683 N.E.2d 808 | Ohio Ct. App. | 1996
Appellee filed a claim with the bureau for injuries she sustained on October 3, 1992, while riding a horse on Hogbark Ridge, in the Lake County Metro Parks System. Appellee is a member of the Lake Metro Parks Volunteer Mounted Posse,2 a group of experienced equestrians that provide assistance to the Lake Metro Parks Mounted Rangers on a volunteer basis. Appellee suffered injuries when her horse slipped on shale while crossing a creek, causing appellee to fall to the ground.
Appellee's claim was initially approved by a claims representative of the Bureau of Workers' Compensation by a letter dated January 12, 1994. The claim was denied by the district hearing officer in an order dated April 12, 1994, on the basis that appellee was not deemed to be an employee, pursuant to the holding in Cogar v. Shupe Middle School (June 19, 1991), Lorain App. No. 90CA004910, unreported, 1991 WL 116245. Appellee appealed from the April 12, 1994 order, *572 and the staff hearing officer affirmed the decision of the district hearing officer in an order dated August 2, 1994. Appellee appealed the August 2, 1994 decision, and on December 14, 1994, the Administrator refused to hear the appeal.
Appellee filed an appeal in the Lake County Court of Common Pleas on June 24, 1995. The testimony adduced at trial revealed the following facts. The posse members are unpaid volunteers that serve as the "eyes and ears" for the mounted rangers. The volunteers assist the mounted rangers in patrolling the park, especially in remote areas which are not easily accessible by foot. The posse members control the flow of traffic and crowds, assist the mounted rangers in criminal investigations, ride in parades, present educational programs to the public, serve as sources of information for the public, and act as goodwill ambassadors. In order to gain membership, a volunteer is required to be an experienced equestrian, to undergo thirty-six hours of training, to pass a written examination, and to participate in ten hours of activities on a monthly basis to maintain membership status. The members may choose the scheduled activities in which they desire to participate.
The posse members possess no law enforcement authority, receive no law enforcement training, do not carry sidearms or mace, and do not wear badges, only nameplates. The volunteers are not permitted to make any arrests themselves, but must report any observed criminal activity to the mounted park rangers. The posse members work under the supervision and direction of the mounted rangers, who are duly appointed law enforcement officers. Some posse members supply their own horses, while others use horses provided by Lake County. The volunteers are required to wear uniforms issued by Lake County when participating in posse activities.
One purpose of the October 3, 1992 "recreational, fun" ride was to reward the posse members for the numerous hours that they had volunteered. A second reason for the ride was to help familiarize the posse members with the less traveled trails in the park so that the volunteers could use that knowledge in the future. Appellee's expert witness testified regarding the extent of appellee's injuries and the fact that her ability to perform her duties as a nurse at Geauga Hospital had been impaired as a result of those injuries.
On November 28, 1995, the trial court granted a directed verdict for appellee. The trial court found that (1) appellee was a volunteer; (2) the activities of the posse were all law enforcement activities; (3) appellee was an employee under R.C.
Lake County timely appealed and raises two assignments of error:
"1. The trial court erred as a matter of law in holding that a volunteer mounted horseback unit member is entitled to participate in the worker's [sic] compensation system.
"2. The trial court improperly granted a directed verdict where reasonable minds could reach different conclusions."
The Administrator raises a similar first assignment of error, and also raises a different second assignment:
"2. The trial court erred in directing a verdict for a volunteer mounted park ranger in a workers' compensation appeal where defense witnesses testified that no work purpose was being served during a recreational fun ride."
The standard for granting a directed verdict under Civ.R. 50 is stated as follows:
"[T]he evidence must be construed most strongly in favor of the party opposing the motion. To grant [the] motion, a trial court must find that reasonable minds could come to but one conclusion and that conclusion must be adverse to the party opposing the motion. Civ.R. 50(A)(4); White v. Ohio Dept. ofTransp. (1990),
"A motion for directed verdict tests the legal sufficiency of the evidence, and therefore presents a question of law, even though in deciding such a motion it is necessary to review and consider the evidence. Accordingly, [an appellate court must] make an independent review." (Citations omitted.) Howell v.Dayton Power Light Co. (1995),
In the first assignment, Lake County and the Administrator argue that the workers' compensation system does not extend coverage to volunteer mounted horseback members, but only provides the right to compensation to those volunteers of lawfully constituted police and fire departments. In the instant appeal, we must decide whether the trial court properly determined that appellee, a volunteer member of a unit formed to assist park rangers in carrying out law *574
enforcement functions, was an employee by operation of law under R.C.
R.C.
"(A)(1) `Employee' means:
"(a) Every person in the service of the state, or of any county, municipal corporation, township, or school district therein, including regular members of lawfully constituted police and fire departments of municipal corporations and townships, whether paid or volunteer * * *."
"The rule of law [under R.C.
"The language in R.C.
However, the liberal construction rule is not absolutely and unqualifiedly applicable. See Swallow v. Indus. Comm. (1988),
Initially, we observe that appellee, as a posse member, does not fall within the narrow exceptions to R.C.
In accordance with the doctrine of expressio unius estexclusio alterius, we read the clauses in R.C.
The import of R.C.
"R.C.
The Ohio Attorney General also determined that a township police trainee appointed as an auxiliary officer, who received no compensation for his services, who had no regular duty schedule, who was not a "regular member" of a lawfully constituted police force, and who failed to qualify as an employee under R.C.
"[I]t is my understanding that the auxiliary trainees in question are not required to adhere to any schedule for performance of their duties, but need only assist officers for a specified number of hours per month. The trainee's function is totally subordinate to those of regular officers and it is my understanding that the trainees function essentially as observers. For these reasons, under even the most liberal imaginable construction of the term `regular member' of a township police department, I must conclude that an auxiliary trainee described in your first question does not qualify as an `employee' under the terms of R.C.
"It is, however, significant that R.C.
It is our view that when R.C.
The rule announced by the Ninth District Court of Appeals inCogar, supra, further supports our determination that appellee is not an "employee" by operation of law, and that contract coverage is the appropriate mechanism to secure such workers' compensation benefits for a person in her situation. "It is a well-settled rule that courts, when interpreting statutes, must give due deference to an administrative interpretation formulated by an agency that has accumulated substantial expertise, and to which the General Assembly has delegated the responsibility of implementing the legislative command."Swallow,
"James Young, a former Administrator of the Bureau of Workmen's Compensation and a recognized expert in the field, observed that `[o]nly volunteer policemen and volunteer firemen are considered employees by operation of law, all other volunteers must be covered by contract before coverage can be extended.' Young, Workmen's Compensation Law of Ohio (1971) 70, Section 4.19.
"* * *
"[I]n view of the longstanding construction by the Industrial Commission, we hold that volunteers, other than regular members of lawfully constituted police and fire departments, are not employees as defined in R.C.
It is our considered opinion that the facts presented in this case exemplify exactly the situation where contract coverage under R.C.
The trial court found that the activities of the posse members could justifiably be classified as law enforcement activities and that the posse members were law enforcement officials. The trial court reasoned as follows:
"The defense claims that the posse are not police, they have no arrest powers and they do not have a badge. All of those issues are correct, except that in order to be a policemen you do not have to have arrest powers; you do not have to have a badge.
"Auxiliary organizations exist all over the country for police departments and by and large they do not have any arrest power, although they do, depending on the departments, carry badges.
"But that is not the sole criterion of being a policeman. It is the function or the use to which the organization is put in determining whether or not they perform a police function. And certainly, traffic control, crowd control, representing the ranger department, complementing and assisting the rangers, going on patrols and looking for people in the woods and that sort of thing, those are all police functions."
Upon consideration of the pertinent case authorities, we reluctantly determine that the trial court's determinations were erroneous. We reach this conclusion after a review of the statutory and case law concerning the scope of authority and activities of peace officers and law enforcement officers.5
In Dektas v. Leis (1989),
"In order for a person to be a peace officer under R.C.
The Dektas court held that jail correction officers were not peace officers under R.C.
In State v. Glenn (Feb. 5, 1985), Portage App. No. 1286, unreported, at 5, 1985 WL 7797, affirmed (1986),
Admittedly, the activities of the volunteer posse members are, in some respects, analogous to the activities engaged in by the park rangers and other peace and law enforcement officers,e.g., assisting in criminal investigations, park patrol, and crowd control. However, that does not necessarily lead to the conclusion that the posse members are, thereby, properly classified as law enforcement officials. The posse members themselves lack the authority to enforce the laws, including arrest authority. Instead, the members are provided with two-way radios and are required to report any observed illegal activities to the park rangers, essentially acting as the "eyes and ears" of the park rangers. This type of activity is strikingly similar to the activities undertaken by various "neighborhood watch" civilian organizations.
We believe that the lack of authority to enforce the law is a critical distinguishing factor between auxiliary police officers and the posse members. In State v. Clark (1983),
Appellants' first assignments of error have merit. The trial court erroneously granted a directed verdict for appellee because appellee was not an employee as defined in R.C.
The judgment of the trial court is reversed, and judgment is entered for appellants.
Judgment reversed.
CHRISTLEY and DONOFRIO, JJ., concur.
JOSEPH DONOFRIO, J., retired, of the Seventh Appellate District, sitting by assignment.