refuse

Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 474 N.E.2d

271. A fact is material if it affects the outcome of the case under the applicable substantive

law. Russell v. Interim Personnel, Inc. (6th Dist.1999), 135 Ohio App.3d 301, 733 N.E.2d

1186.
Licking County, Case No. 15-CA-68                                                            5


       {¶11} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212. This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.

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

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party's claim. Drescher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

Once the moving party meets its initial burden, the burden shifts to the nonmoving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle (12th Dist.1991), 75 Ohio App.3d 732, 600 N.E.2d 791.

                                                  I

       {¶13} In their sole assignment of error, Appellants maintain the trial court erred in

granting summary judgment in favor of Appellee.

       {¶14} R.C. 4123.74 and 4123.741 provide civil immunity to a fellow employee who

causes an accident to a co-worker while the activity is related to the "victim" employee's

employment. Specifically, R.C. 4123.741 provides:

              No employee of any employer as defined it division (B) of section

       4123.01 of the Revised Code, shall be liable to respond in damages at

       common law or by statute for any injury or occupational disease, received

       or contracted by any other employee or such employer in the course of and
Licking County, Case No. 15-CA-68                                                           6


       arising out of the later employee's employment, or for any death resulting

       from such injury or occupational disease, on the condition that such injury,

       occupational disease, or death is found to be compensable under sections

       4123.01 to 4123.94, inclusive of the Revised Code.

       {¶15} In Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St.2d 18, the

Ohio Supreme Court expounded on the meaning of the term "in the course and arising

out of" as it relates to injuries sustained by an employee while in the parking lot of his/her

employer:

              An employee who, on his way from the fixed situs of his duties after

       the close of his workday, is injured in a collision of his automobile and that

       of a fellow employee occurring in a parking lot adjacent to such situs of duty

       and owned, maintained and controlled by his employer for the exclusive use

       of its employees, receives such injury "in the course of, and arising out of"

       his employment, within the meaning of that phrase in the Workmen's

       Compensation Act, Section 4123.01(C), Revised Code.

       {¶16} The parties do not dispute Appellant Kristin sustained her injuries "in the

course of, and arising out of" her employment. Appellant Kristin and Appellee were

employees of Kohl's at the time of the accident. They had both exited the store after

completing their shifts and were walking to their respective vehicles, located in the Kohl's

parking lot, when the accident occurred.          Furthermore, the Bureau of Workers'

Compensation found Appellant Kristin was entitled to benefits as a result of the injuries

sustained when she was struck by Appellee's vehicle.
Licking County, Case No. 15-CA-68                                                        7


         {¶17} Appellants, however, argue the trial court incorrectly concluded Appellee's

actionable conduct occurred "in the course of, and arising out of" her employment.

         {¶18} In Donnelly v. Herron (2000), 88 Ohio St.3d 425, the Ohio Supreme Court

held: "R.C. 4123.721 extends immunity to a coemployee only when the actionable

conduct occurs 'in the course of, and arising out of' the coemployee's employment within

the meaning of that phrase in the Workers' Compensation Act." The Donnelly Court

noted:

                The definition of "employee" set forth in R.C. 4123.01(A)(1)(a), as

         "every person in the service of” a qualifying employer, is equally applicable

         to both employees who form the subject of R.C. 4123.741. Thus, nothing

         more is required of the employee seeking immunity to be "in the service of"

         the employer than is required of the injured employee in obtaining

         compensation coverage. In addition, any employee who seeks workers'

         compensation benefits must be in the service of a qualifying employer, and

         if we held that a coemployee is not in the service of a qualifying employer

         while driving in the employer's parking lot on his way to and from work, we

         would put in serious jeopardy the rights of an entire class of injured

         claimants who seek workers' compensation benefits under similar

         circumstances. Id. at 428-29.

         {¶19} Appellants assert Appellee’s actionable conduct was not the result of her

coming or going to work, but rather the result of her maintaining a manual transmission

vehicle with a faulty automatic starter for four years. Appellants submit Appellee was

aware the automatic starter was faulty long before the accident; therefore, the actionable
Licking County, Case No. 15-CA-68                                                        8


conduct did not occur "in the course of and arising out of" her employment. We disagree.

Appellee's actionable conduct was the depressing of the automatic starter button, which

occurred "in the course of and arising out of" her employment. We find Appellants failed

to present evidence Appellee knew the starter was faulty. Appellee testified she knew

the vehicle had an automatic starter, but, in the four years she owned the vehicle, she

never used the automatic starter and did not believe it worked.

       {¶20} We now turn to Appellants argument the trial court erred in granting

summary judgment in favor of Appellee on Appellant Stephen’s loss of consortium claim.

"[A] claim for loss of consortium is derivative in that the claim is dependent upon the

defendants having committed a legally cognizable tort upon the spouse who suffers bodily

injury." Donnelly, supra at *7 citing Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St. 3d 84.

Because Appellee is not liable to Appellant Kristin for injuries pursuant to R.C. 4123.741,

there is no legally cognizable tort against Appellee; therefore, Appellant Stephen has no

derivative claim to loss of consortium.

       {¶21} Appellants' sole assignment of error is overruled.
Licking County, Case No. 15-CA-68                                                   9


      {¶22} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, J.

Farmer, P.J. and

Baldwin, J. concur
