[Cite as Garner v. Bur. Workers' Comp., 2018-Ohio-3398.]




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

 LEROY GARNER                                     :
                                                  :
         Plaintiff-Appellant                      :   Appellate Case No. 27945
                                                  :
 v.                                               :   Trial Court Case No. 2017-CV-2871
                                                  :
 BUREAU OF WORKERS’                               :   (Civil Appeal from
 COMPENSATION, et al.                             :    Common Pleas Court)
                                                  :
         Defendant-Appellee                       :
                                             ...........

                                             OPINION

                           Rendered on the 24th day of August, 2018.

                                             ...........

SHAWN M. WOLLAM, Atty. Reg. No. 0078244 and ABIGAIL MARCHISIO, Atty. Reg. No.
0083510, 2323 W. Fifth Avenue, Suite 240, Columbus, Ohio 43204
     Attorney for Plaintiff-Appellant

JACQUELYN MCTIGUE, Atty. Reg. No. 0095961, 150 E. Gay Street, 22nd Floor,
Columbus, Ohio 43215
     Attorney for Defendant-Appellee, Ohio Bureau of Workers’ Compensation

DAVID C. KORTE, Atty. Reg. No. 0019382, MICHELLE D. BACH, Atty. Reg. No.
0065313, and JOSHUA LOUNSBURY, Atty. Reg. No. 0078175, 33 W. First Street, Suite
200, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee, Fuyao Glass America Inc.

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


HALL, J.

       {¶ 1} Leroy Garner appeals from a judgment of the Montgomery County Court of

Common Pleas granting summary judgment to Fuyao Glass America, Inc. and the Ohio

Bureau of Workers’ Compensation on his claim for workers’ compensation benefits. The

trial court properly concluded that Garner is not entitled to benefits, because his injury did

not occur in the course of his employment and did not arise out of his employment. We

affirm the trial court’s judgment.

                                      I. Background

       {¶ 2} The facts in this case are largely undisputed. Around 5:50 a.m. on November

11, 2016, Garner pulled his car into the driveway of Fuyao’s parking lot. He worked at

Fuyao performing machinery maintenance. His shift started at 6 a.m., and he would clock-

in at a time clock in a building close to the parking lot. A car driven by Anthony Jackson,

coming from the opposite direction, had pulled into the driveway right before Garner did.

Jackson did not work at Fuyao but his wife did, and he was dropping her off. Garner

testified in his deposition about what happened next:

              Okay. So we pulled in where, the driveway goes down a hill and

       curves, and as we’re going down the curve there, I don’t know why, but he

       [Jackson] just stopped all of a sudden and just sat there. So I waited, I don't

       know how long, probably 10, 20 seconds. Didn’t know why he stopped or

       what he stopped for, but I had like probably seven or eight minutes before I

       had to clock in, so I went on around him.

              And I went in, parked my vehicle, backed it into the parking space.

       Got off my vehicle and was going in to clock in and then he comes flying
                                                                                   -3-


through the parking lot yelling at me that I’m too close to his car. And I said,

well, that doesn’t make any sense. I said, I’m parked and I’m not even on

my vehicle and you just pulled up in front of me, so if I’m too close, it’s your

fault because you just pulled in. I’m not even attending to my vehicle, so if

you think I’m too close to it, then that’s your problem.

       And he didn’t like that and he kept yelling and screaming at me. I’m

like whatever. I’m just trying to ignore him to go in to clock in. And he gets

out of his car and he’s yelling and screaming at me and stuff, and he’s like

what if I just get too close to you? I’m like, I really wouldn’t recommend that.

He was like, what if I just hit you? I’m like, I definitely would not recommend

that. That’s when he slugged me and knocked me down.

       Then I got up and looked at him, I said, okay, you just assaulted me,

congratulations. I said you are going to jail. He said, oh, no, I ain’t. He got

in his car and took off.

       I then ran back to the guard shack where the guard was at and I said,

I want you to call the police on this man. I said, he just assaulted me and,

you know, I’m hurt and everything. And I got to the parking lot or got to the

guard shack before his car did and the guard informed me that he is not

going to call the police or he’s not going to call the ambulance for me. He

said if I wanted to do that, then it’s on me.

       So I said, okay, I’ll do that. So I stood there at the exit and I was

dialing 911 and Mr. Jackson yells out his car window, he’s like, are you

calling the cops? I said, absolutely, I am. I said, you assaulted me, I’m
                                                                                            -4-


       calling the cops. He said, oh, no, you’re not, and he ran over me and went

       out of the parking lot. Bounced me off of his car.

(Garner Dep. 27-29). The last paragraph refers to the fact that Garner ran after Jackson

to the exit and stood in front of Jackson’s car to prevent him from leaving, because Garner

“wasn’t just going to let him drive off.” (Id. at 49). According to Garner, Jackson proceeded

to hit him with his car, though Garner admitted that Jackson was driving only “10 to 15

[miles per hour], not real fast” when the car hit him. (Id. at 52). All of this occurred before

Garner clocked-in for work.

       {¶ 3} Garner called the police, and an officer responded. Garner told the officer

that he wanted to file charges against Jackson, and Garner went to the police department

a few days later and again said that he wanted to file charges. But the police ultimately

decided not to charge Jackson. As noted above, Jackson was not an employee of Fuyao.

Garner testified that he had never met Jackson previously: “Before he got out of his car

and hit me, I had never laid eyes on this gentleman before in my life. My first interaction

with him was his fists hitting me.” (Id. at 44). Jackson’s wife worked for Fuyao, but Garner

had never had any interaction with her.

       {¶ 4} Garner suffered a broken nose and underwent a surgical procedure to repair

the damage. Later, Garner filed a workers’ compensation claim. The claim was denied by

the Bureau of Workers’ Compensation—first by a District Hearing Officer and then by a

Staff Hearing Officer, who both concluded that Garner did not sustain his injury in the

course of his employment and that the injury did not arise out of his employment. Garner

appealed the denial to the Montgomery County Court of Common Pleas. Fuyao and the

Bureau of Workers’ Compensation each filed a motion for summary judgment. On
                                                                                          -5-


February 22, 2018, the trial court granted both motions. Like the hearing officers, the court

concluded that Garner was not injured in the course of his employment and that his injury

did not arise out of his employment, because the origin of the assault was not work-

related.

       {¶ 5} Garner appeals.

                                        II. Analysis

       {¶ 6} The sole assignment of error states:

       The Trial Court erred in granting Defendants summary judgment and

       finding, as a matter of law, that Mr. Garner’s injuries did not occur in the

       course of and arising out of his employment.

       {¶ 7} “Civ.R. 56(C) provides that summary judgment may be granted when the

moving party demonstrates 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) viewing the evidence most

strongly in favor of the nonmoving party, 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.” Taylor v. Meijer, Inc., 182 Ohio App.3d 23, 2009-Ohio-1966,

911 N.E.2d 344, ¶ 11 (2d Dist.), citing State ex rel. Grady v. State Emp. Relations Bd., 78

Ohio St.3d 181, 183, 677 N.E.2d 343 (1997); Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64, 375 N.E.2d 46 (1978). “Our review of the trial court’s decision to grant

summary judgment is de novo.” (Citation omitted.) Taylor at ¶ 11.

       {¶ 8} Ohio’s workers’ compensation statutes provide benefits for injuries “received

in the course of, and arising out of, the injured employee’s employment.” R.C. 4123.01(C).

The general test is “whether a ‘causal connection’ existed between the employee’s injury
                                                                                            -6-


and his employment either through the activities, the conditions, or the environment of the

employment.” Taylor at ¶ 12, citing Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d

1271 (1990), citing Indus. Comm. v. Weigandt, 102 Ohio St. 1, 130 N.E. 38 (1921). “The

in-the-course-of-employment and arising-out-of-employment elements overlap, but an

injured employee must prove the existence of both elements.” Id. at ¶ 15, citing Ruckman

v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 124, fn. 3, 689 N.E.2d 917 (1998).

       {¶ 9} The “in the course of” element refers to the “time, place, and circumstances

of the injury, and limits compensation to injuries received while the employee was

engaged in a duty required by the employer.” Janicki v. Kforce.com, 167 Ohio App.3d

572, 2006-Ohio-3370, 855 N.E.2d 1282, ¶ 13 (2d Dist.), citing Fisher at 277. The “arising

out of” element “contemplates a causal connection between the injury and the

employment.” Fisher at 278. A causal connection is determined by looking at “the totality

of the facts and circumstances surrounding the accident, including the proximity of the

scene of the accident to the place of employment, the degree of control the employer had

over the scene of the accident, and the benefit the employer received from the injured

employee’s presence at the scene of the accident.” Taylor at ¶ 14, citing Fisher at 277,

citing Lord v. Daugherty, 66 Ohio St.2d 441, 423 N.E.2d 96 (1981), syllabus. But because

workers’ compensation cases are very fact specific, “no one test or analysis can be said

to apply to each and every factual possibility.” Fisher at 280. For this reason, “historically,

similar fact patterns have promulgated their own set of rules.” Id.

       {¶ 10} “One such fact pattern involves fights and assaults that occur at the

workplace.” Foster v. Cleveland Clinic Found., 8th Dist. Cuyahoga Nos. 84156, 84169,

2004-Ohio-6863, ¶ 13. “In workers’ compensation cases concerning fights and assaults
                                                                                        -7-


during work hours at the place of employment, Ohio courts have consistently focused on

two factors: (1) if the origin of the assault was work-related; and (2) if the claimant was

not the instigator.” Id., citing Coleman v. APCOA, Inc., 10th Dist. Franklin No. 99AP-60,

2000 WL 192560, *2 (Sept. 28, 1999). Accord Meager v. Complete Auto Transit, Inc., 2d

Dist. Montgomery No. 13062, 1992 WL 41831 (Mar. 4, 1992). “The injury is compensable

only if both findings are made.” (Citations omitted.) Coleman at *2.

       {¶ 11} The trial court here relied primarily on the Eighth District’s judgment in

Foster v. Cleveland Clinic, in which workers’ compensation benefits were sought after a

woman was shot to death at the clinic where she worked. The woman and her husband

were having marital troubles, and her husband had made several violent outbursts. One

day, the woman was driven to work by her ex-husband. While in the parking lot, the

woman and her ex-husband were confronted by her gun-wielding current husband. He

shot at their vehicle, injuring the ex-husband, and then he chased the woman into the

building housing the clinic and fatally shot her in the lobby. Neither the husband nor the

ex-husband was an employee of the clinic. The appellate court affirmed summary

judgment for the employer and the Bureau of Workers’ Compensation, because the

assault was not work-related:

       Construing this evidence in a light most favorable to [the claimant],

       reasonable minds could only conclude that [the woman]’s fatal injury arose

       out of a personal dispute between her and [her husband] that was unrelated

       to her employment with the Clinic. There is simply no evidence to remotely

       suggest that [the husband]’s fatal shooting of [the woman] originated out of,

       was related in any way to, or was exacerbated by, her employment at the
                                                                                             -8-


       Clinic. The quarrel was nothing more than a domestic dispute brought to

       fruition in the employment setting.

Foster at ¶ 16. “It is apparent,” said the court, “that the shooting that morning arose strictly

out of the marital discord between [the husband] and [the woman], unrelated to any job

responsibilities that [she] had at the Clinic. [Her] injury was ‘independent of and

disconnected with’ employment and, therefore, is noncompensable.” Id. at ¶ 23. The court

found no evidence showing a causal connection between the woman’s injury and her

employment. In fact, the court found that the evidence showed just the opposite:

       [T]he evidence reflects that although the fatal shooting occurred in close

       proximity to [her] workplace, it did not occur during working hours, as she

       had not yet started her shift when the shooting occurred. Moreover, she was

       not performing her work duties when the shooting occurred, nor was she

       reporting for duty, as [the claimant] contends. Instead, the evidence

       demonstrates that [she] was fleeing her assailant when she entered the

       lobby of the Clinic; she was not in or near her normal work area when the

       shooting occurred. Finally, the evidence demonstrates that the argument

       between [the woman] and [her husband] was not related to any of her work

       duties; it was a personal dispute exacerbated by [her] ongoing off-duty

       relationship with her ex-husband.

Id. at ¶ 27.

       {¶ 12} Garner relies on this Court’s decision in Meager v. Complete Auto Transit,

Inc., 2d Dist. Montgomery No. 13062, 1992 WL 41831 (Mar. 4, 1992). In that case, the

claimant and another employee engaged in horseplay on company time that resulted in
                                                                                          -9-


spilled coffee. The claimant left to work on his personal vehicle on company time, which

he did with permission. The other employee clocked-out and then assaulted the claimant.

We concluded that the claimant’s injury could be compensable “because although he was

not engaged in the actual performance of work for [his employer], he was performing work

within the employer’s scope of permission.” Meager at *3. So the claimant’s work on his

personal vehicle was “arguably within the service of his employer and within the

acceptable course of conduct.” Id. at *4. We further noted that injuries sustained during

personal breaks are typically compensable and that “whether [the claimant]’s five minutes

of work on his personal vehicle could be considered a personal break constitutes a

genuine issue of material fact.” Id.

       {¶ 13} The present case is distinguishable from Meager and analogous to Foster.

The circumstances in Meager plainly differ from those in this case, in several respects.

Unlike here, in Meager the dispute that led to the assault and the injury arose in the actual

workplace, during work time, with another employee. We agree with the trial court that

the circumstances in which Garner was injured are more like those in Foster. Like in

Foster, the injury here occurred outside the actual workplace and did not occur during

working hours, as Garner was not performing his work duties when he suffered the injury.

Also, the assault here did not involve another employee, and the dispute leading up to

the assault was not related to Garner’s work duties. Like in Foster, the dispute that led to

the assault was over an entirely unrelated personal matter.

       {¶ 14} The trial court was not convinced by Garner’s argument that his injury is

compensable solely because it occurred in the employee parking lot. Neither are we.

Other courts have concluded that an injury was not compensable where the origin of the
                                                                                         -10-


assault was not work-related, even though the injury occurred close to the place of

employment. See, e.g., Foster, 8th Dist. Cuyahoga Nos. 84156, 84169, 2004-Ohio-6863,

at ¶ 28 (holding that the woman’s fatal injury “was not work-related, even though it

occurred on her employer’s premises”); Lowe v. Cox Paving, Inc., 190 Ohio App.3d 154,

2010-Ohio-3816, 941 N.E.2d 88, ¶ 22 (12th Dist.) (although the events “occurred on the

jobsite, the disagreement did not involve work-related matters,” because the argument

“resulted from a personal dispute over beer”). Similarly, Garner’s injury is not

compensable solely because it occurred in the employee parking lot.

          {¶ 15} Construing the evidence most strongly in favor of Garner, we agree with the

trial court that there is no genuine issue of material fact and that reasonable minds can

conclude only that Garner’s injuries were not received “in the course of” and “arising out

of” his employment. Consequently he is not entitled to workers’ compensation benefits

and Fuyao and the Bureau of Workers’ Compensation are entitled to judgment as a matter

of law.

                                         III. Conclusion

          {¶ 16} The trial court did not err by entering summary judgment. The sole

assignment of error is overruled.

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

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




WELBAUM, P. J., and FROELICH, J., concur.
                        -11-




Copies mailed to:

Shawn M. Wollam
Abigail Marchisio
Jacquelyn McTigue
David C. Korte
Michelle D. Bach
Joshua R. Lounsbury
Hon. Dennis J. Langer
