[Cite as Alexander v. Boston, 2016-Ohio-7583.]


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

JERRY D. ALEXANDER                                    C.A. No.     28133

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CODY BOSTON                                           COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellee                                      CASE No.   CV 2013 06 2899

                                DECISION AND JOURNAL ENTRY

Dated: November 2, 2016



        WHITMORE, Judge.

        {¶1}    Appellant, Jerry Alexander, has appealed a judgment of the Summit County Court

of Common Pleas that granted summary judgment to Appellee, Cody Boston. We affirm.

                                                 I.

        {¶2}    We explained the facts of this case in Alexander v. Boston, 9th Dist. Summit No.

27376, 2015-Ohio-1799.

        In 2011, Mr. Alexander, an employee of J.B. Manufacturing (“J.B.”), left J.B.’s
        building to eat lunch in his car, which was parked in the parking lot adjacent to
        the building. At that time, Cody Boston, also a J.B. employee, was driving his car
        in the parking lot, and he struck Mr. Alexander and ran over his foot and lower
        leg. Following the accident, Mr. Alexander filed for, and was awarded, workers’
        compensation benefits for his injuries.

Id. at ¶ 2. Although receiving benefits, Mr. Alexander also filed a negligence action against Mr.

Boston. Mr. Boston moved for summary judgment, arguing that he is immune from liability

under the fellow servant immunity doctrine. The trial court awarded summary judgment to Mr.

Boston, but this Court reversed, concluding that it had failed to examine whether Mr. Boston’s
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conduct at the time of the accident “occurred in the course of and arose out of his employment.”

Id. at ¶ 15. We remanded the matter to the trial court to render a decision on that issue in the first

instance.

       {¶3}    On remand, the parties submitted additional briefing. Upon consideration, the

trial court again awarded summary judgment to Mr. Boston, concluding that, because Mr. Boston

was in the zone of employment at the time of the accident, he was entitled to immunity under

R.C. 4123.741. Mr. Alexander has appealed, assigning as error that the trial court incorrectly

granted immunity to Mr. Boston.

                                                 II.

                                   ASSIGNMENT OF ERROR

       BY GRANTING IMMUNITY TO MR. BOSTON PURSUANT TO ORC
       4123.741 THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW
       FINDING THE PARKING LOT WHERE THE ACCIDENT OCCURRED, NOT
       OWNED OR CONTROLLED BY THE EMPLOYER WAS WITHIN THE
       ZONE OF EMPLOYMENT.

       {¶4}    Mr. Alexander has argued that the trial court erred when it granted summary

judgment to Mr. Boston, concluding that he is immune from liability under the fellow servant

immunity doctrine. We review a trial court’s grant of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is proper under Civ.R.

56(C) 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). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to the parts of the
                                                  3


record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d

280, 292 (1996). “To accomplish this, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C).” Id. If the moving party meets this burden, then the non-

moving party bears the burden to offer specific facts demonstrating a genuine issue for trial. Id.

at 293.

          {¶5}   The fellow servant immunity doctrine, which has been codified at R.C. 4123.741

provides:

          No employee of any employer, as defined in 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 of such employer in the course of and arising out of the latter
          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.

Pursuant to that doctrine, “a party who is injured as a result of a co-employee’s negligent acts,

who applies for benefits under Ohio’s workers’ compensation statutes, and whose injury is found

to be compensable thereunder is precluded from pursuing any additional common-law or

statutory remedy against such co-employee.” Kaiser v. Strall, 5 Ohio St.3d 91, 94 (1983). To be

entitled to immunity, however, the co-employee must have committed the actionable conduct “in

the course of, and arising out of” the co-employee’s employment. Donnelly v. Herron, 88 Ohio

St.3d 425, 429 (2000).

          {¶6}   Mr. Alexander has argued that Mr. Boston’s collision with him could not have

been conduct “in the course of and arising out of” Mr. Boston’s employment because it was not
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done in the service of J.B. and occurred in a parking lot that was not owned or controlled by J.B1.

The Ohio Supreme Court has explained that the “in the course of” prong of the test “relates to the

time, place, and circumstances of the injury.” Friebel v. Visiting Nurse Assn. of Mid-Ohio, 142

Ohio St.3d 425, 2014-Ohio-4531, ¶ 13. “This prong limits workers’ compensation benefits to

employees who sustain injuries while engaged in a required employment duty or activity

consistent with their contract for hire and logically related to the employer's business.” Id.

       The “arising out of” prong refers to the causal connection between the
       employment and the injury, and whether there is sufficient causal connection to
       satisfy this prong “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.”

Id. at ¶ 14, quoting Fisher v. Mayfield, 49 Ohio St.3d 275, 277 (1990). “This list of factors is not

exhaustive, however, and an employee may fail to establish one or more of these three factors

and still be able to establish the requisite causal connection.” Id.; see Ruckman v. Cubby

Drilling, Inc., 81 Ohio St.3d 117, 122-124 (1998) (describing alternative methods of proving

causality).

       {¶7}    Even if J.B. did not own or control the parking lot where the collision occurred,

that fact is not fatal to Mr. Boston’s immunity defense. In Industrial Commission v. Henry, 124

Ohio St. 616 (1932), Harry Henry, a milk wagon driver, arrived at the office of his company and

submitted a card that indicated how much milk he would need on his route that day. While he

waited for his order to be filled, he fed his horse then crossed a set of railroad tracks to have




       1
         The trial court found that J.B. controlled the parking lot where the accident occurred.
Although there appears to be a question of fact regarding that issue, it is of no consequence given
the undisputed facts herein.
                                                  5


breakfast at a nearby restaurant. On his return to the milk plant, a train struck him at the

intersection of the train tracks and a public alley, and Mr. Henry subsequently died in surgery.

       {¶8}    The Ohio Supreme Court held that the accident “arose out of and in the course of”

Mr. Henry’s employment. Id. at paragraph one of the syllabus. The Supreme Court noted that

the railroad was “immediately adjacent” to the milk company’s plant, that it was customary for

employees of the company to eat at the restaurant while waiting for their orders to be filed, and

that the only way to get to the restaurant from the plant was by crossing the railroad tracks. Id.;

see also Miller v. Bur. of Workers’ Comp., 9th Dist. Summit No. 24805, 2010-Ohio-1347, ¶ 15

(explaining that injuries that occur during an off-premises break are not subject to the automatic

application of the coming and going rule).

       {¶9}    According to Mr. Alexander, on the day of the collision, he began work at 6:30

a.m. When he arrived at J.B.’s shop, he parked his truck in the second row of the parking lot that

is outside the door where the company’s time clock is located. Mr. Alexander used the same

door when he left for his 30-minute lunch and walked directly from the shop door to his truck,

which is where he usually ate his lunch. Mr. Alexander testified at his deposition that some of

his co-workers also ate in their vehicles, while others used a bench that was immediately outside

the shop’s doors. According to Mr. Alexander’s brief in opposition to the motion for summary

judgment, the reason Mr. Boston was driving at the time of the collision was because he was

returning to the parking lot after picking up lunch at a fast food restaurant.

       {¶10} Upon review of the record, there is no genuine issue of material fact that the

collision occurred while both Mr. Alexander and Mr. Boston were immediately outside their

place of employment in connection with their lunch break. There is also no genuine issue of

material fact that it was customary for J.B.’s employees to eat their lunch immediately outside
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the shop’s door or in the adjacent parking lot. Upon review of the record, we conclude that the

trial court did not err when it determined that the collision occurred in the course of and arising

out of both Mr. Alexander’s and Mr. Boston’s employment. It, therefore, correctly concluded

that Mr. Boston is immune from liability under R.C. 4123.741. The trial court did not err when

it granted Mr. Boston’s motion for summary judgment. Mr. Alexander’s assignment of error is

overruled.

                                                III.

       {¶11} Mr. Alexander’s assignment of error is overruled. The judgment of the Summit

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 Summit, 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.

       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.
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      Costs taxed to Appellant.




                                             BETH WHITMORE
                                             FOR THE COURT



HENSAL, J.
CONCURS.

MOORE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

WILLIAM F. MIKESELL, Attorney at Law, for Appellant.

DAVID P. STADLER and PAUL R. MORWAY, Attorneys at Law, for Appellee.
