COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60325, 60388 JOYCE TROTTER : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ADMINISTRATOR, OHIO BUREAU OF : WORKERS' COMPENSATION : : and : : EUCLID MANOR NURSING HOME : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 175,108 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JANET McCAMLEY Attorney at Law 55 Public Square, Suite 1808 Cleveland, Ohio 44113 For defendant-appellant ANTHONY J. CELEBREZZE, JR. Administrator : Attorney General of Ohio JEROME C. WEBBS, Assistant 615 West Superior Avenue State Office Building 12th Floor (Cont.) Cleveland, Ohio 44113-1899 - 1 - (Cont.) For defendant-appellant TIMOTHY A. MARCOVY Euclid Manor Nursing Attorney at Law Home : 700 Western Reserve Building 1468 West Ninth Street Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, J.: Defendants-appellants, Euclid Manor Nursing Home (herein- after "Euclid Manor") and the Administrator of Ohio Bureau of Workers' Compensation (hereinafter "the Administrator") appeal the judgment of the common pleas court which granted plaintiff- appellee Joyce Trotter's motion for a directed verdict. For the reasons set forth below, we affirm the judgment of the common pleas court. Appellee filed an application for Workers' Compensation benefits on December 29, 1987 due to injuries she sustained while on an unpaid lunch break at her employer, Euclid Manor. An adminis-trative hearing was held on May 9, 1988 wherein the District Hearing Officer allowed appellee's claim. The Cleveland Regional Board of Review, however, disallowed appellee's claim, finding her injury outside the scope of employment. The Industrial Commission of Ohio affirmed, and appellee appealed to the court of common pleas. A trial was held on May 3, 1990 wherein both parties pre- sented evidence. At the close of all evidence, the trial court granted appellee's motion for directed verdict. Appellant's renewed motion for a directed verdict and motions for judgment - 2 - notwithstanding the verdict and for a new trial were overruled. The trial court also granted appellee's motion for attorney fees. Appellee, a nurse's aid at Euclid Manor, testified at trial that on December 15, 1987, at 11:09 a.m., she and Rosyln King were going to lunch during an unpaid lunch break. Appellee and Rosyln left the building wherein they worked and proceeded down a paved walkway which leads to a parking lot which, then, leads to Rudwick Road. Soon after leaving the building, Rosyln noticed that she had forgotten her purse. Appellee and Rosyln proceeded back to the building. Just before re-entering the building, appellee stopped to wipe some ice off her feet on the grass bordering the walkway. She stepped to the side, but slipped and fell down a steep, grassy hill bordering the walkway. As a result, she suffered a fractured right ankle. Although all employees at Euclid Manor had the option of eat-ing a free meal at the nursing home, appellee testified almost everyone went out for lunch. Appellee stated it was fairly common for other employees to walk down the hill in question as a short cut to Rudwick Road instead of using the paved walkway which even-tually leads to Rudwick Road. Appellee further stated she was never given any warnings or instructions on using the hill as a short cut, nor was she ever told not to use the hill as a short cut. Furthermore, appellee testified she never saw a sign posted over the time clock warning the employees not to use the hill as a short cut. - 3 - Rosyln King's trial testimony substantially corroborated appellee's, although Ms. King stated they went into the building to get her purse and, after coming back out, appellee stopped to wipe her feet when she fell. Carolyn Price, director of nursing at Euclid Manor at the time of the incident, testified that all members of the nursing staff were told not to use the hill as a short cut. She had given these instructions after a patient had been injured while walking down the instant hill. She further testified that she posted a sign on the time clock the day before the incident in question stating that the hill had claimed another victim and that employees should not use the hill as a short cut. Darphine Curry, a nurse's assistant, testified that she observed appellee and Rosyln King walk down the paved walkway, pause for a moment, then walk down the grassy hill in question. Ms. Curry stated that just before they reached Rudwick, appellee slipped and fell. Finally, Sister Priscilla Saxton testified to having observed skid marks halfway down the hill from where appel-lee had fallen to the base of the sidewalk parallel to Rudwick Road. Based on the above evidence, the trial court granted appel- lee's motion for a directed verdict. Euclid Manor timely appeals raising four assignments of error for our review, while the Administrator raises one assignment of error. - 4 - Euclid Manor's first and second assignments of error chal- lenge the trial court's rulings on each parties' motion for a directed verdict. The Administrator's sole assignment of error also contests the trial court's granting of appellee's motion for directed verdict. As such, they will be considered jointly. Euclid Manor's first and second assignments of error state: I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT EUCLID MANOR NURSING HOME, WHEN IT OVERRULED AND DENIED DEFENDANTS' MOTIONS FOR DIRECTED VERDICT, MADE AT THE CLOSE OF THE PLAINTIFF'S CASE IN CHIEF; WHICH MOTIONS WERE RENEWED AFTER THE CLOSE OF ALL OF THE EVIDENCE. II. THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT EUCLID MANOR NURSING HOME, WHEN IT GRANTED PLAINTIFF'S MOTION FOR A DIRECTED VERDICT. The Administrator's sole assignment of error states: THE COURT OF COMMON PLEAS ERRED IN GRANTING APPELLEE'S MOTION FOR DIRECTED VERDICT IN THAT APPELLANT'S CASE PRESENTED A QUESTION FOR THE JURY CONCERNING WHETHER APPELLEE'S CONDUCT TOOK HER OUT OF THE COURSE OF HER EMPLOYMENT. A trial court may grant a motion for a directed verdict only when, "after construing the evidence most strongly in favor of the party against whom the motion is directed, the court finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party . . .." Ohio R. Civ. P. 50(A)(4); see, Strother v. Hutchinson (1981), 67 Ohio St. 2d 282. In making this determination, the court is not to weigh the - 5 - evidence or judge credibility but is "to determine whether there exists any evidence of substantial probative value in support of that party's claim." Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66. To be compensable, appellee's injury must occur "in the course of, and rising out of," her employment. R.C. 4123.01(C). Recent-ly, the Ohio Supreme Court, in Fisher v. Mayfield (1990), 49 Ohio St. 3d 275, at 277, expressly recognized the conjunctive nature of the coverage formula. The "in the course of" prong is construed to relate to the time, place and circumstances of the injury, while the "arising out of" prong is interpreted as referring to a causal connection between the employment and the injury. Id. In determining a causal connection, the Supreme Court has articulated the following test: Whether there is a sufficient "causal connec- tion" between an employee's injury and his employment to justify the right to participate in the Workers' Compensation Fund depends on the totality of the facts and circumstances surrounding the accident, including: (1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the acci-dent, and (3) the benefit the employer re-ceived from the injured employee's presence at the scene of the accident. Fisher, supra, at 277, quoting from Lord v. Daugherty (1981), 66 Ohio St. 2d 441, syllabus. - 6 - In Fisher, supra, the plaintiff therein, while acting as a coordinator of a flower fund of which the defendant school board was aware and acquiesced in, was visiting another school within the school district, fifteen minutes from the school where she taught, when she slipped and fell on a step, thereby sustaining injuries. The Supreme Court held the plaintiff had sufficiently demonstrated that her injury was "in the course of" her employment and that the plaintiff had shown a sufficient causal connection between the injury and her employment to warrant the conclusion that the injury arose out of her employment. With respect to the first factor of the test enunciated in Lord, the court concluded that since the employee was injured on her employer's premises, she thereby satisfied this factor. Fisher, supra, at 279. Next, the court noted, with respect to the second factor of the Lord test, the amount of control the employer had over the situs of the injury, and not the degree of control the employer had regarding the actions of its employees, is the proper subject of scrutiny. Id. The court determined the degree of control the school board maintained over the steps was at its apex. Finally, with respect to the third factor of Lord, the court explored the benefits re-ceived to the employer when sponsoring purely social events such as the flower fund. These included a more harmonious working atmosphere, better job service and greater job interest as well as the heightened morale which naturally flowed from the flower fund. Consequently, the - 7 - plaintiff in Fisher satisfied all three factors of the Lord test. In the present case, with respect to Euclid Manor's second, and the Administrator's sole, assignment of error, in construing the evidence most strongly in appellant's favor, we conclude the appellee has satisfied all three factors of the Lord test. Therefore, the trial court did not err in granting appellee's motion for a directed verdict. It is undisputed that appellee was injured on her employer's premises. Thus, appellee has satisfied the first factor of the Lord test. Fisher, supra, at 279. Moreover, it is undisputed that Euclid Manor had complete control over its premises. Thus, the second factor of the Lord test is satisfied. Finally, the benefit Euclid Manor receives from its employees taking a lunch break is undeniable. These benefits include increased employee efficiency and better job service. Appellants, citing to Hill v. General Metal Heat Treating, Inc. (1988), 47 Ohio App. 3d 72, at 74, argue that the employer received no apparent benefit from appellee's presence at the place where she sustained her injuries. Therefore, appellants contend, she failed to satisfy the third factor of Lord. Howev- er, we find Hill distinguishable inasmuch as the Hill analysis involved an employee who sustained injury one-quarter mile from his place of employment while on a lunch break. The Hill case is consistent with the general rule that an employee's injury is not - 8 - compensable if the employee sustains it while travelling to or from lunch away from the employer's premises. Hill supra, at 73; Eagle v. Indus. Comm. (1945), 146 Ohio St. 1, 3. In the present case, appellee's injury occurred while appellee was still on her employer's premises. Moreover, we reach our conclusion in the present case only after a careful review of controlling precedent, and keeping in mind that workers' compensation statutes must be liberally con- strued in favor of the employee. R.C. 4123.95. Most persuasive is the Ohio Supreme Court's decision in Griffin v. General Motors Corp. (1988), 39 Ohio St. 3d 79. In Griffin, the Supreme Court allowed benefits where the employee slipped and fell on a wet or icy spot while traversing a driveway between the employer's plant and its parking lot. The court therein expressly rejected the argument that the "special hazard or risk" rule, which precludes benefits where the employee encounters a risk which is not dis- tinctive in nature and quantitively greater than the risk common to the public, does not apply where the employee sustains injury while on the employer's premises. Other slip and fall - workers' compensation cases are also persuasive. In Dolby v. General Motors Corp. (1989), 62 Ohio App. 3d 68, the plaintiff/employee, while on a relief break, tripped on a stairway over a conveyor, fell and injured his back. This court reversed and remanded the trial court's summary judgment in favor of the defendant/employer, holding that a - 9 - genuine issue of material fact existed as to whether the employee's injuries were sustained in the course of, and arising out of, his employment. It is note-worthy that the court in Dolby was not presented with the issue of whether a summary judgment would have been proper in the employee's favor. See, also, Kovacina v. Bishop of the Roman Catholic Diocese of Cleveland (Oct. 27, 1988), Cuyahoga App. No. 54478, unreported, wherein this court affirmed the trial court's summary judgment in favor of the employee who slipped and fell on ice as she alighted from her car, which had spun off the employer's driveway; Brunney v. Connor (1982), 7 Ohio App. 3d 246, affirming judgment of the trial court in favor of the employee who slipped and fell while jumping over a puddle of water encountered on a cross-walk between the employer's parking lot and bindery facility. Additionally, appellants rely on this court's decision in Primiano v. Ohio Bell Telephone Co. (Apr. 24, 1986), Cuyahoga App. No. 50495, unreported. However, Primiano can be distin- guished from the instant case. In Primiano, this court reversed and remanded a summary judgment in favor of the plaintiff/employee, holding that the record did not reflect whether the employer had any right to control the plaza where the plaintiff fell over a bench. Moreover, this court noted plaintiff's employment in a downtown office build-ing apparently created no greater risk that he would trip over the bench than the risk possessed by the general public. In the present case, - 10 - appellee slipped and fell on Euclid Manor's premises, and Euclid Manor's control over its own premises cannot be dis-puted. Finally, citing to Georgejakakis v. Wheeling Steel Corp. (1949), 151 Ohio St. 458, appellants argue that appellee deviated from her course of employment by attempting to walk down the hill in question. Moreover, appellants argue appellee was warned not to use the hill as a short cut to Rudwick Road. However, it is well settled that the test of the right to participate in the Workers' Compensation Fund is not whether there is any fault or neglect on the part of the employer or his employee, but whether a "causal connection" exists 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. Thus, arguably, Georgejakakis has little to no controlling, precedential validity. Therefore, in light of Griffin, supra, and Fisher, supra, we hold the trial court did not err in sustaining appellee's motion for a directed verdict. Accordingly, Euclid Manor's second, and the Administrator's sole, assignment of error is overruled. Moreover, in construing the evidence most favorably for appel-lee, the trial court did not err in overruling appellants' motion for a directed verdict. Accordingly, Euclid Manor's first assign-ment of error is not well taken. Euclid Manor's third assignment of error is as follows: THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT EUCLID MANOR NURSING HOME, WHEN IT - 11 - OVERRULED AND DENIED DEFENDANTS' MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL. The same test is used for a motion for judgment notwithstand-ing the verdict and a motion for directed verdict. Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App. 3d 181. More-over, the granting of a motion for new trial rests in the sound discretion of the trial court. Highfield v. Christian Academy (1987), 34 Ohio App. 3d 311. A motion for a new trial is appro-priate where the verdict is contrary to law. Civ. R. 59(A)(7). In the present case, we have previously determined that the trial court did not err in denying appellant's motion for a directed verdict. Therefore, in applying the same test, we con- clude the trial court did not err in overruling appellant's motion for judgment notwithstanding the verdict. Additionally, we have previously determined that the trial court's judgment is not con-trary to law. Accordingly, Euclid Manor's third assignment of error is overruled. Euclid Manor's final assignment of error follows. It states: THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT EUCLID MANOR NURSING HOME, WHEN IT GRANTED PLAINTIFF'S MOTION FOR ATTORNEY FEES OVER DEFENDANTS' OBJECTIONS THERETO. Appellant contends the trial court abused its discretion in awarding appellee $1,202.37 for depositions and $2,500 in attorney fees. This argument lacks merit. - 12 - R.C. 4123.519(E) provides: The cost of any legal proceedings authorized by this section, including an attorney's fee to the claimant's attorney to be fixed by the trial judge, based upon the effort expended, in the event the claimant's right to partici- pate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the commission if the commission or the administrator rather than the employer con-tested the right of the claimant to partici-pate in the fund. The attorney's fee shall not exceed twenty-five hundred dollars. The award of attorney fees is mandatory under R.C. 4123.519. Alford v. Republic Steel Corp. (1983), 12 Ohio App. 3d 145. Such award is to be based upon the effort expended by the claimant's attorney. R.C. 4123.519(E). Further, the trial judge is in the best position to determine whether the costs incurred were reason-ably necessary to the preparation for trial. Brooks v. The Brost Foundry Company (May 2, 1991), Cuyahoga App. No. 58065, unreported, at 13. In the present case, appellee filed a written motion to tax as costs her deposition expenses and attorney fees. Appellee's counsel certified that he spent thirty-seven hours preparing for and trying the instant case. Moreover, appellee submitted copies of bills received from the court reporter who transcribed the tes-timony of various witnesses to the present action. Therefore, we cannot say the trial court abused its discretion in granting appel-lee's motion to tax costs and attorney fees. - 13 - Accordingly, Euclid Manor's fourth assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellants her 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 Cuyahoga County Court of Common Pleas 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. DYKE, P.J. JAMES D. SWEENEY, J. CONCUR JUDGE FRANCIS E. SWEENEY 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. .