COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70510 JOHN H. CARRICK : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION RISER FOODS, ET AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 10, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-286517 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Mitchell A. Stern, Esq. Lynn R. Grabiak, Esq. 1015 Euclid Ave., 3rd Floor Robert C. McClelland, Esq. Cleveland, Ohio 44115 Rademaker, Matty, McClelland & Greve 55 Public Square, Suite 1775 Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiff-appellant John Carrick was injured on the premises of his employer, defendant-appellant Riser Foods, Inc. ("Riser"), on November 17, 1990. Although the Industrial Commission of Ohio, ("the Commission"), through a District Hearing Officer, initially allowed appellant's Application for Benefits, the Cleveland Regional Board of Review ("the board of review") vacated the order. Appellant was thus denied the right to participate in the Workers' Compensation Fund ("the Fund"). The Commission thereafter denied appellant's appeal and affirmed the ruling of the board of review. Appellant filed an administrative appeal on March 20, 1995 in the Court of Common Pleas of Cuyahoga County pursuant to R.C. 4123.512. The trial court ultimately granted Riser's motion for summary judgment on March 16, 1996. In this accelerated appeal, appellant submits that genuine issues of material fact remain for litigation regarding his entitlement to participate in the Fund. Specifically, he frames the issue before this court as follows: "[w]hether an employee, who is injured during and [sic] employer-sanctioned break, when he tipped over a soft drink machine that fell on his leg, sustained his injury in the course of, and arising out of his employment." Appellant arrived at Riser's Edgecliff retail store on November 17, 1990 at approximately 10:30 p.m. He decided to take a break from his duties as a stocker at about 3:00 a.m. Appellant deposited fifty cents into one of three soda machines located in the employee lunchroom. Appellant rocked the machine back and -3- forth in an effort to dislodge the soda when the soda did not emerge from the machine. The machine tipped over thereby causing appellant to sustain a fractured femur. Appellant stated in deposition testimony that Riser was fully aware of the machine's malfunctioning. Both he and other Riser employees "rocked" the machine on multiple prior occasions despite a warning label that advised "tipping or rocking may cause serious injury or death." Riser, apparently aware of the machine's problems, provided a procedure whereby employees could receive refunds for their lost money. However, appellant did not follow this procedure because the appropriate office was not open at the time of the incident. Based upon these facts, Riser, citing Georgejakakis v. Wheeling Steel Corp. (1949), 151 Ohio St. 458, argued in its motion for summary judgment that appellant was not entitled to workers' compensation benefits because at the time he sustained his injury, he deviated from his course of employment by rocking the soda machine. Appellant's injury, to be compensable, must have occurred "in the course of, and arising out of" his employment. R.C. 4123.01 (C); Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 276, citing Bralley v. Daugherty (9180), 61 Ohio St.2d 302. The Supreme Court of Ohio, in Fisher, recognized the conjunctive nature of the coverage formula. Id., 277. However, the court, in addition to noting that workers' compensation statutes are to be liberally construed, clarified that all elements of the formula must be met -4- prior to the awarding of benefits. Id., 277-278. See MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66. The "in course of" prong relates to the time, place and circumstances of the injury. Id. See Fletcher v. Northwest Mechanical Contr., Inc. (1991), 75 Ohio App.3d 466. Generally, an employee is considered in the course of his employment while performing an obligation of his contract of employment. Fletcher, 471, citing Indus. Comm. v. Davison (1928), 118 Ohio St. 180. See Williams v. Martin Marietta Energy Sys., Inc. (1994), 99 Ohio App.3d 520; Fulton, Ohio Workers' Compensation Law (1991) 148, Section 7.6. However, the employee need not be injured in the actual performance of his duties since he is in the course of his employment "when he 'does such things as are usually and reasonably incidental to the work of the employer ***.'" Lemming v. Univ. of Cincinnati (1987), 41 Ohio App.3d 194, quoting Taylor v. Indus. Comm. (1920), 13 Ohio App.262, 270. See Sebek v. The Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693; Hampton v. Trimble (1995), 101 Ohio App.3d 282. Therefore, when the employee is injured while, e.g., taking refreshments during a break, he may be entitled to benefits. Id. See Martin Marietta Energy Sys., Inc.; Pilar v. Ohio Bur. of Workers' Comp. (1992), 82 Ohio App.3d 819; Dolby v. Gen. Motors Corp. (1989), 62 Ohio App.3d 68; Bauder v. Mayfield (1988), 44 Ohio App.3d 92; Primiano v. Ohio Bell Tel. Co. (Apr. 24, 1986), Cuyahoga App. No. 50495, unreported. These general guidelines must nonetheless be tempered by the purpose of the Workers' Compensation Act ("the Act"). The Act is -5- not meant to impose a duty on an employer as an absolute insurer of the employee's safety. Rather, the Act is intended to protect employees against the risks and hazards incident to the performance of their duties. See Phelps v. Positive Action Tool Co. (1986), 26 Ohio St.3d 142; Tamarkin Co. v. Wheeler (1992), 81 Ohio App.3d 232. See, also, Beharry v. Cleveland Clinic Foundation (Nov. 22, 1995), Cuyahoga App. No. 68050, unreported (this court intimating that a stricter test is possibly forthcoming since the Supreme Court of Ohio, in MTD Products, seemingly retreated from the "incidental test," and instead focused on "service"). As a logical result of the principle that an employer is not an absolute insurer of its employees' safety, injuries that result from an employee's misconduct or "deviant" behavior are not compensable as the conduct falls outside the scope of employment. Kohn v. Trimble (Nov. 17, 1995), Trumbull App. No. 95-T-5210, unreported, citing Fulton, at 155, Section 7.12. See Ruggy v. Industrial Commission of Ohio (1950), 153 Ohio St. 475. Cf. Georgejakakis and State v. Lovely (1950), 91 Ohio App. 315 (discussing applicable law regarding right to participate in Fund when employees engaged themselves in industrial work for which they were not specifically hired). Employees are not, therefore, entitled to compensation where injuries are sustained during "horseplay," and quarrels or fights that are instigated by the injured employee. See Caygill v. Jablonski (1992), 78 Ohio App.3d 807; Brown v. Indus. Comm. (1948), 86 Ohio App. 256; Kohn. -6- The burden is on the claimant to establish that the injury occurred in the course of his employment. French v. AT&T Technologies, Inc. (1991), 69 Ohio App.3d 342, 247. See Stevens v. Indus. Comm. (1945), 145 Ohio St. 198. The mere fact that an injury occurred during employment is not sufficient to establish entitlement to benefits. See Eggers v. Indus. Comm. (1952), 157 Ohio St. 70. In applying the foregoing law regarding the "in the course of" element to the facts before this court, we analogize appellant's act of rocking the soda machine to horseplay. The hazard created by appellant's tipping the soda machine was not a hazard incident to the performance of his duties as a stocker. Appellant thus failed to produce any evidence to demonstrate any association between his employment and the circumstances of the injury as is required by the "in the course of employment" portion of the coverage formula. Compare Baughman v. Eaton Corp. (1980), 62 Ohio St.2d 62 (no causal connection exists between gunshot injury and employment when employee brought gun to work and became subject to a danger of his own creation); Sebek (where employee sustains physical injury by doing nothing more than eating allegedly contaminated meal that was provided as part of compensation, injury was incidentally and directly connected to employment); Trotter v. Ohio Bureau of Workers' Compensation (Apr. 2, 1992), Cuyahoga App. Nos. 60325, 60388, unreported (employee does not deviate from course of employment when injured during innocent act of trying to remove ice from shoes). The fact that Riser may have been -7- negligent in failing to repair the soda machine is irrelevant to the determination of whether appellant is entitled to participate in the Fund. See Waller v. Mayfield (1988), 37 Ohio St.3d 118; Bralley; Indus. Comm. v. Weigandt (1921), 102 Ohio St. 1; Smith v. Apex Div., Cooper Indus., Inc. (1993), 88 Ohio App.3d 247. In conclusion, the undisputed evidence failed to establish the essential elements of claim for participation in the Fund. The trial court thus properly granted Riser's motion for summary judgment. See Civ.R. 56(C); Dresher v. Burt (1996), 75 Ohio St.3d 280, modifying Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108; Osborne v. Lyles (1992), 63 Ohio St.3d 326. Appellant's assignment of error is overruled. Judgment affirmed. -8- 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. JAMES D. SWEENEY, PRESIDING JUDGE SARA J. HARPER, JUDGE TIMOTHY MCMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .