[Cite as Parrish v. Cavaliers Holding, L.L.C., 2019-Ohio-89.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 106911



                                            LOUIS PARRISH

                                                            PLAINTIFF-APPELLANT

                                                      vs.

                                   CAVALIERS HOLDING, L.L.C.

                                                            DEFENDANT-APPELLEE




                                               JUDGMENT:
                                                AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-16-867309


        BEFORE: Celebrezze, J., S. Gallagher, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: January 10, 2019
ATTORNEYS FOR APPELLANT

David L. Meyerson
Shaun H. Kedir
Seaman & Associates
1400 Rockefeller Building
614 W. Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Kimberlee J. Kmetz
Kmetz Llaw, L.L.C.
75 Milford Drive, Suite 203
Hudson, Ohio 44236

Ohio Attorney General
BY: Mark E. Mastrangelo
Assistant Attorney General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., J.:

       {¶1} Plaintiff-appellant, Louis Parrish (“Parrish”), appeals the trial court’s order granting

summary judgment in favor of defendant-appellee, Cavaliers Holding, L.L.C. (“appellee”), which

denied worker’s compensation benefits to Parrish.      Parrish argues that he sustained an injury

while in the course and scope of his employment. After a thorough review of the record and

law, this court affirms.

                              I.    Factual and Procedural History

       {¶2} Parrish is employed by appellee as a “guest service representative.” Parrish works

exclusively at the Quicken Loans Arena (“the arena”) in downtown Cleveland, Ohio.               On
January 29, 2013, Parrish was walking to the arena on his way to work and was injured after he

slipped and fell on the floor in an enclosed, indoor walkway (“walkway”). The walkway

connects the arena to the Tower City building. Appellee provided Parrish with a parking pass

that allowed him to park for free in a parking lot adjacent to the Tower City building.

       {¶3} Parrish applied for workers’ compensation benefits; however, he was denied

benefits by the district hearing officer. Parrish appealed that decision to a staff hearing officer

who affirmed the district hearing officer’s decision. Parrish thereafter appealed the staff hearing

officer’s decision, and on appeal, that decision was affirmed. Parrish then filed an appeal to the

Cuyahoga County Common Pleas Court on August 8, 2016.

       {¶4} In the trial court, appellee filed a motion for summary judgment arguing that Parrish

did not sustain his injuries while in the course of his employment. Parrish also filed a partial

motion for summary judgment on the same particular issue. However, Parrish did not move for

summary judgment on the issue of what actual injuries he sustained as a result of the fall. The

trial court then issued a decision on February 16, 2018, granting appellee’s motion for summary

judgment and denying Parrish’s motion for partial summary judgment. Parrish then filed this

appeal assigning the following errors for our review:

       I. The trial court erred in granting summary judgment in favor of [appellee] on
       the question of whether [Parrish’s] injury occurred in the course of and arising out
       of his employment with [appellee].

       II. The trial court erred in denying [Parrish’s] partial motion for summary
       judgment on the issue of whether [Parrish’s] injury occurred in the course of and
       arising out of his employment.

                                      II. Law and Analysis

                                    A. Standard of Review
       {¶5} Parrish argues that the trial court erred in granting appellee’s motion for summary

judgment and denying his partial motion for summary judgment because he is entitled to

workers’ compensation benefits under the “zone of employment” and “totality of the

circumstances” exceptions to the “coming-and-going rule.” Parrish’s two assignments of error

are interrelated and will be addressed together for ease of discussion.

       {¶6} We review an appeal from summary judgment under a de novo standard of review.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Zemcik v. LaPine

Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998).

       {¶7} In order to obtain summary judgment, the moving party must show that “(1) there is

no genuine issue of material fact; (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 when

viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the

nonmoving party.” Grafton at 105, citing State ex rel. Cassels v. Dayton City School Dist. Bd.

of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

       {¶8} “The moving party has the initial responsibility of establishing that it is entitled to

summary judgment.”         UBS Fin. Servs. v. Lacava, 8th Dist. Cuyahoga No. 106256,

2018-Ohio-3165, ¶ 17, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996). “[I]f the moving party meets this burden, summary judgment is appropriate only if the

nonmoving party fails to establish the existence of a genuine issue of material fact.” Deutsche

Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 16, citing

Dresher at 293.

       {¶9} “Once a moving party demonstrates no material issue of fact exists for trial and the

party is entitled to judgment, the nonmoving party has a duty to come forth with argument and
evidence demonstrating a material issue of fact does exist that would preclude judgment as a

matter of law.” Lacava at ¶ 18, citing Dresher at id. Thereafter, “summary judgment is

appropriate if the nonmoving party fails to meet this burden.” Id.

                                 B. Workers’ Compensation

       {¶10} R.C. 4123.01(C), Ohio’s Workers’ Compensation statute, encompasses “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.” Generally, in

order to be entitled to receive workers’ compensation benefits, Ohio law requires that the worker

demonstrate that both (1) the injury occurred“in the course of employment,” and (2) the injury

“arises out of that employment.” Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 121, 689

N.E.2d 917 (1998), citing Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (1990).

The Ohio Supreme Court in Fisher recognized the undivided nature of this coverage formula,

finding that the failure to satisfy both prongs precludes recovery under the Workers’

Compensation Act. Fisher at 277. The court additionally noted that workers’ compensation

statutes are to be liberally construed in favor of awarding benefits to the employee, but clarified

that all elements of the formula must be met prior to the awarding of benefits. Id. at 277-278.

       {¶11} “As a general rule, an employee with a fixed place of employment, who is injured

while traveling to or from his place of employment, is not entitled to participate 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), citing Bralley v. Daugherty, 61 Ohio St.2d 302, 401 N.E.2d 448 (1980). The

above rule has come to be known as the “coming-and-going rule.” “The coming-and-going rule

is used to determine whether an injury suffered by an employee in a traffic accident 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 at 119. Thus, in light of this rule, compensation is

only allowed under certain well-defined exceptions.

         The “coming-and-going rule” does not operate as a complete bar to an employee
         who is injured commuting to and from work if: 1) the injury occurs within the
         “zone of employment”; 2) the employment creates a “special hazard”; 3) there is a
         causal connection between the employee’s injury and employment based on the
         “totality of circumstances” surrounding the accident; or 4) the employee is
         performing a “special mission” for the employer. MTD, supra. See also, Smith
         v. Carnegie Auto Parts, Inc., [8th Dist.] Cuyahoga No. 88343, 2007-Ohio-992.

Bowden v. Cleveland Hts.-Univ. Hts. Schools, 8th Dist. Cuyahoga No. 89414,

2007-Ohio-6804, ¶ 14.

         {¶12} In the instant matter, Parrish argues that he is entitled to workers’ compensation

benefits under the “zone of employment” and “totality of the circumstances” exceptions to the

“coming-and-going rule,” most notably, because appellee controlled where Parrish parked.1

                                          1. Zone of Employment

         {¶13} Parrish contends that he was injured in the “zone of employment” because appellee

controlled where he had to park and where he had to enter work. “The ‘zone of employment’

has been extended to include areas off the employer’s premises if the worker has been injured in

a place where the employer has control of the conditions and the employee has no option but to

pursue a given course.” Shafer v. Tri-Arch, 8th Dist. Cuyahoga No. 85188, 2005-Ohio-2845, ¶

9, citing Morris v. Cleveland, 44 Ohio Law Abs. 215, 64 N.E.2d 134 (8th Dist.1945). “If the

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

employment, the employee is within this ‘zone of employment.’” Meszaros v. Legal News


1
  Parrish concedes that the “special hazard” exception is inapplicable to the present facts and circumstances,
therefore that exception is omitted from our analysis. Although the parties do not address the “special mission”
exception, we note that this exception is not relevant to the instant matter and we omit it from our analysis as well.
Publishing Co., 138 Ohio App.3d 645, 647, 742 N.E.2d 158 (8th Dist.2000), citing Bralley.

Even if the street is not under the control of the employer, the employee is within the “zone of

employment” if the employee could not reach the workplace entrance from the employee parking

lot without crossing the public street. Baughman v. Eaton Corp., 62 Ohio St.2d 62, 402 N.E.2d

1201 (1980). If 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 within the zone of employment. Weiss v. Univ. Hosps. of Cleveland, 137 Ohio

App.3d 425, 738 N.E.2d 884 (8th Dist.2000).

       {¶14} In support of his argument that he was within the zone of employment when he

sustained his injuries, Parrish argues that he had no choice but to park at the parking lot and use

the walkway to reach the arena. To this end, Parrish directs this court’s attention to Meszaros.

In Meszaros, an employee was injured when he slipped and fell on ice on a driveway while

walking from a parking lot to his place of employment. The employer assigned the employee to

the parking lot, paid for the employee to park there, and leased parking spaces from the owner of

the parking lot. Id. at 648. This court therefore found that the employer induced the employee

to park in this lot. Further, the employer provided two access routes from the parking lot to its

building. However, because one of those routes was inaccessible, the employer intended the

employees to use the particular driveway where the employee was injured. Id. Based on these

facts, this court concluded that when the employee “arrived in the parking lot, he arrived on

premises leased by the [employer]” and therefore, the employee was within the zone of

employment. Id. at 649.

       {¶15} In the instant matter, Parrish states that he originally parked in two other parking

lots while employed by appellee. After initially parking in a parking garage, Parrish states that
appellee then directed Parrish to park in a second location, a parking lot by the Cuyahoga River.

However, individuals were attacked in this parking lot and appellee thereafter instructed Parrish

to park in a third location, the parking lot adjacent to the Tower City building. Parrish also

states that appellee prohibited him from using his parking pass for non-work-related events.

          {¶16} Nevertheless, we note that appellee offered Parrish a free parking pass. If Parrish

chose to utilize the free parking, Parrish had to park in the parking lot adjacent to the Tower City

building. Therefore, to the extent that Parrish argues that he had no choice where to park, this is

not true. There were other parking options available, notably many street level parking lots and

other parking garages within the immediate surrounding area of the arena. By providing the free

parking pass, however, appellee did induce Parrish to utilize the parking lot adjacent to Tower

City. This fact is not dispositive to our “zone of employment” analysis because appellee did not

assign Parrish to the parking lot adjacent to Tower City. See Meszaros,138 Ohio App.3d 645,

742 N.E.2d 158. Nor did appellee require Parrish to park in this parking lot. See Shafer, 8th

Dist. Cuyahoga No. 85188, 2005-Ohio-2845. Therefore, we do not find any merit to Parrish’s

arguments that appellee controlled where he parked.

          {¶17} Moreover, because we find that appellee did not require that Parrish park in the

parking lot, the instant matter is distinguishable from this court’s previous cases, most notably,

Shafer.     In Shafer, this court found that an employee’s injury did occur in the “zone of

employment” because the employer required the employee to park in a designated parking lot.

After the employee completed her shift, she was crossing the street from her employer’s business

to her vehicle in the designated parking lot. While crossing the street, she was struck by a car

and she sustained injuries.      This court found that the employee was within the “zone of

employment” because the employer required the employee to park in that particular parking lot.
This court also noted that the employer leased parking spaces from the parking lot’s owner

specifically for its employees to use.

       {¶18} Thus, with regards to the “zone of employment” exception, the instant matter is

more analogous to Weiss, 137 Ohio App.3d 425, 738 N.E.2d 884. In Weiss, an employee

tripped on a curb while walking from a parking lot to her place of work. This curb was on a

portion of a street that was under construction. Although the employer owned the parking lot,

the parking lot was maintained and operated by another entity. Moreover, it was this other entity

that assigned the employee to the particular parking lot, not the employer. Therefore, this court

found that the employer did not control where the employee parked because the employee was

not required by the employer to park in the parking lot. As such, the employee was not within

the “zone of employment” when she sustained her injuries.

       {¶19} Parrish also argues that he was within the “zone of employment” because the

walkway was within the normal and customary means of access from the parking lot to the arena.

 More specifically, Parrish argues that because appellee controlled where he parked, and due to

the fact that the walkway was the normal and customary means of access, appellee exerted

control over where Parrish was located at the time of his injury.

       {¶20} We disagree with Parrish’s arguments in this regard because Parrish had other

parking options and appellee did not require Parrish to park in a particular location. If an

employee chooses to park in a particular location, and is not required to do so by their employer,

the employee is not within the zone of employment. Given the fact that Parrish was not required

to park in the parking lot adjacent to Tower City, we cannot find that Parrish did not have any

other options than to pursue a given course; the walkway. Moreover, as the trial court noted,
appellee did not require its employees to use the walkway route. Therefore, appellee did not exert

control over where Parrish was located at the time of his injury.

       {¶21} In addition, we find that appellee did not have control over the area where Parrish

was injured. The parking lot adjacent to Tower City is open to the general public. There is no

evidence that appellee leased or even reserved parking spaces for its employees. See Shafer, 8th

Dist. Cuyahoga No. 85188, 2005-Ohio-2845. The walkway where Parrish was injured was also

open to the general public. Appellee did not own or have control over the walkway as conceded

by Parrish. In fact, the walkway is owned by the Greater Cleveland Regional Transit Authority

(“RTA”) as also conceded by Parrish.        RTA is responsible for maintaining this walkway;

however, RTA contracts with a company, Anchor Cleaning, for the purposes of cleaning and

maintenance of the walkway. Considering all of these facts, appellee did not have control over

the walkway.

       {¶22} In our review of the record, we find that appellee did not control where Parrish

parked, appellee did not have control over the area where Parrish was injured, and appellee did

not exert control over where Parrish was located at the time of his injury. Therefore, we find

that Parrish was not in the zone of employment when he was injured and, accordingly, his claim

is not compensable under this exception to the coming-and-going rule.

                               2. Totality of the Circumstances

       {¶23} Parrish also argues that his injuries fall under the “totality of the circumstances”

exception to the coming-and-going rule. Under this exception, Parrish contends that there is a

causal connection between his injury and his employment based on the totality of the

circumstances surrounding the accident.
       [T]he Supreme Court of Ohio held that “whether there is a sufficient ‘causal
       connection’ between an employee’s injury and his employment to justify the right
       to participate in the Workers’ Compensation Fund depends on the totality of the
       facts and circumstances surrounding the accident, including, (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.”

Smith, 8th Dist. Cuyahoga No. 88343, 2007-Ohio-992, at ¶ 21, quoting Lord v. Daugherty, 66

Ohio St.2d 441, 423 N.E.2d 96 (1981), syllabus. Further, the Ohio Supreme Court has directed

that, “when applying the analysis set forth above, a reviewing court must examine the separate

and distinct facts of each case.” Fisher, 49 Ohio St.3d at 280, 551 N.E.2d 1271.

       {¶24} In our review of the record, we find, that the proximity of the scene of the accident

to the place of employment was significant. The walkway immediately connects to the arena,

Parrish’s place of employment. Therefore, the first factor weighs in favor of Parrish.

       {¶25} However, as we noted above, the walkway is not owned, maintained, or controlled

by appellee. Two distinct entities, RTA and Anchor Cleaning, own, maintain, and control the

walkway. Therefore, the second factor does not weigh in Parrish’s favor.

       {¶26} Lastly, we note that although it could be argued that appellee benefitted from

Parrish parking in the parking lot adjacent to Tower City, appellee did not benefit from Parrish’s

actual presence at the scene of the accident as required under the totality of circumstances

analysis. We note that the trial court found that Parrish and appellee had a “non-mandatory

parking arrangement” and we agree with this characterization. The trial court found that the

“arrangement” was “better classified as a perk to [Parrish as an employee] rather than a benefit to

[appellee because Parrish] had ‘not yet perform[ed] any service for the benefit of his employer’

prior to arriving at work.” Trial Court’s 2/16/18 journal entry.
       {¶27} Notwithstanding the fact that we find that the proximity of the scene of the accident

to the place of Parrish’s employment weighs in Parrish’s favor, because we find that appellee

received no benefit from Parrish’s presence at the scene of the accident and appellee did not

control the area where Parrish was injured, we find that there is no causal connection between his

injury and his employment based on the totality of the circumstances surrounding the accident.

       {¶28} Accordingly, the trial court did not err in granting summary judgment in favor of

appellee and did not err in denying Parrish’s partial motion for summary judgment. Parrish’s

assignments of error are overruled.

                                        III. Conclusion

       {¶29} Appellee did not require Parrish to park at the parking lot adjacent to Tower City

and appellee did not have control over the walkway where Parrish was injured. Therefore,

Parrish was not within the zone of employment when he was injured. Notwithstanding the

proximity of the scene of the accident to the place of Parrish’s employment, appellee received no

benefit from Parrish’s presence at the scene of the accident and appellee did not control the area

where Parrish was injured, therefore there is no causal connection between his injury and his

employment based on the totality of the circumstances surrounding the accident. As a result, the

trial court correctly found that Parrish was not entitled to workers’ compensation benefits, and

properly granted appellee’s motion for summary judgment and denied Parrish’s partial motion

for summary judgment.

       {¶30} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., CONCURS (WITH SEPARATE CONCURRING OPINION);
ANITA LASTER MAYS, J., CONCURS WITH MAJORITY AND WITH SEPARATE
CONCURRING OPINION

SEAN C. GALLAGHER, P.J., CONCURRING:

       {¶31} I concur with the majority decision and agree that neither the zone of employment

nor the totality of circumstances exceptions to the coming-and-going rule apply in this matter.

       {¶32} I recognize that although Parrish may not have been required to park in the parking

lot adjacent to the Tower City building, his employer provided him with a parking pass and

directed him to park in this location. However, unlike the cases Parrish relies on, in this matter

there was evidence establishing that the parking lot was not owned, maintained, or controlled by

appellee, and that Parrish was not restricted to this parking location as a condition of his

employment, even though he would have to pay for parking elsewhere.

       {¶33} The “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 the control of

the employer.” Marlow v. Goodyear Tire & Rubber Co., 10 Ohio St.2d 18, 22, 225 N.E.2d 241

(1967), quoting Merz v. Indus. Comm., 134 Ohio St. 36, 39, 15 N.E.2d 632 (1938). Where an

employee is injured while traveling between the employee’s work location and parking location,

the question of control enters into the consideration.         Molton v. Kroger Co., 2d Dist.
Montgomery No. 27184, 2017-Ohio-565, ¶ 13 Under the zone-of-employment test, an employee

is considered within the zone of employment if the parking location is under the employer’s

control and the employee is injured along a required route to the place of employment. Id. at

¶ 13, citing Meszaros v. Legal News Publishing Co., 138 Ohio App.3d 645, 647, 742 N.E.2d 158

(8th Dist.2000).

       {¶34} In this case, the location where Parrish parked was not under appellee’s control.

The parking lot was open to the public and, unlike Meszaros, none of the spaces were leased by

Parrish’s employer. Further, even though Parrish received a parking pass and was directed to

the lot adjacent to Tower City, unlike Shafer v. Tri-Arch 14, 8th Dist. Cuyahoga No. 85188,

2005-Ohio-2845, there was no requirement that Parrish had to park in the lot as a condition of his

employment and he could have opted to park in a different location. Accordingly, I agree with

the determination that appellee was not within the zone of employment. I also agree with the

determination that the “totality of the circumstances” exception to the coming-and-going rule

does not apply in this matter.
