COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59306 WANDA SMITH, ET AL. : : : : JOURNAL ENTRY Plaintiffs-Appellants : : AND vs. : : OPINION WEST SIDE COMMUNITY HOUSE, : ET AL. : : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 167803 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JOHN P. TREMSYN Thomas & Boles 36 South Franklin Street Chagrin Falls, Ohio 44022 For Defendants-Appellees: BRUCE P. MANDEL STEPHEN J. GOODMAN Ulmer & Berne 900 Bond Court Building Cleveland, Ohio 44114 - 2 - KRUPANSKY, C.J.: The appeal sub judice arises from a personal injury/wrongful death and related tort action filed on April 11, 1989 by appellants Wanda Smith, individually and in her capacity as administratrix of the estate of her son Marvin Dale Smith. Decedent was a sixteen-year-old tenth-grade student employed part-time by appellee West Side Community House ("WSCH"), a social service mission of the United Church of Christ, in its weatherization program repairing windows for the neighborhood elderly. Decedent obtained permission from his mother to go with a number of other minor employees in the program on a recreational activity sponsored by WSCH and supervised by several of its adult employees on June 23, 1988. The picnic and outing were held at Cleveland Lakefront State Park. During the course of the day several employees went swimming from the public beach. Decedent and Tyrone Williams, another minor in the program, also went swimming and both ultimately drowned. Decedent's body was found by two fishermen floating in Lake Erie west of the breakwall three days later. Appellants' complaint contained four counts against appellees WSCH, one count each against Jane and John Doe and four adult employees, viz., Reginald Peeple, Renee Sanders, Yvette Medina and Cynthia Maxwell (the "Supervisors"). The first three counts raised claims for personal injury, wrongful death - 3 - and respondeat superior liability based on appellees alleged negligent supervision of decedent at the outing. The remaining two counts stated claims by Wanda Smith individually for infliction of emotional distress and respondeat superior liability. None of the counts alleged intentional torts. Appellees' joint answer denied liability and raised their respective workers' compensation immunity defenses. Appellees thereafter obtained a court order limiting appellants' discovery to the applicability of the immunity defense and subsequently moved for summary judgment on that basis. The trial court denied appellants' motions for leave to file an amended complaint and to compel the release of appellee Peeple's medical records after his subsequent suicide. The amended complaint sought to raise the "dual capacity" doctrine as an exception to appellees' asserted workers' compensation immunity defenses. The new sixth count alleged appellees stepped outside their respective roles as employer and co-employees of decedent by acting inter alia as (1) supervisor, (2) lifeguard (since the employees were allegedly swimming in an area not supervised by the park lifeguard), and/or (3) in loco parentis (based on the claim appellees failed to advise decedent's parents of the location of the outing before Wanda Smith executed the permission form). - 4 - The trial court granted summary judgment on the personal injury and wrongful death claims in the first three counts of appellants' complaint. Appellees subsequently filed a supplemental motion for summary judgment on the two remaining claims for emotional distress on behalf of Wanda Smith. The trial court thereafter granted summary judgment for appellees on the remaining two claims of emotional distress, granted appellants' motion to reconsider summary judgment on the first three claims, but upon reconsideration again granted summary judgment to appellees on the first three claims./1\ Appellants timely appealed raising five assignments of error. The Court will address appellants' second assignment of error first. I. Appellants' second assignment of error follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY GRANTING DEFENDANTS- APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO THE APPLICABILITY OF THE DUAL CAPACITY DOCTRINE AND DEFENDANTS-APPELLEES' NEGLIGENCE IN THE PERFORMANCE OF DUTIES ATTENDANT TO THAT DUAL CAPACITY. Appellants' second assignment of error is without merit. /1\ Appellants have not appealed from the grant of summary judgment on the two emotional distress claims asserted by Wanda Smith in her individual capacity, therefore, this appeal considers the trial court's summary judgment based upon only the first three claims. - 5 - Civ. R. 56 provides that summary judgment may be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action demonstrate the following: (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 reasonable minds can come to but one conclusion viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made and the conclusion is adverse to that party. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 117. Appellants filed an affidavit of Wanda Smith as executor of decedent's estate in opposition to appellees' motion for summary judgment, together with depositions and written statements from the lifeguard employed by the Ohio Department of Natural Resources on duty at the park, Park Ranger Bernard Pensock who investigated the occurrences, other officers who found decedent's body and several appellees. The Court will analyze the claims against WSCH and the Supervisors seriatim. A. R.C. 4123.74 governs an employer's immunity from - 6 - nonintentional tort common law tort claims and provides as follows: Except as authorized in section 4121.80 of the Revised Code, employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation directly to his injured employees or the dependents of his killed employees, whether or not such injury, occupational disease, bodily condition, or death is compensable under sections 4123.01 to 4123.94 of the Revised Code. (Emphasis added). An employer with an Industrial Commission certificate of workers' compensation insurance governing the period when a workplace injury or death occurs to an employee is entitled to judgment in its favor based on the statutory immunity from nonintentional personal injury and wrongful death tort claims as a matter of law. Bridges v. Nat'l. Engineering & Contracting Co. (1990), 49 Ohio St. 3d 108. Appellants contend WSCH is not entitled to the statutory immunity in the case sub judice since: (1) decedent was not an employee of WSCH at the time of his death, (2) decedent's death was not within the scope of his employment, and (3) WSCH occupied a "dual capacity" to decedent as supervisor, lifeguard and/or in - 7 - loco parentis thereby exceeding the scope of such immunity. We analyze each of these arguments seriatim. Employee Status WSCH supported its motion for summary judgment on the issue of decedent's employment status with an application and written contract for employment executed by decedent, time clock punch cards, attendance reports and payment and tax records, including a paycheck for the day of the outing cashed after the death of decedent by Wanda Smith. Appellants filed an affidavit of Wanda Smith, as administratrix of decedent's estate, in opposition purporting to retroactively disaffirm decedent's written employment contract on the grounds the contract was executed when decedent was a minor and was done without his parents' knowledge or approval. Neither party has cited any relevant authority to support their respective arguments. There is no genuine dispute WSCH and decedent satisfy the statutory definitions of "employer" and "employee" respectively. WSCH was decedents' "employer" with the right to exercise day-to- day control over the manner decedent performed work in its weatherization program. Foran v. Fisher Foods, Inc. (1985), 17 Ohio St. 3d 193. The Workers' Compensation Act definition of "employee" applies to "every person" in the service of an - 8 - employer, specifically includes minors/2\ and does not list minors among the category of persons omitted from this definition./3\ Minors are expressly deemed by statute to be sui juris for workers' compensation purposes. R.C. 4123.89 provides in pertinent part as follows: For the purpose of Chapter 4123. of the Revised Code, a minor is sui juris, and no other person shall have any cause of action or right to compensation for an injury to such minor workman... (Emphasis added). Sui Juris is defined as follows: Of his own right; possessing full social and civil rights; not under any legal disability, or the power of another, or guardianship. /2\ R.C. 4123.01(A)(1)(b) defines "employee" in pertinent part as follows: Every person in the service of any person, firm, or private corporation, including any public service corporation, that (i) employs one or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens and minors, household workers who earn one hundred sixty dollars or more in cash in any calendar quarter from a single household and casual workers who earn one hundred sixty dollars or more in cash in any calendar quarter from a single employer... (Emphasis added). /3\ R.C. 4123.01(A)(2) excludes ministers, assistant or associate ministers, and officers of family farm corporations from the definition of "employee" unless the employer elects otherwise. - 9 - Having capacity to manage one's own affairs; not under legal disability to act for one's self. Black's Law Dictionary (5th ed. 1983). It is well settled that the same immunity principles which bar nonintentional common law tort claims filed by adults apply to those filed by minors. E.g., Lopez v. King Bridge Co. (1923), 108 Ohio St. 1 (even when the minor is employed in violation of child labor statutes). Consequently, the General Assembly has determined that employment contracts with minors may not be retroactively disaffirmed by the minor or anyone acting on the minor's behalf. Id. Accordingly, the trial court properly determined there was no genuine issue as to whether decedent was employed by WSCH at the time of his death. Scope of Employment Appellants argue decedent's attendance at the picnic was beyond the scope of his employment. Although decedent's duties under his employment contract with WSCH included weatherizing windows for the neighborhood elderly, the contract specifically required decedent "to actively participate in . . . social and recreational activity related to the Youth Employment Project" such as the outing in the case sub judice. The evidence demonstrates decedent attended a picnic with the group at a neighborhood church after obtaining similar written permission from Wanda Smith on at least one prior - 10 - occasion before the accident sub judice. Accordingly, decedent's death arose within the scope of his employment under the express terms of the contract. Cf. Edwards v. Stringer (1978), 56 Ohio App. 2d 283 (the survivors of an employee working for a temporary labor company assigned to work cleaning a barge as part of his employment on the day of the employee's death by drowning are entitled to recover workers' compensation benefits). The trial court may have concluded appellants ratified decedent's attendance at the event by cashing decedent's paycheck after his death with full knowledge of the location of the outing even though appellants may not have known the proposed location when initially signing the permission slip. The Ohio Supreme Court has held that even when an employee is not compelled or compensated to attend employer-sponsored recreational activities as in the case sub judice, injuries are deemed to occur in the course of employment: An injury, which is sustained by an employee of a small business while attending a picnic which is sponsored, paid for and supervised by the employer for the purpose of generating friendly relations with his employees, is, as a matter of law, sustained in the course of his employment. Kohlmayer v. Keller (1970), 24 Ohio St. 2d 10, syllabus (emphasis added). Accordingly, the injury to an employee who broke his neck at a picnic after diving off a pier at his employers' - 11 - premises in Kohlmayer was deemed to occur in the course of his employment. Appellants' efforts to distinguish Kohlmayer on the grounds decedent was a minor and part-time employee at the time of his death are unpersuasive given Revised Code Section 4123.89 which treats part-time minor employees as adults. Similar principles apply regardless of whether or not the recreational activity is conducted on the employer's premises, e.g., Ott v. Industrial Commission (1948), 83 Ohio App. 13, and despite the claim the picnic was offered to the employees as a reward for prior volunteer work. Beck v. Young (1962), 119 Ohio App. 109. Recent amendments to the Workers' Compensation Act in light of these cases support the Court's conclusion decedent's death at the employer-sponsored recreational activity was within the scope of his employment in the case sub judice./4\ Employers and employees who desire a result different from Kohlmayer have the option to agree in advance that such injuries will not be compensable under the workers' compensation benefit system. R.C. 4123.80 provides in pertinent part as follows: No agreement by an employee to waive his rights to compensation under this chapter is valid, except that: * * * (B) An employee may waive his rights to compensation or benefits as authorized pursuant to /4\ Am. Sub. S.B. No. 307, 141 Ohio Laws 718 (1986). - 12 - division (C)(3)of section 4123.01 of the Revised Code. (Emphasis added). R.C. 4123.01(C)(3) excludes from the otherwise applicable general definition of "injury" as follows: Injury or disability incurred in voluntary participation in an employer-sponsored recreation or fitness activity if the employee signs a waiver of his right to compensation or benefits under Chapter 4123. of the Revised Code prior to engaging in the recreation or fitness activity. (Emphasis added). The General Assembly has determined that injuries occurring at such events are deemed to be compensable under the workers' compensation system when attendance is compulsory or no such waiver is executed in advance as was the situation in the case sub judice. Accordingly, the trial court properly concluded there was no genuine issue of fact concerning whether decedent's death occurred in the scope of his employment since decedent's attendance and participation in the recreational activity was compulsory under his employment contract and no waiver was signed prior to engaging in the activity. Dual Capacity The trial court likewise properly concluded there was no genuine issue of material fact concerning the applicability and scope of WSCH's immunity defense. As noted above, the express terms of decedent's employment contract required decedent's attendance and participation in recreational activities sponsored and supervised by his employer. Each of appellant's "dual - 13 - capacity" claims, regardless of how denominated, are based upon the allegedly negligent supervision or oversight of decedent during the course of this employment. Appellants have failed to demonstrate WSCH assumed any capacity sufficiently distinct and independent from that as decedent's employer at the picnic to invoke the dual capacity doctrine. The Ohio Supreme Court has recently stated summary judgment in favor of an employer is appropriate in this context when an employer does not "step outside" the boundaries of the employer-employee relationship and assume separate and distinct duties to the employee. Schump v. Firestone Tire & Rubber Co. (1989), 44 Ohio St. 3d 148. The Court recognized that an employer does not step outside the employment relationship and assume a second capacity as a matter of law when the activity of an employer does not generate a duty extending to the general public and the employee is injured during the course of employment by a risk created by the employer which is limited to the workplace. Id. at 151 (citing Simpkins v. Delco Moraine Div. (1981), 3 Ohio App. 3d 275; Knous v. Ridge Machine Co. (1979), 64 Ohio App. 2d 251). Appellants contend appellees allowed decedent and other employees to swim in bad weather in a dangerous area not supervised by the park lifeguard. However, appellants have not alleged or offered any evidence that appellees acted as - 14 - supervisor to any non-employees or members of the general public at the outing or at any subsequent or prior occasion. The deposition of the park lifeguard demonstrates her presence on the beach to protect the general public on the day of the outing within the restricted swimming area. Accordingly, appellants claims are insufficient as a matter of law. Id. Appellants have also failed to identify two distinct and unrelated obligations owed to decedent by WSCH arising from two different capacities. The duty of an employer to supervise an employee at compulsory recreational events conducted off premises is no different than the employer's duty of supervision at the ordinary place of employment regardless of the location or activities involved. An employer's duty of supervision at a recreational event sponsored and supervised by the employer is simply one aspect of the employer's general duty as employer and is "inextricably wound" to the employer's ordinary duties to supervise the employee. Schump v. Firestone Tire & Rubber Co., supra at 152. Appellants' reliance on Mercer v. Uniroyal, Inc. (1976), 49 Ohio App. 2d 279, in support of its arguments to the contrary is misplaced since the Ohio Supreme Court in Schump expressly rejected the reasoning of this case. Id. at 151; see also Hillman v. McCaughtrey (1989), 56 Ohio App. 3d 100, 102 (stating Schump "greatly narrowed the scope of dual capacity cases"). - 15 - Finally, Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St. 2d 183, also provides no support for a contrary result and is consistent with this analysis. The Ohio Supreme Court in Guy held as follows: where an employer-hospital occupies a second or dual capacity, as an administering hospital, that confers upon it traditional obligations unrelated to and independent of those imposed upon it as an employer, an employee injured, as a result of a violation of the obligations springing from the employer-hospital's second or dual capacity, is not barred... Id. at syllabus. First, hospitals are enterprises open to the general public to provide medical treatment and access is not limited solely to employees, whereas the supervisory obligations in the case sub judice are alleged only to extend to WSCH employees including decedent. Moreover, the duty of providing diagnostic medical care to an injured employee requires substantial training and expertise and is sufficiently distinct and independent from an employer's duty as employer to the employee. Appellants in the case sub judice have only alleged the existence of supervisory duties extending to employees during the course of their employment. Accordingly, based upon our examination of the record and construing the evidence most strongly in favor of appellants, we conclude the trial court properly granted summary judgment to WSCH on the basis of its immunity as an employer pursuant to R.C. 4123.74. - 16 - B. Co-employees likewise possess constitutional and statutory immunity from common law non-intentional tort liability. Kaiser v. Strall (1983), 5 Ohio St. 3d 91. R.C. 4123.741 governs immunity for fellow employees and provides as follows: 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. (Emphasis added). The pleadings and evidence demonstrate there is no genuine dispute the Supervisors were employed by WSCH on June 23, 1988. Since decedent's death arose within the scope of his employment as discussed above, the trial court properly granted summary judgment in favor of the Supervisors. Even if appellants had properly established the dual capacity doctrine in this context, as a matter of law the dual capacity doctrine does not extend to fellow employees. Jarvis v. Schindler (1984), 20 Ohio App. 3d 227. Accordingly, based upon our examination of the record and construing the evidence most strongly in the favor of appellants, we conclude the trial court properly granted summary judgment in - 17 - favor of the Supervisors pursuant to R.C. 4123.741 as a matter of law. II. Appellants' first assignment of error follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY DENYING THEIR MOTION FOR LEAVE TO FILE THEIR FIRST AMENDED COMPLAINT, INSTANTER WHERE THE FACTS JUSTIFIED SUCH AN AMENDMENT AND WHERE SUCH AMENDMENT WOULD NOT RESULT IN PREJUDICE TO DEFENDANTS-APPELLEES. Appellants' first assignment of error is without merit. Appellants filed a motion for leave to file an amended complaint, followed by a supplemental motion, to specifically plead the "dual capacity" exception to appellees' statutory immunity based on the evidentiary materials presented in their opposition to summary judgment. Paragraph 21 of the Amended Complaint states in the new sixth count as follows: At the time of the decedent Marvin Dale Smith's death by drowning, if said decedent was an employee of Defendant WSCH, then each Defendant had assumed a relationship to decedent independent and unrelated to their employment relationship with Marvin Dale Smith, and a role other than that of employer, i.e. among other things, that of supervisor, in loco parentis or lifeguard, and at the same time said Defendants owed two different obligations to decedent. Civ. R. 15 provides leave to file an amended complaint should be granted where the movant makes a prima facie showing in - 18 - support of the allegations set forth in the amendment, no prejudice to the opposing party results, and justice so requires. Wilmington Steel v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St. 3d 120 (approving Solowitch v. Bennett (1982), 8 Ohio App. 3d 115); Fish v. Coffey (1986), 33 Ohio App. 3d 129, 132. Appellants maintain the amended complaint was necessary to raise the issue of dual capacity despite their prior motions discussing the issue based on Freese v. Consolidated Rail Corp. (1983), 4 Ohio St. 3d 5: [I]n order for the dual capacity doctrine to apply, there must be an allegation and showing that the employer occupied two independent and unrelated relationships with the employee, that at the time of these roles of the employer there were occasioned two different obligations to this employee, and that the employer had during such time assumed a role other than that of employer (Emphasis added). We agree, however, based on our discussion above, appellants did not make a sufficient allegation or showing concerning the dual capacity since there is no evidence appellees ever assumed any sufficiently independent duty to the general public. Moreover, the dual capacity doctrine does not apply to appellants claims against the Supervisors as a matter of law. Jarvis v. Schindler, supra. We note that even if appellants had made the necessary showing concerning WSCH in the case sub judice, error, if any, resulting from the failure to grant leave to file the amended - 19 - complaint was harmless and did not prejudice appellants since the evidence used to support the proffered amendment demonstrated the claim was untenable. Zan v. Kandus (Jan. 19, 1989), Cuyahoga App. No. 54718, unreported; DiPaolo v. DeVictor (1988), 51 Ohio App. 3d 166, 170. Accordingly, appellants' first assignment of error is without merit and is overruled. III. Appellants' third assignment of error follows: THE TRIAL COURT ERRED TO THE PREJUDICE TO (SIC.) PLAINTIFFS-APPELLANTS BY GRANTING DEFENDANT-APPELLEES' MOTION FOR PROTECTIVE ORDER LIMITING DISCOVERY TO THE ISSUE OF WHETHER THE DECEASED MINOR WAS AN EMPLOYEE AT THE TIME OF HIS DEATH BY DROWNING, THUS PREJUDICING PLAINTIFFS-APPELLANTS' ABILITY TO OBTAIN EVIDENCE IN OPPOSITION TO DEFENDANTS- APPELLEES' MOTION FOR SUMMARY JUDGMENT. Appellants' third assignment of error is without merit. The trial court order granting appellees' motion to limit discovery provides in pertinent part as follows: Motion to limit discovery filed ... by defendant is granted. Plaintiff is limited to the issue of the workers' compensation immunity defense. Appellants argue this order, and the trial court's subsequent denial of their motion to compel discovery, improperly restricted discovery and prevented them from obtaining information necessary to oppose appellees' motion for summary judgment and establish appellees' dual capacity. - 20 - Appellants specifically argue appellees improperly employed the order to prevent appellee Medina from testifying at a deposition (1) concerning the assumption by appellees Medina and Peeple of a duty as lifeguard, and in interrogatories directed to WSCH and Maxwell concerning (2) their knowledge of the "criminal and/or juvenile delinquency problems" of the other minor who drowned with decedent and (3) Peeple's criminal history, prior "mental and/or emotional problems" and related medical history, and the circumstances of Peeple's death. We are sensitive to claims that a party has been improperly denied a sufficient opportunity to conduct relevant discovery. However, this Court will not overturn the grant of a protective order pursuant to Civ. R. 26(C) absent demonstration of an abuse of discretion by the trial court adversely affecting the substantial rights of a party. Huntington Nat'l. Bank v. Stanfield (May 17, 1990), Cuyahoga App. No. 56992; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App. 3d 78, 86. Appellants have not offered any evidence the trial court abused its discretion. The trial court orders in the case sub judice properly limited discovery to appellees' respective immunity defenses since the workers' compensation system provides an employee's exclusive remedy for nonintentional torts when the immunity defenses apply. See Bridges v. Nat'l Engineering, supra (affirming dismissal of tort action barred by employer's - 21 - immunity). Establishing negligence is not necessary to recover under the workers' compensation system and becomes relevant under the dual capacity doctrine only when the immunity defenses become inoperable. Accordingly, the trial court could properly determine unlimited discovery was pointless and burdensome. Stegawski, supra at 86. Our review of the depositions and interrogatories indicates the discovery was directed toward establishing negligence rather than appellees' dual capacity. Appellants' counsel recognized as much at the time of the deposition, stating "the questions I'm going to be asking are still directed towards the negligence aspect of this to make a record." None of the questions sought information to establish the existence of appellees' duty to persons other than employees necessary to establish a dual capacity even if the doctrine applied in the context of employer-sponsored recreational activities. Accordingly, appellants were not improperly denied the opportunity to conduct any relevant discovery. See, Bell v. Hilton Hotels (1972), 32 Ohio App. 2d 293. Appellants' third assignment of error is not well taken and overruled. IV. Appellants' fourth assignment of error is related to the third and follows: - 22 - THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY DENYING PLAINTIFFS- APPELLANTS' MOTION FOR ORDER DIRECTING ST. VINCENT CHARITY HOSPITAL TO RELEASE MEDICAL RECORDS OF DEFENDANT REGINALD PEEPLE WHERE SAID DEFENDANT HAD COMMITTED SUICIDE PENDING TRIAL OF THE INSTANT ACTION AND WHERE SAID RECORDS WERE RELEVANT TO THE ISSUES PRESENTED. Appellants' fourth assignment of error is without merit. After appellee Peeple committed suicide, appellants filed a motion for an order directing Saint Vincent Charity Hospital to release Peeple's medical records consisting of approximately eight visits over a period of more than two years. Appellants contend the Pensock Report indicates Peeple's admitted his negligence and contemplated suicide as a result of decedent's death. Appellants argue the records became critical after Peeple's committed suicide to establish whether appellees negligently placed decedent in the care of an emotionally unstable person and that any privilege against disclosure of the medical records became inoperative upon the death of Peeple. Appellants have failed to cite any authority to support their contentions. The reasons for rejecting appellants' third assignment of error apply with equal force in the context of the requested medical records since appellants made no showing of relevance or necessity to overcome appellees' respective immunity defenses. Error, if any, was harmless since appellants - 23 - failed to demonstrate appellees acted in a dual capacity and the issue of any statutory physician-patient privilege concerning Peeple's medical records is not relevant to appellees' immunity defenses. Moreover, appellants have failed to demonstrate the trial court abused its discretion by denying the motion to compel production of Peeple's medical records. The trial court had discretion to deny the motion since appellants failed to serve the executor of Peeple's estate with the motion or seek to subpoena the records from the executor or the hospital. Accordingly, appellants' fourth assignment of error is not well taken and overruled. V. Appellants' fifth assignment of error follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY DENYING THEIR MOTION FOR MOTION (SIC.) FOR RECONSIDERATION. Appellants' fifth assignment of error is without merit. Appellants filed a motion with the trial court to reconsider the trial court's order granting summary judgment in favor of appellees on the first three claims based on their respective immunity defenses. The trial court thereafter journalized the following order: Motion to reconsider filed... by Plaintiff is granted. After having reconsidered, this Court stands by its original ruling. Final. (Emphasis in original). - 24 - The trial court properly rendered summary judgment in favor of appellees as discussed in Section I. Since appellants did not present sufficient evidence to support their dual capacity claims or demonstrate summary judgment was unwarranted, the trial court properly refused, upon reconsideration, to depart from its prior determination granting summary judgment to appellees. Accordingly, appellants' fifth assignment of error is without merit and is overruled. Judgment accordingly. - 25 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. SPELLACY, J., CONCURS SARA J. HARPER, J., DISSENTS (See Dissenting Opinion attached). CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59306 : WANDA SMITH, ET AL. : : : Plaintiff-Appellants : : DISSENTING -vs- : : OPINION WEST SIDE COMMUNITY HOUSE, ET AL. : : : Defendant-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1991 HARPER, J., DISSENTING: I respectfully dissent from the majority's resolution of this case. Specifically, I find that the granting of summary judgment against appellants was improper and that the action, therefore, required reversal and remand for trial. Moreover, the trial court's discovery rulings prejudicially denied appellants the rightful opportunity to develop their case, ultimately expediting the trial court's error. Initially, a brief review of the workers' compensation structure is necessary as a reminder of its purpose. The disposition of the within action apparently occurred without any consideration of the structure's purpose. - 2 - Workers' compensation was developed as a risk reduction mechanism which benefits both the employer and employee. An employee's right to common law remedies is exchanged for a greater assurance of recovery through a no-fault system. The employer is shielded from unlimited liability by abandoning its right to common law defenses. The Ohio Supreme Court articulated the motivating policy consideration as follows: "[T]he theory upon which the compensation law is based... is that each time an employee is killed or injured there is an economic loss which must be made up or compensated in some way, that most accidents are attributable to the inherent risk of employment -- that is, no one is directly at fault -- that the burden of this economic loss should be borne by the industry rather than society as a whole, that a fund should be provided by the industry from which a fixed sum should be set apart as every accident occurs to compensate the person injured, or his dependents, for his or their law." State ex rel. Munding v. Indus. Comm. (1915), 92 Ohio St. 434. The system thereby has a dual purpose. First, an employee who receives compensation is prevented from bringing an action against his employer. Second, its existence reduces the cost of work place safety. See, W. Dodd, Administration of Workmen's Compensation (1936), 26. Legislatures, viewing industrial accidents as a cost of production, with the industry and its consumers bearing the burden, enacted workers' compensation laws. Exclusivity Provisions of Workers' Compensation Statutes: Will the Dual Injury Principle Crack the Wall of Employer Immunity? (1986), 55 U. Cin. L. Rev. 549, 551. As the party exerting - 3 - control over work place hazards and the spreading of costs of safety to consumers, employers assumed responsibility for accident costs. Id. Employers thereby gain incentive to implement safety measures in order to reduce costs. Id. Immunity is rewarded to employers who assume such a responsibility under the workers' compensation laws. Id. However, the quid pro quo which was in existence at the time of the statutes' enactments is subject to change. Judicial exceptions developed as a workers' common law rights increased in value. These exceptions avoided the exclusive remedy provisions of the compensation statutes. In the case sub judice, appellant seeks to circumvent the exclusive remedy afforded by the workers' compensation statutes by invoking an exception which was taken too lightly by the majority. A. The majority determined that the trial court properly concluded there was no genuine issue of material fact concerning the applicability and scope of WSCH's immunity defense. The majority relied on the "express" terms of decedent's employment contract which required his attendance and participation in recreational activities sponsored and supervised by WSCH. They thus concluded that decedent's participation in the event was compulsory under his employment contract and that his death - 4 - thereby occurred in the scope of his employment. This conclusion failed to take into account an important circumstance which leads me to question the majority's logic. I acknowledge that decedent's contract set out that he was to participate in social and recreational activity related to the Youth Employment Project. If so, why did WSCH require the procurement of parental consent by youths attending such events as the one in question. There was no evidence that the youths' employment would be terminated or that they would be sanctioned if they failed to gain permission from their parents. If the youths' participation in these activities was compulsory, would not termination or some sanction result from a failure to comply with the employment contract. I, therefore, question whether the outings for which the decedent needed permission from his parents to attend, fell under the contract's provision. If not, decedent was not in the scope of his employment at the time of his death. The presence of this material issue of fact alone necessitated a trial. B. The majority proceeded to find that the appellants could not invoke the dual capacity doctrine because they failed to demonstrate WSCH assumed any capacity sufficiently distinct and independent from that as decedent's employer. The majority - 5 - primarily relies on the case of Schump v. Firestone Tire & Rubber Co. (1989), 44 Ohio St. 3d 148, in reaching this conclusion. In Schump, the court did state but did not hold that whether an employer owes a duty to the general public is a factor in determining if an employee can invoke the dual capacity doctrine. However, Schump and those cases cited by Schump, Simpkins v. Delco Moraine Div. (1981), 3 Ohio App. 3d 275, and Knous v. Ridge Machine Co. (1979), 64 Ohio App. 2d 251, dealt with an employee invoking the dual capacity doctrine where his claim is based on a product's liability theory. The court then held that: "*** where an employer manufactures a product for public sale and for its own use, and an employee is injured while using the product within the scope of his employment, the employee may not maintain a products liability action against his employer under the dual- capacity doctrine." Products liability is a broad descriptive term which is applied to a type of action brought to recover for injuries sustained by the use of a product. See, Liberty Mut. Ins. Co. v. Hercules Powder Co. (C.A. Del. 1955), 224 F.2d 293. A person who directly purchases a defective product from a defendant or from a third party may maintain a products liability action based on a theory of strict liability. Suvada, et al. v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182. If injuries result from a defect, an immediate purchaser may sue in negligence. Bock v. Truck & Tractor (1943), 18 Wash. 2d 458, 139 P.2d 706. The liability is founded on the assumption of the special - 6 - responsibility for public safety by businesses which supply products and the public's reliance on those suppliers. Bailey v. Montgomery Ward & Co. (1967), 6 Ariz. App. 213, 431 P.2d 108. Here, the appellant's cause of action was not based on a theory of products liability. The majority's requirement that WSCH assume some duty owed to the general public before appellants could sufficiently invoke the dual capacity is not supported by the unique circumstances of this case. The general public is inherently involved in products liability cases. A supplier assumes the responsibility for public safety./5\ WSCH does not assume the same responsibility. The majority's analysis in which it found that WSCH owed no duty to the general public and, therefore, did not assume any capacity sufficiently distinct and independent from that as decedent's employer, falls far short of the mandated analysis. Contrary to the majority's focus on the "general public" requirement, the court in Schump, supra, accepted the following view expressed in Weber v. Armco (1983), 663 P.2d 1221, 1226- 1227. "'*** The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first, but whether the second function generates obligations /5\ Hospitals also share the characteristic of providing for the general public's health and are naturally subject to the "general public" requirement in dual capacity doctrine analyses. - 7 - unrelated to those flowing from that of employer. This means that the employer must step outside the boundaries of the employer-employee relationship, creating separate and distinct duties to the employee; the fact of injury must be incidental to the employment relationship." Schump, supra, 152. There is no "general public" requirement therein. Although the majority noted this "decisive dual- capacity test", it failed to utilize it in determining whether there remained a genuine issue of material fact as to the application of the dual capacity doctrine. Each case must be analyzed on its own merits. Knous, supra, 225. Each factual situation must, therefore, encompass certain policy considerations./6\ /6\ In reference to cases where an employee invokes the dual capacity doctrine against an employer/landowner: "'It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structural work acts.'" 2A Larson, Workmen's Compensation (1982), Section 72.82 cites in Sharp v. Gallagher (1983), 95 Ill. 2d 322, 447 N.E. 2d 786. See, also Bingham, supra. "The explanation given by Larson for the aforementioned rule is a pragmatic one. An employer will almost always own or occupy business premises, and if each obligation related to the employer's status as landholder could give rise to a tort suit, in addition to workers' compensation remedies, 'the concept of exclusiveness of remedy would be reduced to a shambles.' Larson, supra." Hillman v. McCaughtrey (1989), 56 Ohio App. 3d 100, 102. - 8 - Recreational injuries are distinct in that the causal connection between the recreational event and employment is tenuous. Wambaugh: Recreational Injuries: Ohio Employers' Dilemma Resolved? (1988), 16 N.Ky. L. Rev. 593. In Kohlmayer v. Keller (1970), 24 Ohio St. 2d 10, the Ohio Supreme Court determined that an employee on a company picnic was injured in the course of his employment. The company picnic was not seen as a mere gathering of friends but was rather an outing for the purpose of improving employee relations. The picnic which was given primarily as a business function created a substantial connection between the activity and employment. The Kohlmayer court suggested that the following business- related benefits flowed from such company activities: "Improved employee relationships which can, and usually do, result from the association of employees in a recreational setting produce a more harmonious working atmosphere. Better service and greater interest in the job on the part of the employees are its outgrowths. The expense of the picnic may furnish the basis for an income tax deduction as a business expense. Tangible business benefits are even more likely to be realized where, as here, a small business is involved." Id. I fail to recognize how benefits to the employer which appear to have as an end result an increase in the employer's profits, are applicable to a social service mission of the United Church of Christ. I doubt with utmost sincerity that the Kohlmayer court intended to include in its progeny a case where youths repaired windows for the elderly in a mission's - 9 - weatherization program. The majority's attachment of their harmonious environment reason to the Lake Erie outing is appalling to me as it means that the mission's intended purpose was to enhance business profits. I also fail to recognize how one of the traditional purposes of workers' compensation laws, the reduction of work place safety costs, applies to a social service mission which took a child to a lake on a less than sun- filled day for whatever reason. As I stated earlier, WSCH's policy of requesting permission from a youth's parents prior to taking that youth on an outing created a genuine issue of material fact as to whether the decedent was injured in the course of employment. I likewise find that this policy created a genuine issue of material fact as to whether WSCH assumed an obligation unrelated to those flowing from that of an employer. I am plagued with doubt about the purpose behind WSCH's policy. Do parents who sign permission slips for their children to accompany an adult, assume that the child will receive adequate supervision from that adult? The answer cannot be in the negative. Decedent's mother was given a permission slip for the June 23rd outing which was not filled out as to the location of the outing. She assumed that this outing was similar to an earlier one when a picnic was held at a church. She, therefore, signed - 10 - the permission slip. She claims that she never would have signed it had she known it was for a swimming trip to Edgewater Park. The lifeguard on duty on June 23rd at Edgewater Park, in her deposition, described the conditions of the water that day. It was cold, windy, and overcast. There were few swimmers on the beach. The waves were from three to five feet high. Three- fourths of the swimming area was closed off at 11:00 a.m. due to the conditions. The lifeguard testified that she had a view of the entire area in which swimming was permitted from 11:00 a.m. to 1:00 p.m. Peeple and the youths were not seen by her in the permitted swimming area. Peeple discovered the two missing youths at approximately 12:30 p.m. However, it was not until 4:00 p.m. that he reported them missing to Ranger Pensock. Even then he claimed that they were not in the water but that they were "up to no good." Although Pensock then instructed Medina to call the missing youths' parents, Mrs. Smith was unaware of her child's disappearance until her husband went to pick him up from work at WSCH at 6:00 p.m. The crux of Mrs. Smith's argument is that the "dangers of going swimming in Lake Erie on a cold, windy day with waves up to four feet would clearly not be present under Marvin's [the decedent's] normal working conditions, and it was his parents' responsibility to decide whether [he] could go swimming under - 11 - these circumstances." The taking of the decedent to the park by the WSCH supervisors resulted in the assumption of duties which were not a part of the decedent's employment. "His death occurred not as a result of the employment relationship, but rather as a result of the negligent performance of the additional duties assumed by Appellees." The majority improperly concluded that the trial court properly granted summary judgment to WSCH on the basis of its immunity as an employer pursuant to 4123.74. As the Ohio Supreme Court stated in Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1, "Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. (Emphasis added; citations omitted.)" I, in contrast to the majority, do not find that reasonable minds can reach only one conclusion which is adverse to the appellants on the issue of dual capacity. C. The majority expressly found that the dual capacity doctrine does not extend to fellow employees as a matter of law. The majority cited Jarvis v. Schindler (1984), 20 Ohio App. 3d 227, in support of this finding. - 12 - R.C. 4123.741 does provide immunity for fellow employees. The section thus 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." (Emphasis added.) A fellow employee is immune from common law non-intentional tort liability provided one condition is met. The injury, occupational disease, or death must be compensable under the workers' compensation statute. The Summit County Court of Appeals in Jarvis, followed by reason of stare decisis the decision it rendered in Watson v. Sycz (Mar. 9, 1983), Summit App. No. 10885, unreported. In Watson, the plaintiff sued her fellow employee directly rather than her employer. She invoked the dual capacity doctrine when she was receiving workers' compensation. The necessary condition set out in R.C. 4123.741 was already met so that the defendant was provided immunity. The Jarvis decision fails to address the fact of whether Jarvis was receiving workers' compensation when he sought to invoke the dual capacity doctrine against his fellow employee. - 13 - In the case sub judice, the issue of whether workers' compensation is appellants' exclusive remedy is part of this appeal. The majority's statement that "[e]ven if appellants had properly established the dual capacity doctrine in this context, as a matter of law the dual capacity doctrine does not extend to fellow employees" is an incorrect interpretation of R.C. 4123.741. Fellow employees are only immune from liability if the injured employee is compensated under the statute. If the dual capacity doctrine is established, the injured employee is not compensated under the statute and the fellow employee is no longer immune from liability. In virtue of my opinion as to there being genuine issues of material fact as to whether worker's compensation is appellants' exclusive remedy, I disagree with the majority's position that the trial court properly granted summary judgment in favor of the supervisors pursuant to R.C. 4123.741 as a matter of law. I also disagree with the majority's final determination that the trial court properly denied appellant's motion for recon- sideration. II. Appellees, in their answer, defended on the basis of the workers' compensation defense. Mrs. Smith on September 11, 1989, sought to file an amended complaint on September 11, 1989, which contained an allegation that the workers' compensation defense - 14 - did not bar her recovery since the appellees were acting in a dual capacity on June 23, 1988. The dual capacity doctrine is an exception to the applicability of the workers' compensation immunity to tort liability when an employee is injured in the course of his employment. Civ. R. 15(A) provides in pertinent part: "*** a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires." The decision whether to grant or deny a motion to amend a complaint made pursuant to Civ. R. 15(A) is within the discretion of the trial court. Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 175. A trial court, however, abuses its discretion when it denies a motion to amend and there is no articulable reason for doing so. Id., paragraph six of the syllabus; Solowitch v. Bennett (1982), 8 Ohio App. 2d 115; Maddox v. Brentwood Hospital, et al. (Mar. 21, 1991), Cuyahoga App. No. 58239, unreported. In the case sub judice, Mrs. Smith filed her original complaint on April 11, 1989. Her motion for leave to file the amended complaint was filed on September 11, 1989, and the motion was supplemented on November 9, 1989. The case had yet to be set for trial. Mrs. Smith was not seeking to remedy an oversight or omission in the amended complaint. She responded to appellees' - 15 - defense of workers' compensation. It is uncontested that WSCH was in full compliance with the workers' compensation statutes at the time of the drowning. "Therefore, the appellant's exclusive remedy would be *** workers' compensation benefits unless it was specifically alleged *** that *** the employer had occupied a 'dual capacity' to the employee at the time of the accident." Freese v. Consolidated Rail Corp. (1983), 4 Ohio St. 3d 5, 7-8 (emphasis added). Absent Mrs. Smith's "specific allegation" of the dual capacity doctrine, she was limited to workers' compensation benefits. Her attempt to allege the doctrine, however, was foreclosed by the denial of her motion to amend the complaint. Mrs. Smith must also demonstrate that she sought to amend her complaint in good faith. There must be a prima facie showing that she can submit support for the new matters sought to be pleaded, and that she did not simply seek a delay. The appellees could not likewise have been prejudiced by the allowance of the amended complaint. Nothing in the record indicates that Mrs. Smith sought to amend her complaint in bad faith. There is also no indication that appellees would have been prejudiced by such amendment. The trial court, therefore, abused its discretion in denying Mrs. Smith's motion to amend her complaint. III. - 16 - Appellees filed a motion for a protective order on August 4, 1989, aimed at limiting discovery to the issue of whether the decedent was an employee of WSCH at the time of his death. The trial court granted the motion on September 2, 1989. Mrs. Smith asserts that she was thus prevented from fully developing testimony concerning the dual capacity doctrine. Moreover, Mrs. Smith requested a court order which directed St. Vincent Charity Hospital to release medical records of Reginald Peeple. Peeple committed suicide in July, 1989. The trial court refused to grant the request. Mrs. Smith requested the order based on the following facts. Ranger Pensock was assigned to investigate the death of the decedent. As part of the investigation, Pensock interviewed Peeple. In his subsequent report, Pensock stated that Peeple blamed himself for the disappearance of the boys. He was crying and very upset. Pensock, believing that Peeple was suicidal based on certain comments made by Peeple, prompted him to suggest that Peeple be taken to a hospital. Peeple was admitted to St. Vincent Charity Hospital on June 26, 1988. Mrs. Smith asserts that the "suggestion of suicide by Peeple in connection with the death of Appellant's decedent and his own admission of liability suggest a consciousness of negligence on his part." Furthermore, she asserts that she "had a right to determine if Appellee West Side Community House placed her child - 17 - in the sole care of an emotionally unstable person just prior to the decedent's death." Ohio policy favors the fullest opportunity to complete discovery. Rossman v. Rossman (1975), 47 Ohio App. 2d 103, 110. The trial court has discretion in controlling the discovery process. State, ex rel. Daggett v. Gessaman (1973), 34 Ohio St. 2d 55. An appellate court will reverse the decision of a trial court that extinguishes a party's right to discovery if the trial court's decision is improvident and affects the discovering party's substantial rights. Rossman, supra. "The liberal discovery philosophy embodied in the Ohio Civil Rules is to be balanced with Civ. R. 26(C) which vests the trial court with authority to limit pretrial discovery in order to prevent an abuse of the discovery process." Doe v. Univ. of Cincinnati (1988), 42 Ohio App. 3d 227, 231. The trial court may limit discovery to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Id. In the within action, the trial court literally cut off Mrs. Smith's opportunity to conduct discovery. Depositions of individual appellees took place, so there is no "burden or expense." Mrs. Smith was attempting to compile enough information to withstand appellees' motion for summary judgment but was incapable of doing so due to the court's order. The trial court's erroneous denial of appellants' right to amend her - 18 - complaint snowballed into an erroneous denial of other rights. Mrs. Smith's substantial rights to discovery were thereby handcuffed by the court's granting of appellees' motion for protective order. An employee's accidental injury or death is compensable in Ohio where "arising out of and in the course of employment" regardless of fault. "A determination of work relatedness, not the degree of fault of the employer or employee, is critical to a claim of workmens' compensation." A. Larson, The Law of Workmens' Comp. 2.10 (1985). Compensation is triggered when a sufficient nexus exists between the injury and the employment. Beauchesne v. David London & Co. (1977), 118 R.I. 651, 375 A.2d 920. The majority's finding that a sixteen-year-old boy's drowning during an outing at Lake Erie where his employer, a social service mission requested parental permission to take the boy is not so neatly wrapped as an incident "in the course of employment". The unique circumstances of this case call out for trial, and I therefore, strongly dissent from the outcome of this appeal. .