605 N.E.2d 1352 | Ohio Ct. App. | 1992
This is an appeal from a summary judgment granted by the Lucas County Court of Common Pleas in favor of defendant-appellee, Patrick Jablonski ("appellee").
Plaintiff-appellant, John D. Caygill ("appellant"), sets forth one assignment of error:
"The trial court erred in granting defendant's motion for summary judgment by misapplying the law to the facts of this case and reaching the conclusion that O.R.C.
The facts that are relevant to a determination of the issues raised by this appeal are as follows. On July 24, 1989, both appellant and appellee were employed by the city of Sylvania, Division of Streets, as street crew workers. On that day they had finished their work duties early and were waiting in the Sylvania City Garage for 3:00 p.m., the time their workday ended, so that they could leave. While they were waiting, appellee, a "temporary employee," became involved in a "pick-up" game of baseball. The game involved the use of a shovel handle as a bat to hit a "ball" of rolled-up rags. Each person playing would take turns batting, pitching and playing the outfield. While appellee was taking a swing during his turn at bat, the shovel handle slipped out of his hands and flew into appellant's forehead. Appellant was not involved in the pick-up game. Thereafter appellant applied for and received workers' compensation benefits from the Ohio Bureau of Workers' Compensation for the injuries he sustained from the bat hitting him. On November 2, 1990, appellant filed a complaint in the Lucas County Court of Common Pleas against appellee based on common-law negligence. On January 23, 1991, appellee filed his answer in which he alleged as a defense that appellant's claims were barred by the immunity granted to coemployees under R.C.
Appellee testified at his deposition that his job duties did not include playing the game but that he and others had played the game on ten to fifteen different occasions, that one of the supervisors had previously participated in the game and that no supervisor had ever "* * * once said, no, don't play."
On October 7, 1991, the trial court filed its opinion and judgment entry in which it found appellee to be immune from suit and granted summary judgment to appellee. In so finding, the trial court analyzed the statute in part as follows:
"In this case both Plaintiff and Defendant were on the employer's property and therefore within the `zone of employment.' Further both Plaintiff and Defendant were there as employees during their regular working hours.
"Even though the Defendant was playing ball, which was not part of the Defendant's job description, he is still immune from suit by the Plaintiff, since O.R.C. section
"It is important to note that O.R.C. section
"The term `in the service of' is a very broad term, so that the term employee can be defined very broadly. This broad definition of employee status is to the benefit of all employees and is therefore good public policy.
"In this case, even though the Defendant was not engaged in activity within his job description, based on other factors he was still in the service of his employer and therefore qualifies as an employee for purposes of O.R.C. section
It is from this judgment that appellant brings this appeal.
In support of his sole assignment of error, appellant argues that appellee was not an "employee" of their mutual employer at the time appellee caused injury to him because "[t]he conduct of the Appellee at the time of the accident * * * is clearlynot rendering benefit to his employer * * *."
Appellee responds that "* * * one would have to completely disregard the language of R.C.
Appellant replies that he "* * * has never denied that he sustained his injury within the course and scope of his employment. Appellant's argument *811
has always been that the Appellee had made a significant detour from the course and scope of his employment and therefore should be precluded from shielding himself from liability with O.R.C. Section
Civ.R. 56(C) provides, in pertinent part, that:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
The issue presented by appellant's sole assignment of error is whether a genuine issue of material fact remains as to appellee's status as an "employee" at the time of appellant's injury.
R.C.
"No employee * * * shall be liable to respond in damages at common law * * * for any injury * * * received * * * by any other employee * * * in the course of and arising out of the latter employee's employment * * * on the condition that such injury * * * is found to be compensable * * *."
In Proctor v. Ford Motor Co. (1973),
"To qualify for statutory immunity from tort liability under R.C.
In this case, since appellee's employer is the city of Sylvania, in order to qualify for statutory immunity under R.C.
A preliminary issue for this court to determine is whether a tortfeasor, who, while under a contract of hire with the injured person's employer, causes injury while on the employer's premises and during his regular working hours but while engaged in horseplay disconnected from his employment, *812
is a "* * * person in the service of * * *" such employer for purposes of qualifying for statutory immunity from tort liability under R.C.
In Wingate v. Hordge (1979),
"It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation. Provident Bank v.Wood (1973),
In determining the meaning of words and phrases in a statute, when a term has acquired a technical meaning by legislative definition, court decision or otherwise, it shall be construed accordingly and no further interpretation is necessary. R.C.
When a term has not been defined by the legislative enactment in which it appears, by court decision or otherwise, it will be given its common, ordinary and accepted meaning in the context in which it is used. R.C.
If the generally accepted meaning of a term is clearly repugnant to the intention of the legislature, or if there is more than one generally accepted meaning of the term, such term "* * * may be subject to judicial interpretation * * *."Wadsworth v. Dambach (1954),
R.C.
No Ohio court has directly addressed the issue of whether a tortfeasor qualifies for statutory immunity from tort liability under R.C.
The word "service" is defined, in pertinent part, in Webster's Ninth New Collegiate Dictionary (1989) 1076, as "* * * 1 a: the occupation or function of serving (in active) b: employment as a servant (entered his) 2a: the work performed by one that serves (gives good) b: HELP, USE, BENEFIT (be of — *814 to them) * * *." It is readily apparent that there are at least two ordinary meanings of the word "service," one which indicates general employment, the other the actual performance of work. The common usage, therefore, does not resolve but begs the issue in this case.
Upon consideration of the foregoing, this court finds preliminarily that R.C.
The General Assembly has established certain basic guidelines to assist in determining legislative intent. R.C.
"If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:
"(A) The object sought to be attained;
"(B) The circumstances under which the statute was enacted;
"(C) The legislative history;
"(D) The common law or former statutory provisions, including laws upon the same or similar subjects;
"(E) The consequences of a particular construction;
"(F) The administrative construction of the statute."
The object sought to be attained by the Ohio workers' compensation system is the creation of a trust fund "* * * to be administered for the benefit of workmen who suffer injury * * *." Indus. Comm. v. Drake (1921),
"By enacting R.C.
More specifically, the justification for the legislative extension of employer immunity to the coemployee is that, like the employer, the coemployee is entitled to quid pro quo for the rights he forfeits to a system of workers' compensation; "* * * he, too, is involved in this compromise of rights * * *. [O]ne of the things he is entitled to expect in return for what he has given up is freedom from common-law suits based on industrial accidents in which he is at fault." 2A Larson, Law of Workmen's Compensation (1989) 14-115, Section 72.22. In discussing the relationship between the justification for coemployee immunity and the employment status of the coemployee, Larson points out that:
"It must be observed that the immunity attaches to the coemployee only when the coemployee is acting in the course ofhis employment. This is consistent with the justification for the immunity just described, since the coemployee's employment status does not increase the risk of his causing non-industrial injuries to his fellow-workers." (Emphasis added.) Id. at 14-117 to 14-126, Section 72.23.
As to the history and circumstances surrounding the enactment of R.C.
"If the protection of the present workmen's compensation law of this state is to be expanded to include fellow employees as well as employers, this is a question of legislative policy to be determined by the General Assembly * * *." Id. at 18, 7 O.O.2d at 486,
The General Assembly responded with the passage of R.C.
As to cases dealing with the same or similar subjects, the rule and rationale pertaining to whether the injured employee is entitled to compensation when engaged in horseplay is instructive. Generally, an injury is compensable if the claimant was not the instigator of the horseplay, Indus. Comm. v.Weigandt (1921),
"An injury resulting from sportive play by fellow employees, instigated and engaged in by the injured employee while onduty, is not caused by or connected with the workmen's employment within the purview of the Workmen's Compensation Act." (Emphasis added). Id. at paragraph three of the syllabus.
This rule is partially derived from the rule that had previously been set forth by the Supreme Court in Indus. Comm.v. Ahern (1928),
"An employee who is injured when engaged, not in the serviceof an employer, but in pursuance of the employee's private and personal business, disconnected with the employment, is not entitled to compensation under the Workmen's Compensation Law." (Emphasis added.)
In discussing Ahern, the Supreme Court in Bankes noted that "* * * the accident was incurred during the time of the employee's service," but that compensation was nevertheless denied because the employee, when injured, was engaged "* * * not in the service of the employer, but in pursuance of [his] private personal business, disconnected from the employment * * *." (Emphasis added.) Id.,
"That rationale is equally applicable in determining the meaning of `in the service of an employer.' If the employee who commits the tort is in a position and engaged in an activity which, were he the injured party, would be `in the course of his employment' then he is an `employee' as defined in R.C. §
As to the consequences of a particular construction, any construction of R.C.
"* * * social policy has dispensed with fault concepts to the extent necessary to insure an automatic recovery by the injured workman; but the disregard of fault goes no further than toaccomplish that object, and, with payment of the workman assured, the quest of the law for the actual wrongdoer may proceed in the usual way." (Emphasis added.) Id. at 14-2, Section 71.10.
Accordingly, an injured worker is permitted recovery against a third-party tortfeasor even though the worker has received compensation; the third party, being a stranger to the employment relations governed by workers' compensation law, "* * * should not be in any degree absolved of his normal obligation to pay damages for such an injury." Id. When a coemployee is involved in horseplay disconnected from his employment at the time of injury, his relationship to his injured fellow worker more closely resembles that of a stranger than that of a coworker. The law of torts, with its attendant *818
allocation of fault, better serves as a deterrent to such conduct than does the workers' compensation system. Otherwise, were this court to construe R.C.
Upon consideration of the entire record of proceedings that was before the trial court and the law as set forth above, this court finds: (1) in order for a coemployee tortfeasor to be immune from liability pursuant to R.C.
Accordingly, appellant's sole assignment of error is well taken.
On consideration whereof, this court finds that substantial justice has not been done the party complaining, and the judgment of the Lucas County Court of Common Pleas entering summary judgment in favor of appellee is reversed. This cause is remanded to said court for further proceedings not inconsistent with this decision. Costs assessed against appellee.
Judgment reversedand cause remanded.
GLASSER, P.J., and MELVIN L. RESNICK, J., concur.
It should also be noted that our Supreme Court has at other times indicated that the issue of employee status is distinct from the issue of whether the injury was occasioned in the course of the employee's employment. Indus. Comm. v. Bateman
(1933),
