I respectfully dissent from the decision reached by the majority. The undisputed facts of this case do not give rise to any of the exceptions allowing participation in the Workers' Compensation Fund for injuries incurred while traveling to or from work.
Ohio's workers' compensation statute covers 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). 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 there is a causal connection between an employee's injury and his or her employment, either through the activities, the conditions or the environment of the employment. MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, citing Bralley v. Daughtery (1980), 61 Ohio St.2d 302.
For an injury to be compensable under the Workers' Compensation Act, the claimant must meet both prongs of the test established in R.C. 4123.01(C). The injury must be received in the course of as well as arise out of the employment. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277.
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. Id. at 68. To grant compensation in light of the coming-and-going rule, as it has come to be known, is only allowed under certain well defined exceptions. *Page 651
The Ohio Supreme Court spells out the exceptions to this general rule quite clearly in MTD Products, supra. The coming-and-going rule does not operate as a complete bar to an employee who is injured commuting to and from work where: 1) the injury occurs within the zone of employment; 2) the employment creates a special hazard; or 3) there is a causal connection between the employee's injury and employment based on the totality of circumstances surrounding the accident. Id. at 68-70.
The zone of employment has been extended to include areas off the employer's premises if the worker has been injured in a place where the employer has control of the conditions and the employee has no option but to pursue a given course. Morris v. City of Cleveland (1945), 44 Ohio Law Abs. 215. In the case at bar, plaintiff-appellee, Robert Meszaros, admits that he could have taken an alternate route from his parking space to his place of employment. More importantly, there is no contention as to who had ownership and/or control of the property where appellee was injured. Defendant-appellant, Legal News Publishing, did not own or control the property at issue. In fact, appellee was given a key by his employer to unlock a gate that led to a public sidewalk that led to Legal News Publishing. Appellee chose to walk through the Digital Magic driveway to avoid the locked gate. Appellee had no reason to be on the Digital Magic driveway other than mere convenience. Accordingly, the zone of employment exception is not applicable in this case.
The special hazard exception applies where: 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. MTD Products, supra, at 68. In any case not involving a frolic or detour in the course of one's employment, the but for test will be met. Appellee would not have been injured in Digital Magic's lot but for going to work. The second prong of the test, however, is not met in this case. The risk appellee faced in walking across a parking lot and driveway was not distinctive in nature or quantitatively greater than the risk common to the public. Every person choosing to cross that lot faced the same risk of slipping and falling on the ice as appellee did.
The final exception allows coverage where there is a causal connection between the employee's injury and employment based on the totality of circumstances surrounding the accident. Three factors are relevant under this test: 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. Id. at 70, citing Fisher v. Mayfield, supra, at *Page 652 277; Lord v. Daugherty (1981), 66 Ohio St.2d 441, at syllabus.
While it is undisputable that the accident occurred proximate to appellee's place of employment, I cannot find that the second and third prongs of the totality of circumstances exception have been met. As discussed above, appellant did not have control over the scene of the accident. The property where appellee fell was owned and controlled by a third party. Further, an employee arriving to begin his day's work is not yet performing any service for the benefit of his employer. MTD Products, supra, at 70. Under the facts of this case, the appellee cannot meet the criteria established for this exception to apply.
The majority also makes reference to a recent decision from this court in Fogaras v. University Hospitals of Cleveland, et al. (1998), 129 Ohio App.3d 653. The majority interprets Fogaras to stand for the proposition that employer control over the area in which the injury occurred is not required to extend the zone of employment. To the contrary, Judge O'Donnell, writing the majority opinion, determined that a similar injury (employee injured while walking from parking lot to place of employment) had occurred within the zone of employment because there was a degree of control. Id. at 656. Fogaras is clearly distinguishable from the instant case in that Fogaras' injuries occurred when she tripped and fell in a pedestrian walkway adjacent to the parking garage owned and operated by University Circle, Inc., a non-profit corporation which University Hospitals is a member. The hospital exercised a degree of ownership and control of the area in question by participating as a member of the same organization that provides adjacent parking facilities for its employees and allows for payroll deductions to pay for the parking. Id.
In addition, Fogaras seems to stand alone in that the vast majority of similar cases denying participation in the fund under the coming-and-going rule decided by this court are in concert with Judge Nahra's dissent in Fogaras. The following decisions most recently decided by this court are indistinguishable to the case sub judice. See Vincent v. Administrator, Bureau of Workers' Compensation, et al. (May 27, 1999), Cuyahoga App. No. 75414, unreported; Deborah Coleman v. University Hospitals of Cleveland, et al. (Dec.16, 1999), Cuyahoga App. No. 75383, unreported; and Weiss v. University Hospitals of Cleveland, et al. (Apr. 20, 2000), Cuyahoga App. No. 77175, unreported.
The majority goes to great lengths to distinguish the facts of the present case from the controlling cases just recently decided by this court. See Vincent, Coleman, Weiss, supra. The crux of the majority's reasoning to extend the zone of employment is based on the ill conceived notion that appellee had limited options to pursue in his course of travel to and from work. The majority *Page 653 then bases its holding on a case not extending the zone of employment where this court made reference to narrowly construed exceptions involving specific situations where the employer created conditions that gave the employee no choice as to how to travel to one's place of employment. Weiss, supra, at 7. (Emphasis added.) The Weisscourt was more focused on the fact that the employer did not have control over the area where the injury occurred. Id. at 8.
As stated earlier, appellee voluntarily chose his course of travel to work out of convenience. He had other courses he could have taken. More importantly, appellant had no control over the area where appellee was injured. Appellant had no rights to enter the lot of a third party and remove snow and ice or make any types of repairs for that matter. This court should not extend, or add additional exceptions to the zone of employment rule where the area being traveled belongs to a third party and the employee has other options.
For these reasons, I would reverse the trial court's grant of summary judgment.