[Cite as Serraino v. Fauster-Cameron, Inc., 2013-Ohio-329.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




LINDAMARIE SERRAINO,

        PLAINTIFF-APPELLANT,                                  CASE NO. 4-12-11

        v.

FAUSTER-CAMERON, INC. ET AL.,                                 OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 09-CV-40153

                                     Judgment Affirmed

                           Date of Decision: February 4, 2013




APPEARANCES:

        Marc G. Williams-Young for Appellant

        Scott G. Deller for Appellee, Fauster-Cameron, Inc.,

        Joshua W. Lanzinger for Appellee, Bureau of Workers’ Comp.
Case No. 4-12-11


ROGERS, J.

           {¶1} Plaintiff-Appellant, Lindamarie Serraino, appeals the judgment of the

Court of Common Pleas of Defiance County granting summary judgment in favor

of Defendants-Appellees, Fauster-Cameron, Inc., dba Defiance Clinic (“Clinic”),

Serraino’s employer, and the Ohio Bureau of Workers’ Compensation (“BWC”),

barring her from participating in the workers’ compensation fund as a result of

contracting salmonella poisoning from an allegedly contaminated lunch served in

the Clinic’s break room.1 On appeal, Serraino concedes that there are no genuine

issues of material fact, but argues that the facts and prevailing law establish that

her injury, i.e., salmonella poisoning, was sustained both “in the course of” and

“arising out of” her employment with the Clinic. Consequently, Serraino argues

that the trial court erred when it granted summary judgment in favor of the

Appellees and when it denied her motion for partial summary judgment. Based on

the following, we affirm the trial court’s judgment.

           {¶2} Sometime between 2002 and 2003, the Clinic hired a consulting firm

to survey its employees about their satisfaction with their work environment. As a

result of the survey, the Clinic implemented several programs for its employees,

including a lunch program.




1
    The BWC is the only appellee that filed a brief in this appeal.

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       {¶3} In 2004, the Clinic began a lunch program in which it periodically

invited local caterers to sell their food to employees in the Clinic’s break room.

The caterers, without guidance from the Clinic or its employees, predetermined

what food they would offer. The menus were then forwarded to the Clinic, which

advertised them via flyers and an employee newsletter. The caterers, without

guidance or assistance from the Clinic or its employees, purchased, stored, and

prepared the food at their place of business and transported the food to the Clinic.

Once at the Clinic, the caterer, without guidance or assistance from the Clinic or

its employees, prepared the break room for food service, served the food to

patrons, and collected payment from each patron.

       {¶4} Anyone with access to the break room, including the general public,

could purchase food from the caterers. Participation in the lunch program was

optional, and employees who opted to purchase food from the caterers paid full

price. The Clinic did not receive any portion of the caterers’ sales.

       {¶5} In June 2005, Serraino began her employment with the Clinic as a

medical technologist. During the first three months of her employment, Serraino

trained during first shift, which lasted from 7:00 a.m. to 5:00 p.m. At this time,

Serraino was allowed a one-hour unpaid lunch break and was free to spend her

lunch break as she saw fit. During the first full week of August 2005, Serraino ate

several catered lunches during her lunch break.        On Saturday of that week,


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Serraino became ill and sought medical treatment. Shortly thereafter, Serraino

was diagnosed with salmonella poisoning.

       {¶6} In addition to Serraino, there were five other confirmed cases of

salmonella poisoning in Defiance County during the same period. The Defiance

County Health Department (“DCHD”) investigated the outbreak and issued a

report containing its findings and conclusions. According to the report, each of

the individuals who contracted salmonella poising consumed one or more catered

lunches served at the Clinic during the first full week of August 2005.

Consequently, much of the DCHD’s investigation focused on the caterer, Classic

Catering by Kim Brown (“Classic Catering”). The DCHD, however, was unable

to identify the source of the salmonella bacteria that caused the outbreak.

       {¶7} In January 2007, Serraino filed an application for workers’

compensation benefits, claiming eligibility due to her salmonella poisoning. In

February 2007, a district hearing officer for the Industrial Commission denied her

claim. Serraino appealed the decision. In May 2007, a staff hearing officer for the

Industrial Commission denied her claim. Serraino appealed the decision again,

but in June 2007 the Industrial Commission refused further review.




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         {¶8} In September 2009, Serraino appealed the matter to the Court of

Common Pleas of Defiance County.2                         Serraino alleged that she contracted

salmonella poisoning when she consumed food served by a caterer that was

invited by the Clinic to serve food in its break room. As a result, Serraino claimed

that she was eligible to receive workers’ compensation benefits since her

poisoning, which she characterized as an injury, was sustained in the course of and

arising out of her employment with the Clinic.

         {¶9} In January 2010, the BWC and the Clinic (collectively “Appellees”)

filed a joint motion for summary judgment, arguing that Serraino’s poisoning did

not occur in the course of or arise out of her employment with the Clinic.

         {¶10} In September 2010, Serraino filed a memorandum in opposition to

Appellees’ joint motion for summary judgment. Serraino conceded that there

were no genuine issues of material fact, but argued that the facts and prevailing

law establish that she is eligible to receive workers’ compensation benefits. In

support, Serraino attached an affidavit of Dr. Harry Hull (“Dr. Hull”). Dr. Hull, an

epidemiologist, attested that “to a reasonable degree of medical and scientific

certainty, Lindamarie Serraino contracted a salmonella disease as a direct or

proximate result of ingesting food prepared by Classic Catering by Kim Brown,



2
  Serraino alleges, and the Appellees admit, that she timely appealed the denial of her claim to the Court of
Common Pleas of Defiance County, but voluntarily dismissed her complaint on September 12, 2008. She
then re-filed her appeal in September of 2009.

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and its agents, served to the employees of The Defiance Clinic in August, 2005.”

Hull Affidavit, p. 2.

        {¶11} In November 2010, Appellees filed a joint reply to Serraino’s

memorandum in opposition to summary judgment.3

        {¶12} On March 5, 2012, the trial court issued a judgment entry granting

summary judgment in favor of Appellees.

        {¶13} It is from that judgment Serraino files this timely appeal, presenting

the following assignments of error for our review.

                                    Assignment of Error No. I

        THE TRIAL COURT ERRED IN GRANTING SUMMARY
        JUDGMENT TO APPELLEES APPELLEES (sic) FAUSTER-
        CAMERON, INC., DBA DEFIANCE CLINIC AND THE
        BUREAU OF WORKERS’ COMPENSATION.

                                   Assignment of Error No. II

        THE TRIAL COURT ERRED IN DENYING APPELLANT
        LINDAMARIE SERRAINO’S MOTION FOR SUMMARY
        JUDGMENT.

                                    Assignment of Error No. I

        {¶14} In her first assignment of error, Serraino contends that the trial court

erred when it granted summary judgment in favor of the Appellees. We disagree.

3
  We note that Appellees asserted an alternative argument in their joint reply to Serraino’s memorandum in
opposition. The Appellees, citing Dr. Hull’s use of the phrase “salmonella disease” in his affidavit, argued
that Serraino’s claim must be treated as an occupational disease, pursuant to R.C. 4123.01(F), and not an
injury, pursuant to R.C. 4123.01(C). If Serraino’s claim was treated as an occupational disease, Appellees
argued that she would not be eligible to receive workers’ compensation benefits. Though Appellees
reassert this argument on appeal, we decline to address it in light of our disposition of Serraino’s first
assignment of error.

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       {¶15} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “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, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).

       {¶16} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must


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identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

       {¶17} “The purpose of the Workers’ Compensation Act is not to make an

employer an absolute insurer of the employee’s safety, but only to protect the

employee against risks and hazards incident to the performance of his work.”

Phelps v. Positive Action Tool Co., 26 Ohio St.3d 142, 144 (1986).            R.C.

4123.01(C) defines a compensable injury under the Workers’ Compensation Act

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.

Thus, to be compensable, an injury must occur “in the course of” and “arising out

of,” the claimant’s employment. R.C. 4123.01(C); Bralley v. Daugherty, 61 Ohio

St.2d 302, 303 (1980). The Supreme Court of Ohio has expressly recognized that

this test is conjunctive in nature, requiring each prong to be satisfied before

compensation is allowed. Fisher v. Mayfield, 49 Ohio St.3d 275, 277 (1990). As

a general rule, the workers’ compensation statute must be liberally construed in

favor of the employee. R.C. 4123.95. Nevertheless, the claimant bears the burden




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to prove both prongs of this two-prong formula. Woodard v. Cassens Transport

Co., 3d Dist. No. 14-11-22, 2012-Ohio-4015, ¶ 16, citing Fisher at 278.

       {¶18} The “arising out of” prong employs a totality of the circumstances

approach to determine “whether a causal connection existed between an

employee’s injury and his employment.” Fisher at 277. In Lord v. Daugherty, 66

Ohio St.2d 441 (1981), the Supreme Court announced three factors to aid in

determining whether a sufficient causal connection exists between an employee’s

injury and their employment, to wit: (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.

       {¶19} While the factors announced in Lord often prove sufficient in

determining whether the injury arose out of the employee’s employment, the list

“is not intended to be exhaustive, but rather illustrative of the factors that need to

be considered.” Fisher at fn. 2; Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d

117, 122 (1998).     This is so because workers’ compensation cases are fact-

intensive. Fisher at 280. As such, the Supreme Court has recognized that “no one

test or analysis can be said to apply to each and every factual possibility. Nor can

only one factor be considered controlling. Rather, a flexible and analytically




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sound approach to these cases is preferable.” Id. Bearing these standards in mind,

we turn our attention to the facts of this case.

       {¶20} Serraino argues that she contracted salmonella poisoning while on

the Clinic’s property. A review of the record, however, reveals that there is a

dispute as to how, and consequently where, Serraino contracted salmonella

poisoning. The DCHD was unable to determine the source of the salmonella

bacteria that caused Serraino’s poisoning.         Despite the DCHD’s inability to

identify the source of the salmonella bacteria, Dr. Hull attested that Serraino

contracted salmonella poisoning as a result of consuming contaminated food

prepared by Classic Catering. Because Serraino is the nonmoving party against

whom summary judgment was granted, we must construe the evidence in a light

most favorable to her. Civ.R. 56(C). In doing so, we must conclude, for purposes

of this appeal, that Serraino contracted salmonella poisoning while on the Clinic’s

property because she consumed the food prepared by Classic Catering in the

Clinic’s break room.

       {¶21} Next, Serraino argues that the facts establish that the Clinic had

control over the scene of the accident. Serraino relies on the Supreme Court’s

decision in Fisher, wherein the court explained that the proper scrutiny of the

second Lord factor “entails the amount of control the employer had over the situs

of the injury.” Fisher, 49 Ohio St.3d at 279. Applying this standard, Serraino


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argues that since she consumed the contaminated food in the Clinic’s break room,

over which the Clinic had control, we must conclude that the Clinic had control

over the scene of the accident. Conversely, Appellees argue that in addition to the

employer’s control over the situs of the injury the second Lord factor should also

be interpreted to include the activities giving rise to the injury.4 Applying this

interpretation, Appellees maintain that the Clinic had no control over Serraino’s

exposure to the salmonella bacteria. We agree with Appellees.

         {¶22} As discussed above, workers’ compensation cases are fact-intensive,

and therefore no one test or analysis can be said to apply to every case. Given this

reality, we must consider the scrutiny articulated in Fisher with respect to the facts

in that case, and determine whether the scrutiny therein precludes consideration of

the employer’s control over all the activities giving rise to the injury.

         {¶23} In Fisher, a teacher employed with a local school board was asked to

coordinate a flower fund by a school building representative. The purpose of the

fund was to provide flowers or other expressions of sympathy for the death of a

co-worker’s close family member, or congratulations upon an employee’s

marriage or the birth of a child. Contributions to the fund were voluntary and

made by employees throughout the school district. On the day of the accident, the


4
  While the Appellees explicitly contend that the “second Lord factor must necessarily be interpreted more
broadly to include the activities occurring at the scene of the accident[,]” Appellees’ Br., p. 12, we interpret
their argument in support of this contention as suggesting that we consider the amount of control the
employer had over the activities giving rise to the injury.

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Case No. 4-12-11


teacher voluntarily stopped by a school, which was not her own but was under her

employer’s control, to collect proceeds for the flower fund. As the teacher was

leaving the school, she missed a step and fell. On appeal, the employer argued

that it had no control over the scene of the accident because it had no control over

the teacher’s voluntary actions of stopping by the school where she was injured.

The Supreme Court disagreed, finding that the “proper scrutiny entails the amount

of control the employer had over the situs of the injury, and not the degree of

control the employer had regarding the actions of its employees.” Fisher at 279.

       {¶24} Upon consideration, we find that the scrutiny articulated in Fischer

does not preclude courts from considering the employer’s control over all the

activities giving rise to the injury. The court expressly held that the second Lord

factor encompasses the employer’s control over the situs of the injury and not the

employer’s control over the actions of the employees.          However, the court

remained silent as to whether courts may consider the employer’s control over

activities, other than those of its employees, which give rise to the purportedly

compensable injury.     Indeed, this silence flows naturally from the facts and

arguments presented in Fisher. There was no need in Fisher to address whether

the activities giving rise to the injury may be considered because the teacher’s fall

was simply the result of missing a step. As a result, we find that Fisher does not

preclude consideration of the employer’s control over activities, other than those


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of its employees, which give rise to the injury at issue. See MTD Products, Inc. v.

Robatin, 61 Ohio St.3d 66, 70 (1991) (finding that employer did not have control

over the scene of the accident because it controlled neither the public roadway

where the accident occurred nor the negligent driver who caused the accident).

          {¶25} Under the circumstances of this matter, we find that the proper

scrutiny entails the amount of control the Clinic had over the situs of Serraino’s

injury and over the activities that gave rise to Serraino’s injury. The situs of

Serraino’s injury, the Clinic’s break room, was purely fortuitous, as she could

have consumed the contaminated food anywhere on or off the employer’s

premises. Given this fact, we fail to see how the situs of Serraino’s injury alone

can provide an accurate picture of the Clinic’s control over the scene of the

accident.

          {¶26} As discussed above, Serraino’s injury occurred as a result of Classic

Catering’s activities. Accordingly, determining the amount of control the Clinic

had over Classic Catering’s activities is relevant in considering the second Lord

factor.     While the Clinic had control over the break room where Serraino

consumed the contaminated food, it had little, if any, control over Classic Catering

and the activities that gave rise to Serraino’s injury. There was no contractual

relationship between Classic Catering and the Clinic. The Clinic had no control or

input over the food Classic Catering served to its employees, the purchase,


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storage, or preparation of the food served to its employees, the transportation of

the food from Classic Caterings’ place of business to the Clinic, service of the

food to the employees, or collection of payment. Compare Williams v. Martin

Marietta Energy Sys., Inc., 99 Ohio App.3d 520 (4th Dist. 1994) (finding that

employee’s injury, which occurred when a Red Cross worker attempted to draw

his blood during a blood drive, did not arise out of his employment despite the

following facts: (1) the employer invited the Red Cross to its place of business; (2)

the injury occurred at the employer’s place of business; (3) the employer’s public

relations department publicized the blood drive, registered employees, and

prepared schedules of donors; (4) the employer’s employees assisted the Red

Cross staff in preparing the room where the blood drive occurred and served

refreshments provided by the employer; and (5) the employer’s medical staff was

on alert during the blood drive in order to treat any medical complications that

developed). Given the foregoing, the record reveals that the Clinic had little

meaningful control over the scene of the accident.

       {¶27} Alternatively, Serraino argues that the Clinic and Classic Catering

were in a principal-agent relationship. As a result, Serraino maintains that the

Clinic exercised sufficient control over Classic Catering to meet the second Lord

factor. A principal-agent relationship exists “when one party exercises the right of

control over the actions of another, and those actions are directed toward the


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attainment of an objective which the former seeks.” Hanson v. Kynast, 24 Ohio

St.3d 171 (1986) paragraph one of the syllabus. Therefore, a principal-agent

relationship can be found in this matter only if Classic Catering was under the

Clinic’s control, and if it took some action directed toward the attainment of the

Clinic’s objective.

       {¶28} Contrary to Serraino’s argument, Classic Catering was not under the

Clinic’s control. The Clinic simply opened its doors to Classic Catering and

allowed them to serve food in its break room. As discussed above, the Clinic had

no control over the food Classic Catering served, the purchase, preparation, and

storage of the food, the transportation of the food, or the service of the food.

Given this lack of control, we find that the Clinic and Classic Catering were not in

a principal-agent relationship. Accordingly, Serraino’s alternative argument is

unavailing.

       {¶29} Next, Serraino argues that the Clinic benefited from her presence at

the scene of the accident. Serraino’s argument is dependent on the fact that the

lunch program was implemented with the purpose of improving the Clinic’s work

environment, which, purportedly benefits the Clinic. Conversely, Appellees argue

that since Serraino was on an unpaid lunch break, was not required to eat the

caterer’s food, and the Clinic received no proceeds from the caterer’s sales, the




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Clinic experienced no benefit from her presence at the scene of the accident. We

agree with Serraino, but for different reasons.

       {¶30} Serraino’s ability to eat a catered lunch in the break room benefited

the Clinic. Serraino contracted salmonella poisoning while she was undergoing

training. Serraino testified that she ate the catered lunches so she could quickly

return to her training. An employee who does not miss or receives more training

generally benefits the employer. Under the unique circumstances of this matter,

however, we find that this perceived benefit offers little insight into the causal

connection between Serraino’s injury and her employment.

       {¶31} Having examined the totality of the circumstances, and construing

the facts in Serraino’s favor, we find, as a matter of law, that there is an

insufficient causal connection between Serraino’s salmonella poisoning and her

employment with the Clinic. The location of Serraino’s poisoning was fortuitous,

as she could have consumed the contaminated food anywhere on or off the

employer’s premises.     Moreover, the fact that Serraino contracted salmonella

poisoning while eating in the Clinic’s break room bears little, if any, significance

in determining whether there was a causal connection between her poisoning and

her employment.     Additionally, the benefit the Clinic received by Serraino’s

presence in the break room bears little significance in determining whether there

was a causal connection between Serraino’s poisoning and her employment.


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Compare Coston v. Carnegie-Illinois Steel Corp., 125 N.E.2d 736 (1952) (finding

that employee’s injury sustained by eating a piece of pie containing glass did not

arise out of employment, where the piece of pie was purchased in a restaurant on

employer’s premises, which was operated by an independent contractor, the

employee was not furnished meals, and was not required to patronize the

restaurant).

       {¶32} Rather than focusing on these insignificant facts, we center our

review on the Clinic’s control, or lack thereof, over the scene of the accident.

Under the circumstances in this matter, this provides the best insight as to whether

there was a causal connection between Serraino’s poisoning and her employment.

Although the Clinic invited Classic Catering to serve food in its break room, over

which it had control, it had absolutely no control over Classic Catering’s activities,

which exclusively gave rise to Serraino’s poisoning. Compare Sebek v. Cleveland

Graphite Bronze Co., 148 Ohio St. 693 (1947) (finding that employee in a

cafeteria, who received meals as a part of her compensation under her contract of

hire and who allegedly contracted ptomaine poisoning from eating contaminated

food prepared and furnished by her employer, sustained an injury arising out of

her employment), overruled in part by Johnson v. Indus. Comm. of Ohio, 164 Ohio

St. 297 (1955). Given the Clinic’s lack of control over that which gave rise to

Serraino’s injury, we find, as a matter of law, that there is an insufficient causal


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connection between her poisoning and her employment.             Consequently, her

poisoning did not arise out of her employment.

       {¶33} Since Serraino’s poisoning did not arise out of her employment, there

is no need to consider whether her poisoning was suffered in the course of her

employment, as both must be established before an employee may participate in

the workers’ compensation fund. Fisher, 49 Ohio St.3d at 277.

       {¶34} Accordingly, we overrule Serraino’s first assignment of error.

                            Assignment of Error No. II

       {¶35} In her second assignment of error, Serraino contends that the trial

court erred in denying her motion for summary judgment.             In light of our

disposition of Serraino’s first assignment of error, her second assignment of error

is moot and we decline to address it. App.R. 12(A)(1)(c).

       {¶36} Having found no error prejudicial to Serraino herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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