685 N.E.2d 1261 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *575 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, through a district hearing officer, initially allowed appellant's application for benefits, the Cleveland Regional Board of Review vacated the order. Appellant was thus denied the right to participate in the Workers' Compensation 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.
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: "Whether 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 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. *576
Appellant stated in deposition testimony that Riser was fully aware of the machine's malfunctioning. Both he and other Riser employees had rocked the machine on multiple prior occasions despite a warning label that advised that "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),
Appellant's injury, to be compensable, must have occurred "in the course of, and arising out of" his employment. R.C.
The phrase "in course of" relates to the time, place and circumstances of the injury. Id. See Fletcher v. NorthwestMechanical Contr., Inc. (1991),
These general guidelines must nonetheless be tempered by the purpose of the Workers' Compensation Act. The Act is 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 ToolCo. (1986),
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, 1995 WL 803583, citing Fulton, at 155, Section
The burden is on the claimant to establish that the injury occurred in the course of his employment. French v. AT TTechnologies, Inc. (1991),
In applying the foregoing law regarding the element "in the course of" 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. *578
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. EatonCorp. (1980),
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),
Appellant's assignment of error is overruled.
Judgment affirmed.
JAMES D. SWEENEY, P.J., HARPER and TIMOTHY MCMONAGLE, JJ., concur. *579