COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68050 : LINDA BEHARRY : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CLEVELAND CLINIC FOUNDATION, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-263376 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: CHRISTOPHER G. WINCEK, ESQ. DAVID AMMONS, ESQ. KURT M. YOUNG, ESQ. RONALD S. OKADA, ESQ. WINCEK & DEROSA CO., L.P.A. PATRICIA A. POOLE, ESQ. 1500 Standard Building BAKER & HOSTETLER 1370 Ontario Street 3200 National City Center Cleveland, Ohio 44113 1900 East 9th Street Cleveland, Ohio 44114-3485 - 2 - KARPINSKI, J.: Plaintiff-appellant Linda Beharry appeals from an order of the common pleas court granting summary judgment in favor of her former employer defendant-appellee The Cleveland Clinic Foundation (the "Cleveland Clinic") in this workers' compensation action. Plaintiff commenced this workers' compensation administrative appeal case in the common pleas court on December 28, 1993. Her complaint arose out of an incident on April 9, 1992, when she was struck by a hit and run motorist while she was in a cross walk at East 96th Street and Carnegie Avenue. A psychiatric nurse, plaintiff had left her work site in Clinic Building P during an unpaid lunch break and was en route to a personal dermatology appointment in Clinic Building A at the time of the accident. Plaintiff's claim for workers' compensation benefits based on her fractured pelvis was denied during administrative proceedings by the district hearing officer and Cleveland regional board of review. In the appeal to common pleas court, the Cleveland Clinic filed a motion for summary judgment, arguing that plaintiff's injury was not "in the course of, and arising out of" her employment. In her cross-motion for summary judgment and brief in opposition, plaintiff argued that her injury occurred on Clinic premises and was compensable under workers' compensation law. Both parties filed additional briefs. - 3 - The common pleas court granted the Clinic's motion for summary judgment and denied plaintiff's cross-motion for summary judgment based on the undisputed facts in a detailed five-page typewritten judgment entry journalized on September 20, 1994. Plaintiff timely appeals and raises, but does not separately argue, the following three related assignments of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF- APPELLANT'S MOTION FOR SUMMARY JUDGMENT. THE TRIAL COURT ERRED BY FINDING THAT THE PLAINTIFF- APPELLANT IS NOT ENTITLED TO PARTICIPATE IN THE WORKERS' COMPENSATION FUND. THE TRIAL COURT INCORRECTLY APPLIED AND INTERPRETED LORD V. DAUGHERTY (1981), 66 OHIO ST. 2D 441. Plaintiff's three assignments of error lack merit. Plaintiff contends the common pleas court improperly granted the Clinic's motion for summary judgment. Plaintiff argues her injury, as required under R.C. 4123.01(C), was "in the course of, and arising out of" her employment because she was injured on a street patrolled by Clinic security within the Clinic's premises and because she was obtaining health care under the Clinic's employee health care plan. In Brown v. B.P. Am., Inc. (1993), 85 Ohio App.3d 194, this court of appeals summarized the principles governing the "in the course of, and arising out of" requirement under R.C. 4123.01(C). The Brown Court held that a claimant is not entitled to recovery when the injury occurs in a public place outside the employer's premises while the employee is on a personal errand and when the injury does not result from a special hazard created by the - 4 - employer. In the case at bar, no special hazard was created by the employer because, ordinarily, travel on a public roadway exposes an employee to the same risks which the general public faces. Indus. Comm. v. Baker (1993), 127 Ohio St.345. Plaintiff contends that the broader principles enunciated by the Supreme Court in Lord v. Daugherty (1981), 66 Ohio St.2d 441, dictate a contrary result. The syllabus of Lord v. Daugherty provides as follows: Whether there is a sufficient "causal connection" 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 accident, and (3) the benefit the employer received from the employee's presence at the scene of the accident. Plaintiff contends she was injured on the Clinic's premises, the Clinic controlled the scene of the accident, and the Clinic received a benefit from her visit to her physician during her unpaid lunch, which plaintiff describes as a "break for health care." However, based upon our review of the record, plaintiff's claims lack merit, even under this broader test. The record in this case demonstrates that plaintiff was struck by a hit-and-run driver at approximately 2:00 p.m. while she was walking in a crosswalk on a public street to obtain personal medical care during an unpaid lunch break. The medical care she sought was not for any work-related injury. Plaintiff left her work site in Clinic P Building, located at East 90th Street and Carnegie Avenue. She was subsequently struck while - 5 - crossing the intersection of East 96th Street and Carnegie Avenue on her way to a personal dermatology appointment in Clinic Building A. These facts provide an interesting challenge to the limits of the "arising out of employment" requirement. However, this court finds that the "totality of circumstances" do not satisfy this criterion. Proximity Before discussing proximity, it is necessary to consider the type of campus on which the Clinic is located. The Clinic consists of a large rambling set of buildings which traverse and abut major thoroughfares such as Carnegie Avenue and Euclid Avenue. Running through this campus are a number of city streets, such as East 96th St. The clinic is not a self- contained entity surrounded by a fortress and draw bridge with limited points of access. Nor is it a high rise building with various businesses sharing a common lobby. Finally, it is not even like a mall, which has a variety of tenants sharing a common area. It is a set of buildings on land which regularly intersects and borders with public streets. For autos and especially for pedestrians, access points abound. With such a campus, it would be fruitless to draw a Maginot Line around the perimeter in order to determine at what precise point an employee left the premises of her employment. For such purposes a subpoint must be used--the building in which the employee worked. To determine when she left the scope of her employment, it is - 6 - sufficient to look at when she left her specific work site-- Clinic Building P. Consider the alternative. What if a worker, having many options nearby, chose to eat lunch at a restaurant across the opposite end of the Clinic campus and was injured in the last leg of that route while she was crossing a public street intersecting the Clinic campus? But for her decision about lunch, she would not necessarily be at that point of the campus. An absurd result would occur under these circumstances, if this employee were deemed in the zone of her employment when she left the particular building in which she performed her services. Citing Faber v. R.J. Frazier Co. (1991), 72 Ohio App.3d 9, plaintiff argues that injuries occurring on public streets abutting an employer's plant are compensable. Faber is readily distinguishable, however, since the accident in that case occurred on a private, not a public, road which was the only means of ingress and egress to the plant where the claimant worked. Indeed, a barbed wire fence clearly marked the perimeter of the plant and eliminated any other means of access to what was the CEI Perry Nuclear Power Plant. As a contractor which supplied general tradesmen for work at this nuclear plant, the claimant's employer did not own or control the access road. However, the power plant did. For purposes of the claimant's employment at that assignment, the access road constituted the employment premises. Moreover, the accident in Faber occurred during a shift change in which all the employees were permitted - 7 - to leave their work site six minutes before the end of their shift and to arrive six minutes before the shift began. The employee in Faber was struck and killed by another employee coming to work. The accident in the case sub judice occurred on a public thoroughfare and was not the sole means of egress from plaintiff's specific work site. There is no evidence, moreover, that the person who struck plaintiff had any business with the Cleveland Clinic. Finally, unlike the shift change at the nuclear plant, the timing of the event was not shown to be within the control of the employer. For all these reasons Faber does not control the case at bar. In addition, this court of appeals has recognized, contrary to plaintiff's argument, that lunch time injuries occurring within comparable distances from the employee's work site are not compensable. Hill v. General Metal Heat Treating, Inc. (1988), 47 Ohio App.3d 72, 74. Although plaintiff describes her break as a "break for health care," in fact, she was on her lunch hour, an unpaid period of time which employees may use any way they wish. Plaintiff argues that a right to compensation is not affected by the fact that a worker is on a break for rest or refreshment and, in support, cites Bauder v. Mayfield (1988), 44 Ohio App.3d 91. A "break" is generally considered such a brief interruption of one's work that it is paid for and usually limited to the immediate building. In many workplaces it often goes unrecorded and is so informal that it is difficult to know when an employee - 8 - is actually on a break. An unpaid lunch hour away from one's building is another matter. Control Plaintiff contends that a written protocol between the City of Cleveland and the Clinic, which authorizes the Clinic to patrol the intersection where the accident occurred, transferred sufficient control over the intersection to the Clinic to warrant imposing workers' compensation liability. An employer's right to patrol an intersection, however, is not synonymous with controlling an area for purposes of determining the zone of employment. No one controls public streets, not even the city, which paves the street, determines the frequency of traffic light changes, et cetera. In the case at bar, the employer did not control East 96th Street or drivers on it, no matter what security forces it employed. In Faber, supra, the employer exercised control over drivers by its policy of encouraging workers on two shifts either to arrive or leave on the same road within the same six-minute interval. No such control was exercised in the case at bar. In an older, but unchallenged case, the Summit County Court of Appeals has specifically held that accidents occurring on the sidewalk of a public street which runs between buildings of an employer's plant are not subject to the workers' compensation act. Fike v. Goodyear Tire & Rubber Co. (1937), 56 Ohio App. 197. The record demonstrates that Goodyear exercised more - 9 - control over the public street where the accident occurred in Fike than the Clinic exercised in this case. In MTD Products v. Robatin (1991), 61 Ohio St.3d 66, the Ohio Supreme Court, reviewing both the special hazard exception and the zone of employment theory, rejected a claim for an injury a worker received when he was rear ended as he was waiting to turn into his place of employment. His work site apparently had a single point of access which was obstructed by a vehicle in the employer's lot. In rejecting the special hazard exception, the court explained: "Like millions of Ohioans driving to work every day, Robatin drove on busy, public streets. He like everyone else, risked an accident." Moreover, the employer had no control over the street or over the negligent driver who caused the accident. Id. at 70. If an employer is not deemed to have control over this situation, neither is the Clinic in the case at bar. Benefit Finally, plaintiff failed to demonstrate that the Clinic received any benefit from her presence at the accident scene. The record demonstrates that plaintiff left her work station on an unpaid lunch break and was not performing any service for the Clinic at the time of the accident. Her visit to a dermatologist was not required by her employer and constituted a personal errand which did not result in any tangible benefit to her employer. Plaintiff had the option of selecting a different health care provider located elsewhere but chose the Clinic - 10 - dermatology department as well as the time at which she would arrive there. Her claims that the Clinic benefitted from her visit to a Clinic dermatologist, rather than to some other physician, by minimizing her time away from work and/or reducing the cost to the Clinic, are not supported by the record. They are mere speculation. If the Clinic had required or even requested its employees to use the Clinic's services, then a benefit to the Clinic might be inferred. That the employee had another option is crucial here and requires that we view her travel to a Clinic doctor the same as travel to any doctor whose treatment the employer covered. Because she was free to choose her physician, free to choose the time of the consultation, and free to choose the route she took to get there, it was not her employment that led her to be at the location where the injury occurred. To support her claim of a benefit to the employer, Plaintiff cites Fisher v. Mayfield (1990), 49 Ohio St.3d 275. In Fisher, however, the plaintiff was not on a personal errand. She went to collect for the employees' flower fund. Her errand was to seek a benefit not for herself, but for the employees. In the case at bar plaintiff is on no such larger mission; her errand is personal. As Justice Resnick's dissent in Robatin, supra, clarified, the Ohio Supreme Court has retreated not only from Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, but also from Fisher, supra. In rejecting any benefit to the employer, the Robatin - 11 - Court explained the worker was not yet "performing any service for the benefit of the employer." The court did not ask whether the activities were "incidental" to employment, a test other courts have used for a brief coffee break. Rather, the court looked for a "service." In the case at bar, the worker was performing no service. Viewing the totality of circumstances surrounding her accident, we find that plaintiff has not demonstrated a causal connection between her injury and her employment and thus has failed to prove she is entitled to participate in the workers' compensation fund. Appellant also argues that summary judgment should not have been granted because key factual issues are in dispute. The issues are (1) the proximity of the accident to the employer's premises, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the plaintiff being at East 96th St. on her lunch break. The facts in these issues are not in dispute. For example, the actual distances, either between the accident and her work site or between the accident and the nearest boundary of the Cleveland Clinic premises, are not in dispute. What is at issue is which set of points to use, and this type of question is not factual. Accordingly, plaintiff's three assignments of error are overruled. Judgment affirmed. - 12 - It is ordered that appellees recover of appellant their 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. DAVID T. MATIA, P.J., CONCURS; DYKE, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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 .