[Cite as Wining v. Unique Ventures Group, L.L.C., 2011-Ohio-2474.]




                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


WILLIAM WINING, DECEASED, BY                     )
AND THROUGH ZOSIMAR WINING,                      )
ADMINISTRATOR,                                   )
                                                 )       CASE NO.     10 MA 111
        PLAINTIFF-APPELLEE,                      )
                                                 )
        - VS -                                   )       OPINION
                                                 )
UNIQUE VENTURES GROUP, LLC,                      )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                            Civil Appeal from Common Pleas Court,
                                                     Case No. 08CV4917.

JUDGMENT:                                            Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                              Attorney Patrick Fire
                                                     721 Boardman-Poland Road
                                                     Boardman, Ohio 44512

For Defendant-Appellant:                             Attorney Michelle Holiday
                                                     614 West Superior Avenue
                                                     Rockefeller Building, Suite 625
                                                     Cleveland, Ohio 44113

                                                     Attorney Jan O’Halloran
                                                     5437 Mahoning Avenue, Suite 22
                                                     Youngstown, Ohio 44515

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                     Dated: May 18, 2011
VUKOVICH, J.

       ¶{1}   Defendant-appellant Unique Ventures Group, LLC (employer) appeals
the decision of the Mahoning County Common Pleas Court granting summary
judgment to plaintiff-appellee William Wining, Deceased, by and through Zosimar
Wining, Administrator of the Estate (estate). The grant of summary judgment entitled
the estate to receive death benefits from the Workers’ Compensation Fund.
       ¶{2}   Employer contends that Wining’s death did not occur while “in the course
of” and “arising out of” employment. It asserts that Wining was a fixed-situs employee
and, accordingly, since his death occurred while en route to Perkins Restaurant, his
place of employment, the coming-and-going rule applies and the only way his death
would be compensable would be if one of the exceptions to the coming-and-going rule
is applicable. The estate argued, and the trial court found, that the special mission
exception applied. Employer avers that the holding is incorrect; Wining’s action of
traveling to his place of employment merely to share his work keys with his fellow
associate manager Amanda Howard at a time when he was not scheduled to work
does not constitute a special mission.
       ¶{3}   The estate counters the above arguing that Wining was on a special
mission because he was directed by his superiors to share his keys with Howard, he
forgot to leave those keys with her went he left, she needed those keys to perform the
mandatory and necessary task of locking the restaurant, and that his sole purpose for
traveling on the roads that night was to deliver his keys to the restaurant.
       ¶{4}   Considering the arguments presented, the trial court’s grant of summary
judgment is hereby affirmed. As explained in depth below, Wining’s sole reason for
traveling on the night of his accident was to deliver the keys to the restaurant. The
delivery of the keys was a special mission for the employer because of the importance
of securing the restaurant at night was of the utmost importance to mangers and to
appellant’s Director of Operations.
                         STATEMENT OF CASE AND FACTS
       ¶{5}   In the early morning hours of January 6, 2008, Wining was killed while en
route to his place of work, Perkins restaurant.        Following his death, his widow
requested death benefits from the Workers’ Compensation Fund. The District Hearing
Officer denied the claim finding that William Wining’s death did not arise within the
scope and course of his employment. The estate appealed that decision. The Staff
Hearing Officer reversed the District Hearing Officer’s decision and allowed the death
benefit. It found that the special mission exception to the coming-and-going rule was
applicable. Appellant-employer appealed that decision to the Industrial Commission
and the appeal was denied. Employer then appealed to the Mahoning County
Common Pleas Court.        In response to the notice of appeal, the estate filed a
Petition/Complaint to Continue to Participate in the Workers’ Compensation Fund. As
the matter proceeded through the common pleas court, the parties stipulated to the
following facts.
       ¶{6}   On the date of his death, Wining was employed by appellant as
Associate Manager of Perkins Restaurant. Amanda Howard was also employed by
appellant as Associate Manager. At some point prior to January 6, 2008, Howard had
lost her keys to the restaurant. Wining and Howard had made arrangements to share
Wining’s keys. Around midnight on January 6, 2008, Howard phoned Wining asking if
he left his keys for her so that she could close the restaurant. The parties agree that
one of the job responsibilities of the closing manager is to secure all doors and locks at
the end of their shift. Wining informed Howard that he would return to Perkins to bring
his keys to her. While en route to the restaurant Wining was killed in a motor vehicle
accident.
       ¶{7}   The parties each filed motions claiming that they were entitled to
judgment as a matter of law. They both asserted that the matter before the court was
purely a legal question. Specifically, when Wining was killed was he on a special
mission for his employer? On June 11, 2010, the trial court issued its judgment and
granted summary judgment for the estate finding that at the time of the automobile
accident that caused his death, Wining was engaging in a special mission for his
employer.
               STANDARD OF REVIEW AND PROCEDURAL MATTERS
        ¶{8}   In reviewing a summary judgment award, we apply a de novo standard
of review. Cole v. Am. Industries & Resources Corp. (1998), 128 Ohio App.3d 546,
552, 715 N.E.2d 1179. Thus, we apply the same test as the trial court. Civ.R. 56(C)
provides that the trial court shall render summary judgment if no genuine issue of
material fact exists and when construing the evidence most strongly in favor of the
nonmoving party, reasonable minds can only conclude that the moving party is entitled
to judgment as a matter of law. State ex rel. Parsons v. Flemming (1994), 68 Ohio
St.3d 509, 511, 1994-Ohio-172, 628 N.E.2d 1377. A “material fact” depends on the
substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995),
104 Ohio App.3d 598, 603, 662 N.E.2d 1088, citing Anderson v. Liberty Lobby, Inc.
(1986), 477 U.S. 242, 247-48, 106 S.Ct. 2505.
                              ASSIGNMENT OF ERROR
        ¶{9}   “THE TRIAL COURT ERRED WHEN IT FOUND THAT WILLIAM
WINING WAS ENTITLED TO PARTICIPATE IN THE WORKERS’ COMPENSATION
FUND.”
        ¶{10} “The test of the right to participate in the Workers' Compensation Fund is
not whether there was any fault or neglect on the part of the employer or his
employees, but whether a ‘causal connection’ existed between an employee's injury
and his employment either through the activities, the conditions or the environment of
the employment.” Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 303, 401 N.E.2d
448. “In the course of” and “arising out of” is the test used to determine whether the
injury is compensable. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d
1271.    The Supreme Court has explained that these two prongs are conjunctive,
requiring both to be satisfied before compensation is allowed. Id.
        ¶{11} As to the “in the course of” prong, the Court has stated that the phrase
“limits compensable injuries to those sustained by an employee while performing a
required duty in the employer's service. ‘To be entitled to workmen's compensation, a
workman need not necessarily be injured in the actual performance of work for his
employer.’ An injury is compensable if it is sustained by an employee while that
employee engages in activity that is consistent with the contract for hire and logically
related to the employer's business.” Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio
St.3d 117, 120, 1998-Ohio-455, 689 N.E.2d 917 (internal citations omitted).         This
prong requires a consideration of factors such as “time, place, and circumstances” of
the injury to determine the existence of a nexus between the employment and the
activity causing the injury. Fisher, supra, at 277.
       ¶{12} The second prong, “arising out of,” contemplates a causal connection
between the injury and the employment. Ruckman, supra, at 121-122. The analysis
under this prong requires a totality of the circumstances review of the incident. Id. at
122. There are three basic factors that the Court set forth to assist in determining
whether an injury arose out of the employee's employment: “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 122, quoting
Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444. However, this list is not exhaustive,
but rather is illustrative. Fisher, supra, at 279, fn. 2. Workers' compensation cases are
intensely fact specific and a flexible and analytically sound approach is preferable to
rigid rules that can lead to unsound and unfair results. Id. at 280. Likewise, the
workers' compensation statutes must be liberally construed in favor of the employee.
R.C. 4123.95; Fisher, supra, 278.
       ¶{13} When an employee suffers an injury in a traffic accident, courts use the
coming-and-going rule in determining whether the injury occurred “in the course of”
and “arises out of” the employment relationship so as to constitute a compensable
injury. Ruckman, supra, at 119. The coming-and-going rule provides that, in general,
an employee with a fixed place of employment who is injured while traveling to and
from the place of employment is not entitled to compensation for the injury because
the requisite causal connection between the injury and the employment does not exist.
MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, citing
Bralley, supra. However, courts have recognized exceptions to this rule: if the injury
occurs in the “zone of employment;” if it was a result of a “special hazard” of the
employment; if based upon the totality of the circumstances, there is a sufficient causal
connection between the injury and the employment to warrant compensation; or if the
injury occurred while the employee was on a special mission, errand, service or task
for the employer. Stivison v. Goodyear Tire & Rubber Co. (1997), 80 Ohio St.3d 498,
500, 1997-Ohio-321, 687 N.E.2d 458 (stating “zone of employment” and “special
hazard” exception); Seese v. Ohio Bureau of Workers’ Comp., 11th Dist. No. 2009-T-
0018, 2009-Ohio-6521, ¶33 (discussing special mission exception); Gonzales v.
Administer, Bureau of Workers’ Comp., 7th Dist. No. 03MA86, 2004-Ohio-1562, ¶14,
28, 36 (discussing “zone of employment,” “special hazard” and totality of the
circumstances exceptions); Pierce v. Keller (1966), 6 Ohio App.2d 25, 215 N.E.2d 601
(discussing special mission, errand, service or task exception).
       ¶{14} The coming-and-going rule and its exceptions have no application to a
non-fixed-situs employee. See Lippolt v. Hague, 10th Dist. No. 08AP-140, 2008-Ohio-
5070, ¶12, citing Fletcher v. Northwest Mechanical Contr., Inc. (1991), 75 Ohio App.3d
466, 473, 599 N.E.2d 822. Where traveling itself is part of the employment, either by
virtue of the nature of the occupation or by virtue of the contract of employment, the
employment situs is non-fixed.
       ¶{15} Here, it is undisputed that Wining was a fixed-situs employee. Thus,
unless an exception to the coming-and-going rule is applicable, then there is no basis
to find that his estate is entitled to death benefits. The only exception argued in this
case is the special mission exception.
       ¶{16} One of the first cases that addressed this exception was the Third
Appellate District’s Pierce case. In Pierce, the court explained that in order for the
exception to apply, “the mission must be the major factor in the journey or movement,
and not merely incidental thereto, and the mission must be a substantial one.” Pierce,
supra, at 29. In that case, the court reasoned that while Pierce’s supervisor might
have called him the night before and gave him instructions to give to the maintenance
crew foreman the next morning upon arriving at work at his regularly scheduled time,
such a mission was incidental to and not the reason for the journey. Id. at 29-30. “The
fact that he was carrying instructions did not require him to travel by a different route
by different means of transportation, or at a different time, and, if he were not carrying
instructions, the likelihood was that he would have been on the same route at the
same time as he was when injured. The carrying of instructions did not place him
there, and his injuries did not follow ‘as a result of exposure occasioned by the nature,
conditions or surroundings of the employment.’” Id. See, also, Monjar v. Mayfield
(1987), 35 Ohio App.3d 76, 519 N.E.2d 681 (stating that there was no special errand
when janitor was transporting cleaning supplies by instruction of the employer,
because the cleaning supplies did not contribute to the accident and she would have
been traveling the same route, at the same time, under the same conditions
regardless of whether she was transporting cleaning supplies).
       ¶{17} Likewise, more recently, the Eleventh Appellate District has looked at the
special mission exception and found that it was not applicable to the facts presented to
it. Seese, 11th Dist. No. 2009-T-0018, 2009-Ohio-6521. In Seese, the employee, a
union carpenter, was injured while traveling to work on a day that he was not normally
scheduled to work. The employer called him on his day off because a storm the night
before had damaged the roof and the employer needed a carpenter to repair it. In
finding that the exception did not apply, the court stated:
       ¶{18} “We recognize that but for his employer's need for his presence at work
due to a storm, he would not have sustained the injuries. However, the courts have
required an employee injured while commuting to a fixed work site to satisfy more than
the but-for test in order to participate in the Workers' Compensation program.” Id. at
¶40 (emphasis in original).
       ¶{19} It then explained that like the employee in Pierce, Seese was not
performing any special mission for his employer when he was injured. Id. at ¶42. He
was not carrying out a special mission while he traveled to work. Id. “Commuting to
work on a day not regularly scheduled does not constitute a special mission
contemplated by the exception as explained in Pierce.” Id
       ¶{20} These cases show that in order for the special mission exception to be
met, the mission must be a major factor in the journey; it has to meet more than a “but
for” test. Both the trial court and the Staff Hearing Officer found that the delivery of the
keys was substantial in the journey to Perkins and thus, the special mission exception
has been met. The Staff Hearing Officer explained:
       ¶{21} “In the claim at hand, the Staff Hearing Officer finds that the criteria of
the ‘special mission exception’ have been satisfied.          The Staff Hearing Officer
concludes that Wining’s errand on the night of 1/6/2008 was performed for the benefit
of his employer. Had Wining not agreed to leave his home on the late evening hours
of 1/6/2008, Ms. Howard would have had difficulty securing and locking the restaurant
premises.    Ms. Howard testified that locking the premises was a substantially
important job function.    Ms. Savchuk, Direction [sic] of Operations, testified to the
urgency in which the Regional Manager should have acted to replace the lost key of
Ms. Howard.       And Wining’s job description charged him with the responsibility of
‘security measures and adherence to safety requirements’. All of those factors, when
coupled with the knowledge that Wining was not scheduled to work on the evening of
1/6/2008 (and in fact was preparing for bed when Ms. Howard telephoned) persuade
this Staff Hearing Officer that Wining’s delivery of keys to Ms. Howard constituted a
‘special mission’ for his employer. The Staff Hearing Officer is similarly persuaded that
Wining’s delivery of keys to Ms. Howard was the sole and exclusive purpose for his
journey, and that it was a journey of substantial importance. Simply stated, Wining’s
mission to effectuate a proper and secure lock-up of the restaurant on the evening of
1/6/2008 would have assured the protection and security of the employer’s property,
premises, and business operations by greatly limiting the chance of theft, trespass,
arson or other loss.”
       ¶{22} Likewise, the trial court reasoned:
       ¶{23} “Not only was the delivery of the keys the major factor in his journey that
evening, it was the only reason for his journey. Mr. Wining was neither commuting to
or driving home from work.       The purpose of his excursion that evening was not
incidental to his commute to work and he was only operating his vehicle that evening
to deliver the keys to Ms. Howard and return home. Certainly, the act of securing and
closing the premises was a critical and substantial duty to be performed.           The
decedent’s sole and exclusive purpose for traveling to the restaurant was to perform a
special mission of substantial importance to his employer. Delivery of the keys was
the major factor in his journey and not merely incidental thereto.” 06/11/10 J.E.
       ¶{24} We agree with the above reasoning. The sole reason for Wining being
on the road that evening was to deliver the keys to Ms. Howard so that she could lock
the restaurant.     Securing the restaurant is a substantially important job.       Both
associate manager Howard and the Director of Operations for appellant employer,
Patsy Savchuk, attested to the importance of locking up the building at night. (Savchuk
Depo. 17-18; Howard Depo. 17). Thus, transporting the keys to the restaurant was the
special mission and since he was injured while performing the special mission, the
estate is entitled to death benefits. Consequently, this assignment of error has no
merit.
         ¶{25} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, P.J., concurs.
DeGenaro, J., concurs.
