[Cite as Kenney v. Ables, 2016-Ohio-2714.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KRISTIN KENNEY, ET AL. JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiffs-Appellants Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15-CA-68
SARAH ABLES, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 13 CV 01202
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 26, 2016
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
Sarah Ables
C. DANIEL HAYES BELINDA S. BARNES
Hayes Law Offices Gallagher, Gams, Pryor,
195 E. Broad Street Tallan & Littrell LLP
PO Box 958 471, East Broad St, 19th Floor
Pataskala, Ohio 43062 Columbus, Ohio 43215-3872
AND
For Defendants-Appellees
Progressive Casualty Insurance Co., Inc.
JOEL S. MCPHERSON
Progressive Direct Insurance Company
5115 Parkcenter Ave, Suite 260
Dublin, Ohio 43017
Licking County, Case No. 15-CA-68 2
Hoffman, J.
{¶1} Plaintiffs-appellants Kristin Kenney, et al. (hereinafter “Appellant Kristin”
and “Appellant Stephen”, individually; “Appellants”, collectively) appeal the August 18,
2015 Judgment Entry entered by the Licking County Court of Common Pleas, which
granted summary judgment in favor of defendant-appellee Sarah Ables.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Kristin and Appellee were both employed at Kohl’s Department
Store in Newark, Ohio. On December 23, 2011, Appellant Kristin and Appellee left the
store after completing their shifts and were walking to their respective vehicles which were
parked in the employee area of the store parking lot. Appellee owned a 1997 Acura CL
which had a manual transmission and was equipped with an automatic starter. As she
approached her vehicle, Appellee depressed what she thought was the door unlock
button on her key fob. The Acura, which was in gear, automatically started, jumped a
curb, and struck Appellant Kristin, pinning her to the building. Appellant Kristin sustained
significant injuries as a result.
{¶3} On December 5, 2013, Appellant Kristen and her husband, Appellant
Stephen, filed a Complaint against Appellee in the Licking County Common Pleas Court,
asserting claims of negligence and loss of consortium. Appellee answered, maintaining
she was entitled to immunity pursuant to R.C. 4123.741, because the injury occurred “in
the course of and arising out of” Appellant Kristin’s employment; therefore, was
compensable under the workers’ compensation statutes.
{¶4} Appellant Kristin subsequently filed for Workers' Compensation benefits
based upon the injuries sustained as a result of this accident. The Bureau of Workers'
Licking County, Case No. 15-CA-68 3
Compensation found Appellant Kristen was entitled to benefits. The trial court stayed the
matter pending the workers’ compensation appeal. The decision was affirmed on appeal
by a Staff Hearing Officer of the Ohio Industrial Commission on December 8, 2014.
{¶5} The trial court reactivated the case on May 18, 2015. On May 26, 2015,
Appellee filed a motion for summary judgment premised upon the Fellow Servant
Immunity Doctrine, R.C. 4123.741. Appellants filed a memorandum contra on June 17,
2015, and Appellee filed a reply on July 1, 2015.
{¶6} Via Judgment Entry filed August 18, 2015, the trial court granted summary
judgment in favor of Appellee, and dismissed Appellants’ complaint. The trial court found
"the actionable conduct of engaging the automatic starter occurred in the course of
employment." The trial court added "assuming the alleged actionable conduct could have
occurred prior to the incident, [Appellant] has come forth with no evidence of [Appellee's]
negligence." The trial court further found Appellant Stephen's claim of loss of consortium
was derivative; therefore, because it found Appellee was not liable to Appellant Kristin,
Appellee could not be liable to Appellant Stephen.
{¶7} It is from this judgment entry Appellants appeal, raising as their sole
assignment of error:
“I. THE LOWER COURT COMMITTED REVERSIBLE ERROR
WHEN IT IMPROPERLY WEIGHED THE SUBMITTED EVIDENCE AND
GRANTED APPELLANTS’ [SIC] MOTION FOR SUMMARY JUDGMENT
ON THE ISSUE OF R.C. 4123.741 CO-EMPLOYEE IMMUNITY.”
Licking County, Case No. 15-CA-68 4
SUMMARY JUDGMENT
{¶8} Civ. R. 56 states in pertinent part:
{¶9} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue of 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 the evidence or
stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or
stipulation construed mostly strongly in the party's favor. A summary judgment,
interlocutory in character, may be rendered on the issue of liability alone although there
is a genuine issue as to the amount of damages.”
{¶10} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 424 N.E.2d
311. The court may not resolve any ambiguities in the evidence presented. Inland Refuse
Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 474 N.E.2d
271. A fact is material if it affects the outcome of the case under the applicable substantive
law. Russell v. Interim Personnel, Inc. (6th Dist.1999), 135 Ohio App.3d 301, 733 N.E.2d
1186.
Licking County, Case No. 15-CA-68 5
{¶11} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212. This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.
{¶12} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party's claim. Drescher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.
Once the moving party meets its initial burden, the burden shifts to the nonmoving party
to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.
The non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle (12th Dist.1991), 75 Ohio App.3d 732, 600 N.E.2d 791.
I
{¶13} In their sole assignment of error, Appellants maintain the trial court erred in
granting summary judgment in favor of Appellee.
{¶14} R.C. 4123.74 and 4123.741 provide civil immunity to a fellow employee who
causes an accident to a co-worker while the activity is related to the "victim" employee's
employment. Specifically, R.C. 4123.741 provides:
No employee of any employer as defined it division (B) of section
4123.01 of the Revised Code, shall be liable to respond in damages at
common law or by statute for any injury or occupational disease, received
or contracted by any other employee or such employer in the course of and
Licking County, Case No. 15-CA-68 6
arising out of the later employee's employment, or for any death resulting
from such injury or occupational disease, on the condition that such injury,
occupational disease, or death is found to be compensable under sections
4123.01 to 4123.94, inclusive of the Revised Code.
{¶15} In Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St.2d 18, the
Ohio Supreme Court expounded on the meaning of the term "in the course and arising
out of" as it relates to injuries sustained by an employee while in the parking lot of his/her
employer:
An employee who, on his way from the fixed situs of his duties after
the close of his workday, is injured in a collision of his automobile and that
of a fellow employee occurring in a parking lot adjacent to such situs of duty
and owned, maintained and controlled by his employer for the exclusive use
of its employees, receives such injury "in the course of, and arising out of"
his employment, within the meaning of that phrase in the Workmen's
Compensation Act, Section 4123.01(C), Revised Code.
{¶16} The parties do not dispute Appellant Kristin sustained her injuries "in the
course of, and arising out of" her employment. Appellant Kristin and Appellee were
employees of Kohl's at the time of the accident. They had both exited the store after
completing their shifts and were walking to their respective vehicles, located in the Kohl's
parking lot, when the accident occurred. Furthermore, the Bureau of Workers'
Compensation found Appellant Kristin was entitled to benefits as a result of the injuries
sustained when she was struck by Appellee's vehicle.
Licking County, Case No. 15-CA-68 7
{¶17} Appellants, however, argue the trial court incorrectly concluded Appellee's
actionable conduct occurred "in the course of, and arising out of" her employment.
{¶18} In Donnelly v. Herron (2000), 88 Ohio St.3d 425, the Ohio Supreme Court
held: "R.C. 4123.721 extends immunity to a coemployee only when the actionable
conduct occurs 'in the course of, and arising out of' the coemployee's employment within
the meaning of that phrase in the Workers' Compensation Act." The Donnelly Court
noted:
The definition of "employee" set forth in R.C. 4123.01(A)(1)(a), as
"every person in the service of” a qualifying employer, is equally applicable
to both employees who form the subject of R.C. 4123.741. Thus, nothing
more is required of the employee seeking immunity to be "in the service of"
the employer than is required of the injured employee in obtaining
compensation coverage. In addition, any employee who seeks workers'
compensation benefits must be in the service of a qualifying employer, and
if we held that a coemployee is not in the service of a qualifying employer
while driving in the employer's parking lot on his way to and from work, we
would put in serious jeopardy the rights of an entire class of injured
claimants who seek workers' compensation benefits under similar
circumstances. Id. at 428-29.
{¶19} Appellants assert Appellee’s actionable conduct was not the result of her
coming or going to work, but rather the result of her maintaining a manual transmission
vehicle with a faulty automatic starter for four years. Appellants submit Appellee was
aware the automatic starter was faulty long before the accident; therefore, the actionable
Licking County, Case No. 15-CA-68 8
conduct did not occur "in the course of and arising out of" her employment. We disagree.
Appellee's actionable conduct was the depressing of the automatic starter button, which
occurred "in the course of and arising out of" her employment. We find Appellants failed
to present evidence Appellee knew the starter was faulty. Appellee testified she knew
the vehicle had an automatic starter, but, in the four years she owned the vehicle, she
never used the automatic starter and did not believe it worked.
{¶20} We now turn to Appellants argument the trial court erred in granting
summary judgment in favor of Appellee on Appellant Stephen’s loss of consortium claim.
"[A] claim for loss of consortium is derivative in that the claim is dependent upon the
defendants having committed a legally cognizable tort upon the spouse who suffers bodily
injury." Donnelly, supra at *7 citing Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St. 3d 84.
Because Appellee is not liable to Appellant Kristin for injuries pursuant to R.C. 4123.741,
there is no legally cognizable tort against Appellee; therefore, Appellant Stephen has no
derivative claim to loss of consortium.
{¶21} Appellants' sole assignment of error is overruled.
Licking County, Case No. 15-CA-68 9
{¶22} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, J.
Farmer, P.J. and
Baldwin, J. concur
Kenney v. Ables
Combined Opinion