[Cite as Molton v. Kroger Co., 2017-Ohio-565.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 JUDY MOLTON                                          :
                                                      :
         Plaintiff-Appellant                          :   Appellate Case No. 27184
                                                      :
 v.                                                   :   Trial Court Case No. 15-CV-2973
                                                      :
 THE KROGER COMPANY, et al.                           :   (Civil Appeal from
                                                      :    Common Pleas Court)
         Defendants-Appellees                         :
                                                      :

                                                 ...........

                                                 OPINION

                          Rendered on the 17th day of February, 2017.

                                                 ...........

JERALD A. SCHNEIBERG, Atty. Reg. No. 0062298, JENNIFER L. LAWTHER, Atty. Reg.
No. 0066761, and DANIEL A. KIRSCHNER, Atty. Reg. No. 0086438, Nager, Romaine &
Schneiberg Co., L.P.A., 27730 Euclid Avenue, Cleveland, Ohio 44132
      Attorneys for Plaintiff-Appellant

THERESA M. MUHIC, Atty. Reg. No. 0040649, Dinsmore & Shohl LLP, Fifth Third
Center, Suite 1300, 1 South Main Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellee, The Kroger Company

NATHAN P. FRANZEN, Atty. Reg. No. 0092532, 150 East Gay Street, 22nd Floor,
Columbus, Ohio 43215
     Attorney for Defendant-Appellee, Bureau of Workers’ Compensation

                                             .............
                                                                                        -2-


    HALL, P.J.

         {¶ 1} Judy Molton appeals from the trial court’s grant of summary judgment to

Kroger on her claim for workers’ compensation. Finding no error, we affirm.

                                      I. Background

         {¶ 2} Sylvia Byrd was hired by Kroger in September 2013 to work at the store

located on the corner of West Alex Bell Road and State Route 741, in Dayton, Ohio.1

Byrd, who did not own a vehicle, took a public bus to and from the store. A public bus

stop was located south of the store, on the opposite side of West Alex Bell Road.

         {¶ 3} On October 5, 2013, Byrd finished her shift and clocked out. She started

across Alex Bell Road toward the bus stop when she was struck by a vehicle and fatally

injured. The police crash report states that Byrd was crossing the street outside a

designated crossing area.

         {¶ 4} Molton is the legal guardian for Byrd’s son. In his behalf, she filed an

application for workers’ compensation with the Bureau of Workers’ Compensation (BWC).

Kroger contested the claim. A BWC District Hearing Officer denied the claim. Molton

appealed to the Industrial Commission of Ohio, and the Commission refused the appeal.

Molton then filed an appeal and complaint in the Montgomery County Common Pleas

Court. Kroger moved for summary judgment. On June 14, 2016, the trial court granted

Kroger’s summary-judgment motion.

         {¶ 5} Molton appealed.

                                        II. Analysis

         {¶ 6} The sole assignment of error alleges that the trial court erred by granting


1   The address of the store is 2917 West Alex Bell Road.
                                                                                          -3-


Kroger’s motion for summary judgment. We review a trial court’s summary-judgment

decision de novo, “that is, we will consider the evidence as if for the first time—using the

standard set out in Civ.R. 56.” (Citation omitted.) Argabrite v. Neer, Ohio Sup. Slip Opinion

No. 2016-Ohio-8374, ¶ 14. “A court may grant summary judgment only when no genuine

issue of material fact remains to be litigated, the moving party is entitled to judgment as

a matter of law, and, viewing the evidence in the light most favorable to the nonmoving

party, reasonable minds can reach a conclusion only in favor of the moving party.” Id.

When deciding a summary-judgment motion, a court must first “read the evidence most

favorably for the nonmoving party to see if there is a ‘genuine issue of material fact’ to be

resolved.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 12. If

there is none, “the court then decide[s] whether the movant deserves judgment as a

matter of law.” Id.

       {¶ 7} Here, there is no genuine issue of material fact, as the parties do not dispute

what happened. So the only issue is whether Kroger is entitled to judgment as a matter

of law. To determine that issue, we must determine whether Byrd’s son is entitled to

recover workers’ compensation benefits as a result of her death.

                 A. Participating in Ohio’s Workers’ Compensation Fund

       {¶ 8} An employee is generally entitled to workers’ compensation for injuries

“received in the course of, and arising out of, the injured employee’s employment.” R.C.

4123.01(C). To establish the right to compensation, “a claimant has always had to show

* * * that the injury arose out of and in the course of employment.” (Citations omitted.)

Bennett v. Admir., Ohio Bur. of Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639,

982 N.E.2d 666, ¶ 18. “The test of the right to participate is * * * whether a ‘causal
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connection’ existed between the employee’s injury and his employment either through the

activities, the conditions, or the environment of the employment.” Taylor v. Meijer, Inc.,

182 Ohio App.3d 23, 2009-Ohio-1966, 911 N.E.2d 344, ¶ 12 (2d Dist.), citing Fisher v.

Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (1990).

                             B. The coming-and-going rule

      {¶ 9} When an employee is injured in a traffic accident, the coming-and-going rule

is used to determine whether the injury “occurs ‘in the course of’ and ‘arises out of’ the

employment relationship so as to constitute a compensable injury under R.C.

4123.01(C).” Ruckman v. Cubby Drilling, 81 Ohio St.3d 117, 119, 689 N.E.2d 917 (1998).

The rule generally precludes an employee “with a fixed place of employment, who is

injured while traveling to or from his place of employment,” from participating in the

Workers’ Compensation Fund, “because the requisite causal connection between the

injury and the employment does not exist.” MTD Prods., Inc. v. Robatin, 61 Ohio St.3d

66, 68, 572 N.E.2d 661 (1991). See generally Ruckman at 119 (explaining that workers’

compensation laws “contemplate only those hazards to be encountered by the employee

in the discharge of the duties of his employment, and do not embrace risks and hazards,

such as those of travel to and from his place of actual employment over streets and

highways, which are similarly encountered by the public generally”).

                      C. Exceptions to the coming-and-going rule

      {¶ 10} The coming-and-going rule is not necessarily a complete bar to

compensation, though. The Ohio Supreme Court has recognized “ ‘rare circumstances’

where, despite being classified as a fixed-situs employee, an employee can nevertheless

demonstrate that she received an injury in the course of and arising out of her employment
                                                                                        -5-

while traveling to or from work.” Janicki v. Kforce.com, 167 Ohio App.3d 572, 2006-Ohio-

3370, 855 N.E.2d 1282, ¶ 18 (2d Dist.), quoting Ruckman at 120. Three such

circumstances, or exceptions, have been recognized: “(1) the zone of employment

exception; (2) the special hazard exception; and (3) the totality of the circumstances

exception.” Id. at ¶ 19, citing MTD Prods. and Ruckman.

      {¶ 11} The parties here agree that the coming-and-going rule applies to Byrd, but

they disagree whether an exception also applies. Molton argues that both the first and the

third exception apply, while Kroger argues that they don’t.

                         1. The zone-of-employment exception

      {¶ 12} An injury is compensable if it occurs within the “zone of employment.” MTD

Prods., 61 Ohio St.3d at 69, 572 N.E.2d 661. “Zone of employment” has been defined as

“the place of employment and the area thereabout, including the means of ingress thereto

and egress therefrom, under control of the employer.” Merz v. Indus. Comm., 134 Ohio

St. 36, 39, 15 N.E.2d 632 (1938). See also Taylor, 182 Ohio App.3d 23, 2009-Ohio-1966,

911 N.E.2d 344, at ¶ 19 (quoting this definition). The question here, then, is whether Byrd

was injured in the zone of her employment with Kroger.

      {¶ 13} Molton argues that Baughman v. Eaton Corp., 62 Ohio St.2d 62, 402 N.E.2d

1201 (1980), governs this issue. In that case, the Ohio Supreme Court held that

compensation was available to an employee who was hit by an automobile while crossing

a public street between the entrance to the employer’s plant and the only employer

parking lot then available to him for free. We have pointed out that the Court in Baughman

implicitly found that when the employee entered the parking lot, he reached his place of

employment within the meaning of the zone-of-employment test. Janicki, 167 Ohio
                                                                                        -6-

App.3d 572, 2006-Ohio-3370, 855 N.E.2d 1282, at ¶ 27. After Baughman, in cases of

injuries that occurred while traveling between an employee’s work location and parking

location, “courts of appeals have focused on the degree of the employer’s control over

the employee’s parking location or, contrastingly, whether the employee chose to be in

the area where he or she was injured.” Id. at ¶ 31. Accordingly, under the zone-of-

employment test, an employee is within the zone of her employment if the parking location

“is under the employer’s control and the street is the sole access route to the place of

employment.” Id. at ¶ 28, quoting Meszaros v. Legal News Publishing Co., 138 Ohio

App.3d 645, 647, 742 N.E.2d 158 (8th Dist.2000).

      {¶ 14} But “[i]f the employee is injured on the public street while traveling from a

lot not owned or operated by the employer, which the employees were not required to

park in, the employee was not injured in the zone of employment.” Meszaros at 647. In

Johnston v. Case W. Res. Univ., 145 Ohio App.3d 77, 761 N.E.2d 1113 (8th Dist. 2001),

an employee was injured when a truck jumped the curb and hit her as she walked along

the sidewalk from her work location to her car that was in a parking garage made available

to her by her employer. The appellate court held that the employee was not in the zone

of her employment, because her employer did not require her to park in the parking

garage—she could choose how to travel to and from work—and the employer did not

control the location in which she was injured, the sidewalk. We held similarly in Powers

v. Frank Z Chevrolet, 100 Ohio App.3d 718, 654 N.E.2d 1053 (2d Dist.1995). In Powers,

an employee was struck while crossing the street on his way to his job at a car dealership.

He had parked on a nearby street because employees were not permitted to park on the

sales lots. We held that he was not in the zone of his employment, because when he was
                                                                                          -7-

injured (unlike the employee in Baughman) he had not reached his employer’s premises.

       {¶ 15} Here, Byrd’s injuries occurred when she was struck by a vehicle on a public

street that she was crossing to reach a public bus stop. She was not traveling to an area

controlled by Kroger, as Kroger had no control over the bus stop, or the public street, for

that matter. And Kroger did not require Byrd to travel to or from work by bus. So this case

is distinguishable from Baughman and similar cases involving a non-contiguous parking

lot controlled by the employer. When the employees in those cases were injured, they

were at their places of employment. That is not the case here. The zone-of-employment

exception does not apply.

                      2. The totality-of-the-circumstances exception

       {¶ 16} Compensation is also available if the totality of the circumstances

surrounding the injury show a causal connection between the employee’s injury and her

employment. MTD Prods., 61 Ohio St.3d at 70, 572 N.E.2d 661. The totality-of-the-

circumstances test requires “primary analysis of the following facts and circumstances:

‘(1) 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.’ ” Ruckman,

81 Ohio St.3d at 122, 689 N.E.2d 917, quoting Lord v. Daugherty, 66 Ohio St.2d 441, 423

N.E.2d 96 (1981), at the syllabus.

       {¶ 17} Even if an employee is injured near the place of her employment, no causal

connection exists if the employer did not control the scene of the injury and did not receive

a benefit from the employee’s presence at the scene. Powers, 100 Ohio App.3d at 723-

724, 654 N.E.2d 1053. In Powers, we held that the employee, injured in a public street on
                                                                                           -8-


his way to work, failed to satisfy the totality-of-the-circumstances test. The public street

was near the place of employment, but it was not controlled by the employer. And the

employer did not receive a benefit from the employee’s being in the street when the injury

occurred. The employee, we said, “had not yet reported to work and was not yet

performing any service for [the employer].” Id. at 724. See also MTD Prods. at 70 (saying

that “an employee arriving to begin his day’s work is not yet performing any service for

the benefit of his employer”). The Ninth District held similarly in Castaneda v. AE Outfitters

Retail Co., 9th Dist. Lorain No. 04CA008450, 2004-Ohio-5554, a case in which an

employee of a store in a mall was hit by a car in the mall’s parking lot while walking to her

car that was parked in the lot. In addition to finding that the employee was injured near

her place of employment and that the employer had no control over the parking lot, the

appellate court found that the employer “did not derive any particular benefit” from the

employee’s presence in the parking lot. Castaneda at ¶ 14. The employee, the court

pointed out, had left work for the day when the accident occurred.

       {¶ 18} Here, Byrd was injured near her place of employment in a location over

which Kroger had no control. And Kroger received no apparent benefit from Byrd’s

presence in the street. When she was injured, her work shift had ended, she had clocked

out, and she was on her way home. Byrd was not engaged in any employment-related

activities. Because the circumstances of Byrd’s injury do not show a causal connection

between her injury and her employment with Kroger, the totality-of-the-circumstances

exception does not apply.

       {¶ 19} The coming-and-going rule precludes recovery of workers’ compensation

benefits as a result of Byrd’s injury and death. Therefore Kroger is entitled to judgment
                                                                                      -9-


as a matter of law.

      {¶ 20} The sole assignment of error is overruled.

                                     III. Conclusion

      {¶ 21} The trial court’s judgment is affirmed.

                                    .............



WELBAUM, J., and BROGAN, V.J., concur.

(Hon. James A. Brogan, Judge, retired from the Second District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio).


Copies mailed to:

Jerald A. Schneiberg
Jennifer L. Lawther
Daniel A. Kirschner
Theresa M. Muhic
Nathan P. Franzen
Hon. Dennis J. Langer
