COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71087 KAREN R. BROWN : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : UNIVERSITY HOSPITALS : OPINION OF CLEVELAND : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-299816. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Gregg A. Austin, Esq. 650 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, OH 44113 For Defendant-Appellee: Cathryn R. Ensign, Esq. Buckingham, Doolittle & Burroughs One Cleveland Center 1375 E. 9th Street, No. 1700 Cleveland, OH 44114-1724 For Bureau of Workers' Mark Mastrangelo, Esq. Compensation: Assistant Attorney General of Ohio State Office Tower - 12th Floor 615 West Superior Avenue Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Karen R. Brown, plaintiff-appellant, appeals the Cuyahoga County Court of Common Pleas granting of summary judgment in favor of University Hospitals of Cleveland, et al., defendant-appellee. For the following reasons, we affirm the decision of the trial court. I. STATEMENT OF FACTS On November 16, 1992, Karen R. Brown, plaintiff-appellant, was employed by University Hospitals of Cleveland ("University"), defendant-appellee. Plaintiff-appellant drove to work and parked her automobile on East 117th Street, which permits public parking. Plaintiff-appellant walked across two streets and down to Parking Lot No. 23, where she intended to cross to another parking lot, No. 61. Once there, she would be able to catch a shuttle bus which would take her to within walking distance from the building in which she worked. As plaintiff-appellant was walking across parking lot No. 23, she slipped and fell sustaining injuries. Both Parking Lots 23 and 61, were owned and operated by University Circle Inc. ("UCI"), a non-profit corporation which provides a variety of services, including parking, to its members. University is one of UCI's members. Moreover, the shuttle bus service plaintiff-appellant was attempting to reach is also owned and operated by UCI. Plaintiff-appellant filed a claim for workers' compensation benefits which was at first, denied. Plaintiff-appellant appealed and the claim was granted after the second administrative hearing. Subsequently, University appealed to the Cuyahoga Court of Common -3- Pleas pursuant to R.C. 4123.512 and plaintiff-appellant filed a petition on appeal as required by law. Both parties filed their motions for summary judgment and/or motions in opposition. The trial judge denied these motions before leaving the trial court for the Court of Appeals where he had recently been elected. The case was reassigned to another trial judge who refused to reconsider said motions. As both parties believed there were no material facts in dispute, both believed they were entitled to summary judgment. For that reason, the parties agreed that plaintiff-appellant would voluntarily dismiss her petition without prejudice on October 26, 1995 in accordance with Ross v. Wolf Envelope Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported. After a short period of time, plaintiff-appellant then refiled her petition and both parties filed their motions for summary judgment for consideration. On July 1, 1996, the trial court issued an order granting University's motion for summary judgment. Plaintiff-appellant timely filed her appeal. On August 30, 1996, plaintiff-appellant filed a motion to integrate the record which was denied by this court. The matter is now properly before this court for review. II. ASSIGNMENT OF ERROR Since plaintiff-appellant's first and second assignments of error contain similar issues of law and fact, we will consider them simultaneously: I. THE TRIAL COURT ERRED IN ITS CONCLUSION THAT FALLING ON ICE IS NOT -4- A MATERIAL FACT IN A WORKERS' COMPENSATION CASE. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEES [SIC] MOTION FOR SUMMARY JUDGMENT WHEN MATERIAL ISSUES OF FACT WERE IN DISPUTE. A. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY GRANTED DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant argues the trial court erred in granting summary judgment for defendant-appellee. Specifically, plaintiff-appellant argues whether or not the plaintiff-appellant slipped on ice is a genuine issue of material fact. In keeping with the mandates of Civ.R 56 and Griffin v. Hydra-Matic Division, General Motors Corp. (1988), 39 Ohio St.3d 79, plaintiff-appellant argues summary judgment was in error. Plaintiff-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc (1977), 50 Ohio St.2d 317. -5- "Upon a motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute and that no genuine issue of material fact exists is on the party moving for the summary judgment." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. After a moving party has established prima facie that it is entitled to summary judgment, a non-moving party may not rest upon the mere allegations or denials of his/her pleadings. Rather, either by response, affidavit or as otherwise provided in Civ.R. 56, the non-moving party must set forth specific facts establishing there exists a genuine issue of material fact for trial. See Stemen v. Shibley (1982), 11 Ohio App.3d 263. With these principles in mind, we turn our attention to the motion for summary judgment and the evidentiary materials filed in the case sub judice. C. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant strenuously argues "[i]ce is a material fact to this case." However, it is clear that the trial court properly construed the evidence in favor of plaintiff-appellant and assumed she slipped and fell on ice for purposes of the motion for summary judgment. Therefore, the basic premise of plaintiff-appellant's argument is unsupported by the record. Initially we note the Ohio's workers' compensation statute covers "any injury, whether caused by external accidental means -6- or accidental in character and results, received in the course of, and arising out of, the injured employee's employment." R.C. 4123.01(C). Plaintiff-appellant's confusion apparently stems from a misapplication of the law regarding the "special hazard exception" as it applies to slip and fall cases as set forth in Griffin v. Hydra-Matic Division, General Motors Corp. (1988), 39 Ohio St.3d 79. In that case, the employer admitted the employee was injured in the course of employment on the employment site. The court stated: Accordingly, we hold that an injury sustained by an employee upon the premises of her employer is compensable pursuant to R.C. Chapter 4123 irrespective of the presence or absence of a special hazard thereon which is distinctive in nature or quantitatively greater than hazards encountered by the public at large. (Emphasis added.) Id. at 82. In this case, there is no dispute that plaintiff-appellant was not upon the premises of her employer. Rather, she was merely traveling to her place of employment. Accordingly, the proper analysis to be utilized is set forth in MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66. In MTD, the Ohio State Supreme Court held in its syllabus: As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers' Compensation Fund because the requisite causal connection between the injury and the employment does not exist. -7- The court went on to indicate that injuries occurring off the employer's premises but within the "zone of employment" will be compensable henceforth only when the employment itself created a special hazard. See Brown v. B.P. Am., Inc. (1993), 85 Ohio App.3d 194. The "special hazard" exception applies where: (1) "but for" the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than the risk common to the public. Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, syllabus. It has been recognized that the applicability of the special hazard rule typically turns on the second prong. See Slagle v. White Castle Systems, Inc. (1992), 79 Ohio App.3d 210. For purpose of our review, the following facts have been established: 1) plaintiff-appellant was on her way to work, 2) the City was experiencing cold weather and plaintiff-appellant testified she knew the conditions were icy, 3) plaintiff- appellant parked her vehicle on a public street, crossed two roads, and was attempting to cross a parking lot in order to reach a shuttle bus, 4) plaintiff-appellant sustained injuries when she slipped and fell on ice in the parking lot she was crossing, and 5) the parking lot was not owned or operated by plaintiff-appellant's employer. We find the risk of slipping on ice, which was off the employer's premises, was no greater to plaintiff-appellant than it was to any other member of the general public. University, -8- therefore, created no "special hazard" entitling plaintiff- appellant to workers' compensation benefits for her injuries. See Brown, supra; Brown v. Bank One (May 25, 1995), Cuyahoga App. No. 67923, unreported. Additionally, we find that the injury did not occur in the "zone of employment." In reviewing the evidence submitted, plaintiff-appellant has failed to demonstrate a causal connection between his injury and the activities, conditions and environment of employment to fall within the zone of his employment. See Moffitt v. Bur. of Workers' Comp. (1991), 78 Ohio App.3d 48. For these reasons, the trial court did not err in granting defendant-appellee's motion for summary judgment. Plaintiff- appellant's first and second assignments of error are not well taken. Judgment affirmed. -9- It is ordered that appellee recover of appellant its 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. PORTER, J. and ROCCO, J., CONCUR. DAVID T. MATIA PRESIDING 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 .