[Cite as Cunningham v. Bone Dry Waterproofing, Inc., 2016-Ohio-3341.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Mark A. Cunningham, :
Plaintiff-Appellant, : No. 15AP-587
(C.P.C. No. 14CV-5801)
v. :
(REGULAR CALENDAR)
Bone Dry Waterproofing, Inc. et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on June 9, 2016
On brief: Gloria P. Castrodale, for appellant. Argued:
Gloria P. Castrodale.
On brief: Porter Wright Morris & Arthur, LLP, and Karl J.
Sutter, for appellee Bone Dry Waterproofing, Inc. Argued:
Karl J. Sutter.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Mark A. Cunningham, plaintiff-appellant, appeals the judgment of the
Franklin County Court of Common Pleas, in which the court granted the motion for
summary judgment filed by Bone Dry Waterproofing, Inc. ("Bone Dry"), defendant-
appellee.
{¶ 2} Appellant worked for Bone Dry, which is located in Columbus, Ohio. He
waterproofed newly built houses by applying a special "paint" onto the concrete block
foundations using paint brushes. Bone Dry would inform appellant which houses needed
waterproofing and appellant would drive his personal vehicle to the house. He obtained
the special paint from Bone Dry's headquarters, and he could obtain the paint brushes
No. 15AP-587 2
from either Bone Dry's headquarters or purchase them himself, with Bone Dry
reimbursing him. He kept extra paint and new and used paint brushes at his personal
residence so he would not have to travel to Bone Dry's headquarters before every new job.
He would store used paint brushes in a bucket of water at his house so he could reuse
them. Bone Dry paid appellant $50 per job and for his gas based on mileage for out-of-
town jobs.
{¶ 3} Appellant could work as many as five jobs in five different locations in one
day. His jobs were mostly in Ohio, but he also travelled to two or three jobs in
Pennsylvania. For example, in the week prior to the accident in question, appellant had
travelled to numerous cities outside of Columbus for jobs, including Jeffersonville,
Cambridge, Marietta, Caldwell, Plain City, and Newport. In the month prior to the
accident, he had worked mainly out of town.
{¶ 4} On May 2, 2013, appellant was not scheduled to work, but he drove to Bone
Dry's headquarters in east Columbus to pick up his paycheck. Appellant's brother, David
Cunningham, accompanied him, and the two planned to spend the day together. Bone
Dry informed appellant that it had three jobs for him to complete in a neighborhood in
Powell, Ohio, which is north of Columbus, and the jobs had to be completed that day.
Appellant took paint from the headquarters and began to drive to his house in southern
Columbus to pick up paint brushes for the three jobs, after which he planned to drop off
his brother, who lived about a quarter of a mile from appellant's home, before continuing
to the first job site. However, before he could reach his home, his vehicle was struck by
another vehicle, and appellant sustained serious injuries.
{¶ 5} Appellant filed a workers' compensation claim based on his injuries. Steve
Buehrer, Administrator, Ohio Bureau of Workers' Compensation ("bureau"), defendant-
appellee, allowed appellant's claim for workers' compensation. Bone Dry appealed the
order to a district hearing officer, who affirmed the allowance. Bone Dry appealed the
order to a staff hearing officer, who affirmed the allowance. Bone Dry appealed the order
to the Industrial Commission of Ohio ("commission"), which refused the appeal. Bone
Dry filed a request for reconsideration, which the commission granted. After a hearing,
the commission affirmed the previous orders.
No. 15AP-587 3
{¶ 6} On June 3, 2014, Bone Dry filed an appeal of the allowance in the Franklin
County Court of Common Pleas. On April 22, 2015, Bone Dry filed a motion for summary
judgment, arguing appellant's injuries did not occur in the course of and arising out of his
employment. On June 3, 2015, the common pleas court granted Bone Dry's motion for
summary judgment and, on June 12, 2015, the court entered judgment. Appellant appeals
the judgment of the trial court, asserting the following assignments of error:
[I.] The trial court erred by drawing inferences in favor of the
party seeking summary judgment Appellee-Defendant, Bone
Dry Waterproofing, Inc. ("Bone Dry") rather than viewing the
evidence in the light most favorable to the non-moving
part[y], the employee, Mark Cunningham.
[II.] The trial court erred in finding that there were no
material facts related to the question of whether Mark
Cunningham was a "fixed situs employee."
[III.] The trial court erred in applying the coming and going
rule when travel was a fundamental part of Cunningham's job
duties.
[IV.] The trial court erred in granting summary judgment
when issues of fact existed as to whether Mark Cunningham
was a "fixed situs employee" and whether traveling to various
job locations was a special hazard of Cunningham's job.
{¶ 7} We will address appellant's assignments of error together, as they all relate
to whether appellant's injuries occurred in the course of, and arising out of, his
employment and, taken together, challenge the trial court's granting of summary
judgment in favor of Bone Dry. Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) no genuine issue as to any material fact remains 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 to but 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. Temple v. Wean United, Inc., 50 Ohio St.2d 317,
327 (1977). Appellate review of a trial court's entry of summary judgment is de novo,
applying the same standard used by the trial court. McKay v. Cutlip, 80 Ohio App.3d 487,
491 (9th Dist.1992). The party seeking summary judgment initially bears the burden of
informing the trial court of the basis for the motion and identifying portions of the record
No. 15AP-587 4
that demonstrate an absence of genuine issues of material fact as to the essential elements
of the non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The
movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in
support of his motion. Id. Once this burden is satisfied, the non-moving party has the
burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial.
Id. The non-moving party may not rest upon the allegations or denials in the pleadings
but must affirmatively demonstrate the existence of a genuine issue of material fact to
prevent the granting of a motion for summary judgment. Civ.R. 56(C); Mitseff v. Wheeler,
38 Ohio St.3d 112, 115 (1988).
{¶ 8} "The test of the right to participate in the Workers' Compensation Fund is
not whether there was any fault or neglect on the part of the employer or his employees,
but whether a 'causal connection' existed between an employee's injury and his
employment either through the activities, the conditions or the environment of the
employment." Bralley v. Daugherty, 61 Ohio St.2d 302, 303 (1980). For purposes of the
Ohio Workers' Compensation statutes, " '[i]njury' includes any injury, whether caused by
external accidental means or accidental in character and result, received in the course of,
and arising out of, the injured employee's employment." R.C. 4123.01(C). Thus, to be
compensable under the workers' compensation fund, an employee's injury must be
(1) received in the course of, and (2) arising out of, his or her employment. Id.; Bralley at
303; Lippolt v. William R. Hague, Inc., 10th Dist. No. 08AP-140, 2008-Ohio-5070,
¶ 10. The employee bears the burden to prove both prongs of this two-prong formula.
Fisher v. Mayfield, 49 Ohio St.3d 275, 279 (1990). In interpreting the relevant statutory
requirements, we recognize that the workers' compensation statutes should be liberally
construed in favor of awarding benefits. R.C. 4123.95; Id. at 278.
{¶ 9} The Supreme Court of Ohio defined "in the course of employment":
The phrase "in the course of employment" limits compensable
injuries to those sustained by an employee while performing a
required duty in the employer's service. * * * "To be entitled to
workmen's compensation, a workman need not necessarily be
injured in the actual performance of work for his employer."
* * * An injury is compensable if it is sustained by an
employee while that employee engages in activity that is
consistent with the contract for hire and logically related to
the employer's business.
No. 15AP-587 5
Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 120 (1998). The determination of
whether an injury occurs in the course of employment requires courts to look at the time,
place, and circumstances of the injury. Id., citing Fisher at 277. These factors are used to
determine "whether the required nexus exists between the employment relationship and
the injurious activity." Id.
{¶ 10} "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." MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66
(1991), syllabus. This is referred to as the "coming-and-going" rule, which is "a tool used
to determine whether an injury suffered by an employee in a traffic accident occurs 'in the
course of' and 'arises out of' the employment relationship so as to constitute a
compensable injury." Ruckman at 119.
{¶ 11} The "coming-and-going" rule applies to "fixed-situs" employees. The
Supreme Court has defined a fixed-situs employee as one who "commences his or her
substantial employment duties only after arriving at a specific and identifiable workplace
designated by his employer," regardless of the fact that he may be "reassigned to a
different work place monthly, weekly, or even daily." Id. at paragraph one of the syllabus.
"In such a situation, each particular job site may constitute a fixed place of employment."
Barber v. Buckeye Masonry & Constr. Co., 146 Ohio App.3d 262, 270 (11th Dist.2001).
{¶ 12} In the present case, the trial court found that appellant was a fixed-situs
employee, reasoning that appellant would drive from his home or Bone Dry's office to a
specified job location, he was paid by the job, and his substantial employment duties
commenced only after he arrived at the job site. Thus, the trial court concluded the
coming-and-going rule was applicable.
{¶ 13} We agree with the trial court that appellant was a fixed-situs employee.
Appellant testified that he would drive from site to site, sometimes up to five job sites per
day, to paint waterproofing material on the top two courses of basement foundations. He
was paid by the job and for gas. On the day of the accident, appellant had the day off from
work but had driven to Bone Dry's headquarters to pick up his paycheck with his brother.
Bone Dry informed appellant that it had three jobs for him to complete, and they needed
No. 15AP-587 6
to be completed that day. He left Bone Dry's headquarters to pick up paint brushes from
his house, after which he was going to drop off his brother at his house. Appellant was
injured on his way to pick up the paint brushes. The paint brushes were provided by Bone
Dry but appellant kept them stored in a bucket of water at his house. He testified that if he
was out of town and needed a paint brush, he would buy one, and Bone Dry would
reimburse him.
{¶ 14} The undisputed facts show that, although the paint brushes were obviously
required to paint, appellant was not required to store them at his house and use those
paint brushes to carry out his job. Appellant stored them at his house because it was more
convenient and efficient for him than having to drive to Bone Dry's headquarters to get
them before every job. Appellant could also purchase paint brushes and be reimbursed by
Bone Dry or get paint brushes from Bone Dry's headquarters. Therefore, the facts
demonstrate that appellant's detour toward his home and his brother's home prior to
undertaking the painting job in Powell was not required as a part of his work.
{¶ 15} Under these facts, the use of paint brushes that appellant personally stores
at his home was not part of his "substantial employment duties," particularly when
"examin[ing] * * * the employee's duties as a whole and consider[ing] * * * whether such
duties were such as to make travel to and from the employee's home an integral part of
the employee's employment." Cossin v. Ohio State Home Servs., 10th Dist. No. 12AP-132,
2012-Ohio-5664, ¶ 23, 27, citing Ruckman at 120, and Bennett v. Goodremont's, Inc., 6th
Dist. No. L-08-1193, 2009-Ohio-2920. As such, as a matter of law, appellant does not
commence his substantial employment duties in his pursuit of the paint brushes at his
home but, rather, commences substantial employment duties only when he arrives at the
job site. That he often travels to multiple job sites on a single day does not alter this
conclusion. See Palette v. Fowler Elec. Co., 11th Dist. No. 2014-G-3196, 2014-Ohio-5376,
¶ 28 (that field service technician often reported to two jobs sites in one day did not alter
the conclusion that he was a fixed-situs employee), citing Gilham v. Cambridge Home
Health Care, Inc., 5th Dist. No. 2008 CA 00211, 2009-Ohio-2842, ¶ 18 (appellant was a
fixed-situs employee when, although she traveled to the homes of two separate clients in
one day, she commenced her substantial job duties when arriving at each home and
ended the duties upon leaving); Smith v. Akron, 9th Dist. No. 22101, 2004-Ohio-4974,
No. 15AP-587 7
¶ 12 (a landscaper was a fixed-situs employee when he traveled to two separate locations
in one day, which were both fixed locations); Brown v. Lake Erie Elec. Co., 12th Dist. No.
CA2010-04-030, 2010-Ohio-4950, ¶ 16 (finding a "journeyman electrician" to be a fixed-
situs employee when he reported to a designated job location to perform his work). The
main factor in determining whether an employee who travels to several different locations
in a day is a fixed-situs employee is whether the employee reports to a fixed location on a
given day. Id. In the present case, because appellant travelled to one or more fixed
locations on a given day to apply the waterproofing paint rendered him a fixed-situs
employee as contemplated in Ruckman.
{¶ 16} A fixed-situs employee is generally not entitled to participate in the workers'
compensation fund because a causal connection does not exist between his injury and his
employment to satisfy the "arising out of" requirement. Id. at 119, citing MTD Prods. at
68. However, there are exceptions under which the employee may demonstrate the causal
connection to satisfy the "arising out of employment" prong. Accordingly, the coming-
and-going rule does not operate as a complete bar to an employee commuting to and from
work in instances where: (1) the injury occurs within the "zone of employment"; (2) the
employment creates a "special hazard"; (3) there is a causal connection between the
employee's injury and employment based on the "totality of the circumstances"
surrounding the accident; and (4) the injury occurred while the employee was on a special
mission, errand, service or task for the employer.
{¶ 17} The first exception to the rule allows an employee to recover from an injury
that occurred within the "zone of employment," which has been defined as "the place of
employment and the area thereabout, including the means of ingress thereto and egress
therefrom, under control of the employer." Merz v. Indus. Comm., 134 Ohio St. 36, 39
(1938). This zone "is not a fixed area, rather, its relative limits or expansion must be
determined 'from the logical and close association of the surrounding area to the premises
of employment, together with the particular circumstances and hazards existing in
relation thereto.' " Berry v. G.C. Murphy Co., 6th Dist. No. L-81-o49 (Oct. 2, 1981),
quoting Frishkorn v. Flowers, 26 Ohio App.2d 165, 169 (8th Dist.1971). The issue as to
"[w]hether or not the employee's injuries are suffered in the 'zone of employment'
No. 15AP-587 8
depends on the specific facts and circumstances of each case." Custard v. First Natl.
Bank, 6th Dist. No. S-97-o58 (June 5, 1998).
{¶ 18} The "special-hazard" rule allows an employee to collect workers'
compensation benefits when the employment creates a special hazard and the employee's
injury results from that hazard. See MTD Prods. at 68; Powers v. Frank Z Chevrolet, 100
Ohio App.3d 718, 721 (2d Dist.1995). This rule is applicable when (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. Id.
{¶ 19} Under the third exception to the coming-and-going rule, an employee can
receive workers' compensation benefits if there is a causal connection between the
employee's injury and employment based on the "totality of the circumstances"
surrounding the accident. The factors relevant to this exception are "(1) the proximity of
the scene of the accident to the place of employment, (2) the degree of control the
employer had over the scene of the accident, and (3) the benefit the employer received
from the injured employee's presence at the scene of the accident." MTD Prods. at 70.
{¶ 20} The fourth exception to the coming-and-going rule is the special mission
exception. The special mission exception was discussed in Pierce v. Keller, 6 Ohio App.2d
25 (3d Dist.1966). In that case, the court explained that the special mission exception
exists when the injury is sustained by the employee while performing a special task,
service, mission, or errand for his employer, even before or after customary working
hours, or on a day on which he does not ordinarily work. Id. at 29. For the exception to
arise, the mission must be the major factor in the journey or movement, not merely
incidental thereto, and the mission must be a substantial one. Id.
{¶ 21} In the present case, appellant contends that reasonable minds could differ
as to whether the second exception, the special hazard rule; the third exception, the
totality-of-the-circumstances exception; and the fourth exception, the special mission
exception, apply. With regard to the special hazard rule, appellant contends that
reasonable minds could find that the very nature of Bone Dry's business required its
employees to travel in a manner greater than the general public. As indicated above, the
special hazard rule is applicable when (1) "but for" the employment, the employee would
No. 15AP-587 9
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. Because we find the
risk here is not distinctive in nature or quantitatively greater than the risk common to the
public, we will address that factor first. The Supreme Court's decision in Ruckman is
instructive. In Ruckman, the employees were drilling riggers who travelled from work site
to work site and had been injured while driving thereto. The Supreme Court found that
multiple factors worked in combination to make travel to the temporary drilling sites a
special hazard of employment, including the temporary nature of the job locations, the
constant change in locations, and the distance the riggers commuted to the remote work
sites, which were spread over a three-state area. The court found these distances were not
in line with work commutes common to the public. The court noted that, for most
employees, commuting distance to a fixed work site was largely a personal choice, any
increased risk due to a longer commute was more due to the employee's choice of
residence, and the risk associated with highway travel is not distinctive in nature from
those faced by the general public. However, the Supreme Court concluded that the
employees’ interstate and intrastate commutes in Ruckman were lengthy and increased
their exposure to traffic risks associated with highway travel.
{¶ 22} In the present case, appellant’s job locations were temporary and subject to
constant change, like the employees' job locations in Ruckman; however, appellant’s job
location on the date in question was in Powell. See Palette (to qualify under the special-
hazard exception, the focus is on the risk created by the employee’s traveling to the work
site on the date of the accident and not to the employee's general travel requirements).
The travel between Powell and appellant's Columbus home is between 30 to 45 minutes.
The houses that appellant had to service that day were all within the same subdivision.
Clearly, appellant’s work sites in Powell were not remote and did not require him to travel
an extraordinary distance or travel over a three-state area, like the employees in
Ruckman. The present circumstances do not resemble the extraordinary travel at issue in
Ruckman. See Barber at 273 (Ruckman is limited to those extreme circumstances). Thus,
we find appellant’s traveling in the present case was moderate, not unusual for a work
commute, and put him at no greater risk of injury than that faced by the general public.
Reasonable minds could only conclude that the common public assumed the same risks in
No. 15AP-587 10
highway work commutes. Therefore, viewing the evidence most strongly in favor of
appellant, there remains no genuine issue of material fact as to whether appellant's work
duties on the day in question created a special hazard. Given this finding, we need not
address the "but-for" factor of the special hazard rule.
{¶ 23} With regard to the totality-of-the-circumstances exception, appellant argues
that waterproofing, by its very nature, required the work to be done at the customer's site;
thus, travel was a necessary promotion and furtherance of Bone Dry's business interests.
Appellant also asserts that by assigning appellant three jobs on his day off, Bone Dry knew
that he would need to return home to get the paint brushes to further Bone Dry's
interests. Appellant also contends that Bone Dry received a benefit by his travelling to his
house to retrieve the paint brushes because he would save money for Bone Dry by reusing
the paint brushes he stored in a bucket of water at his home.
{¶ 24} Although we agree with appellant that it could be reasonably viewed that
Bone Dry would receive a benefit from appellant returning to his house to retrieve the
paint brushes necessary for the job, the location of the accident was not near either Bone
Dry's offices or appellant's eventual job location in Powell, and Bone Dry had no control
over the scene of the accident or the route appellant drove. Thus, we find reasonable
minds could not conclude that the totality-of-the-circumstances exception applies in the
present case.
{¶ 25} With regard to the special mission exception, appellant argues that
reasonable minds could find that his travel back to his house to get necessary supplies,
after receiving an unplanned job assignment on his day off, constituted a special mission.
We disagree. For the exception to arise, the mission must be the major factor in the
journey or movement, and not merely incidental thereto, and the mission must be a
substantial one. Pierce at 20. Furthermore, when the employee chooses the route, time,
and means of transportation in travelling from his home to his place of employment and
those factors are under his control, any injuries that arise in carrying out the employer's
instructions are a result of hazards that are similarly encountered by the public generally
and are not a result of exposure occasioned by the nature, conditions, or surroundings of
his employment. Id. at 29-30.
No. 15AP-587 11
{¶ 26} In the present case, we find no reasonable minds could find appellant's
actions fell within the special mission exception. Importantly, at the time of the accident,
appellant was not actually engaged in any special task, mission, or errand. He was merely
traveling to his house to get equipment before continuing to his job site. In other words,
appellant was not carrying out any special mission while he was driving home. See Seese
v. Admr., Bur. Workers' Comp., 11th Dist. No. 2009-T-0018, 2009-Ohio-6521, ¶ 42
(employee failed to demonstrate he qualified under the "special mission" exception,
pursuant to Pierce, because employee was not performing any task, mission, or errand for
his employer when he sustained his injury; he was merely driving to work, albeit on a day
he did not ordinarily work, in response to his employer's urgent need; there was no
special mission employee was carrying out while he travelled to work; commuting to work
on a day not regularly scheduled does not constitute a special mission). See also Wining v.
Unique Ventures Group, LLC, 7th Dist. No. 10 MA 111, 2011-Ohio-2474, ¶ 24 (finding a
special mission when the sole reason for the restaurant employee travelling on the road
on the evening in question was to deliver keys to the restaurant manager so that she could
lock the restaurant). Therefore, we find reasonable minds could only conclude that the
special mission exception did not apply here.
{¶ 27} For these reasons, we find that appellant was a fixed-situs employee subject
to the coming-and-going rule and was not entitled to participate in the workers'
compensation fund. Therefore, the trial court did not err when it granted summary
judgment to Bone Dry, and appellant's first, second, third, and fourth assignments of
error are overruled.
{¶ 28} Accordingly, appellant's four assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, J., concurs.
TYACK, J., dissents.
TYACK, J., dissenting.
{¶ 29} I respectfully dissent. As noted above, Mark Cunningham is appealing from
a ruling in the Franklin County Court of Common Pleas which denied him the right to
No. 15AP-587 12
participate in Ohio's Workers' Compensation system for injuries he incurred on May 2,
2013. He assigned four errors for our consideration.
{¶ 30} Cunningham was affiliated with Bone Dry Waterproofing, Inc. ("Bone Dry")
when he was injured in a motor vehicle accident. He applied for workers' compensation
benefits, but Bone Dry resisted his efforts to participate, even to the point of asking for a
jury trial on his right to participate after Bone Dry had lost at all administrative levels of
the Industrial Commission.
{¶ 31} Once the case was pending in common pleas court, Bone Dry requested
summary judgment arguing Cunningham was not an employee of Bone Dry, but an
independent contractor. Bone Dry had argued this theory at the administrative levels of
the Industrial Commission, but had had that argument consistently rejected. Bone Dry
argued before the common pleas court that even if Cunningham was an employee, his
injuries did not occur in the course of or arising out of his employment with Bone Dry.
{¶ 32} The trial court felt the parties had not adequately briefed the issue of
employee versus independent contractor and, therefore, did not grant summary judgment
as to that issue.
{¶ 33} The trial court found that Cunningham was "an employee with a fixed place
of employment" and then proceeded to address the applicability of the "coming-and-going
rule." The trial court's view of the facts were that Cunningham had just received a new
assignment of a work location in Powell, Ohio, from Bone Dry. Cunningham then began
driving toward home to pick up the paint brushes needed for the job. He was then to drop
his brother off before proceeding to the location of the new assignment. The fact that
Cunningham had been assigned to a specific location to do his next work for Bone Dry led
the trial court to find that Cunningham was a fixed-situs employee.
{¶ 34} The trial court felt that the fact that Cunningham could have gotten paint
brushes from Bone Dry's headquarters took him out of the benefit of the coming-and-
going rule. The trial court also indicated that since the injuries were the result of another
vehicle slamming into Cunningham's truck, the injuries did not arise out of his
employment. The trial court indicated that it made its ruling based upon the totality of
the circumstances.
No. 15AP-587 13
{¶ 35} A totality of the circumstances analysis is rarely consistent with the granting
of summary judgment. A trial court judge is required to construe the contested facts most
strongly in favor the nonmoving party. If there are material facts before the trial court
which indicate that summary judgment may not be appropriate, the trial court has to
overrule the motion for summary judgment.
{¶ 36} Counsel for Bone Dry argues that no material facts were in dispute. Counsel
submits that no special hazard or mission applied to "Cunningham's traveling on public
roads, miles from his job assignment, in the process of taking his brother home, before
commencing his actual travel to his work assignment." Counsel asserts that Cunningham
was barred from participating in the workers' compensation system by R.C. 4123.01(C),
which reads:
"Injury" includes any injury, whether caused by external
accidental means or accidental in character and result,
received in the course of, and arising out of, the injured
employee's employment.
{¶ 37} Counsel acknowledges that Cunningham routinely drove his personal
vehicle when going to job sites to do work for Bone Dry. The new work location in this
case was in Powell, Ohio, in Delaware County. Cunningham received the job assignment
while present at the offices of Bone Dry on Outerbelt Street on the east side of Columbus.
Paint was provided by Bone Dry immediately before he left the headquarters offices.
Cunningham was on the way to his home to acquire paint brushes provided by Bone Dry,
but stored at Cunningham's home when the collision occurred. Cunningham's brother
also was in the truck, having not been delivered home yet. The presence of Cunningham's
brother had no effect on the route between Bone Dry's headquarters and Cunningham's
home. The wreck occurred in the south end of Columbus, not directly between the offices
of Bone Dry and the Delaware County work site. A supervisor at Bone Dry was aware that
the brother needed to be taken home before the work in Powell commenced.
{¶ 38} Distilling these facts, Cunningham was on the way to his house to get
company paint brushes to use with the company paint to do the company paint job in
Delaware County. Cunningham was proceeding from the company offices to the place he
kept some of the company equipment when the collision occurred. Cunningham had not
yet deviated from the course of travel planned to take himself home to get the company
No. 15AP-587 14
equipment. His brother's presence in the truck had nothing to do with the route or
collision, and thus nothing to do with the injuries being suffered.
{¶ 39} Cunningham was not paid for travel time, but he was paid for travel
expenses, such as fuel and wear and tear on his truck. Cunningham was paid $50 per
paint job. I note again that Cunningham's brother was with Cunningham at company
headquarters when Cunningham accepted the job in Delaware County. Thus, Bone Dry
was on notice that the brother had to be taken home before Cunningham could proceed to
Delaware County to do the painting. In short, Cunningham had to make the trip to his
brother's home to free Cunningham up to do the work assigned.
{¶ 40} Given the facts set forth above, genuine issues of material fact existed. The
trial court should have overruled the motion for summary judgment, as explained in more
detailed below.
{¶ 41} The first assignment of error addresses the issues of whether Cunningham
was a fixed-situs employee. The trial court interpreted Ruckman v. Cubby Drilling, Inc.,
81 Ohio St.3d 117 (1998), to mandate that Cunningham be considered a fixed-situs
employee. The two paragraphs of the syllabus read:
1. In determining whether an employee is a fixed-situs
employee and therefore within the coming-and-going rule, the
focus is on whether the employee commences his or her
substantial employment duties only after arriving at a specific
and identifiable work place designated by his employer. That
focus remains the same even though the employee may be
reassigned to a different work place monthly, weekly, or even
daily. Despite periodic relocation of job sites, each particular
job site may constitute a fixed place of employment.
2. A fixed-situs employee is entitled to workers' compensation
benefits for injuries occurring while coming and going from or
to his place of employment where the travel serves a function
of the employer's business and creates a risk that is distinctive
in nature from or quantitatively greater than risks common to
the public. (Littlefield v. Pillsbury Co. [1983], 6 Ohio St.3d
389, 6 OBR 439, 453 N.E.2d 570, paragraphs one and two of
the syllabus, limited and modified.)
{¶ 42} I feel there is a genuine issue of material fact under each paragraph of the
syllabus. A trier of fact could find that a significant or substantial part of Cunningham's
duties as a painter included acquiring the paint and paint brushes necessary for him to do
No. 15AP-587 15
painting. Thus, Cunningham could be found to have commenced substantial employment
duties when he started to go directly from Bone Dry headquarters to his home to acquire
Bone Dry's paint brushes. Thus, he could be found not to be a fixed-situs employee.
{¶ 43} Further, the storing of Bone Dry's paint brushes previously used allowed
Bone Dry to save money on the cost and purchase of paint brushes. Thus, Bone Dry
received a benefit.
{¶ 44} Finally, the more a person drives in a major metropolitan area, the greater
the risk of bad things happening. Whether the risk is quantitatively greater than risks to
the public is an analysis to be made only if the trier of fact finds Cunningham to be a
fixed-situs employee under the terms of paragraph one of the syllabus of Ruckman.
{¶ 45} In light of the above, the first, second, and fourth assignments of error
should be sustained.
{¶ 46} Also, in light of the above, I believe that a trier of fact could find that travel
was a fundamental part of Cunningham's job duties. Once he received an assignment to
do painting, he had to travel to the place to be painted. Bone Dry paid expenses related to
the travel.
{¶ 47} As indicated in Ruckman, an employee who travels to the premises of a
customer of the employer generally serves a purpose of the employer's business. Id. at
121. Just as the riggers in Ruckman were promoting the rigger part of the business of
Cubby Drilling, Inc., the painters for Bone Dry were furthering Bone Dry's business when
they went to paint buildings served by Bone Dry.
{¶ 48} The third assignment of error should also be sustained.
{¶ 49} Since the majority of the panel does not vacate the summary judgment in
this case, I respectfully dissent.
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