I respectfully dissent from the majority opinion because the facts of this case do not support a finding that appellee was within the "zone of employment" and, even if she was, she is not automatically entitled to participate in the workers' compensation system.
The majority finds that appellee, who was off her employer's premises when injured, is entitled to participate in the workers' compensation system merely because she was within the zone of employment. This assertion is unsupported by law. In Bralley v.Daugherty (1980), 61 Ohio St.2d 302, 303, 15 O.O.3d 359, 360,401 N.E.2d 448, 450, the Ohio Supreme Court stated:
"As a general rule, where an employee, having a fixed and limited place of employment, sustains an injury while traveling to and from his place of employment, such injury does not evidence the required causal connection to the employment; it therefore does not rise out of and in the course of his employment and is not compensable."
Because of this general rule, an employee injured while commuting to work must demonstrate a connection between the specific injury and the employment to be entitled to participate in the workers' compensation system. Being within *Page 657 the zone of employment does not necessitate a finding that the employee is automatically entitled to compensation. In Bralley, the court stated:
"An employee is no longer subject to strict application of this general rule once he reaches the premises of his employer. Injuries sustained while the employee is within this `zone of employment' may be compensable under the Act." (Emphasis added.)61 Ohio St.2d at 304, 15 O.O.3d at 360, 401 N.E.2d at 450.
In this case, appellee was not within the zone of employment because she was neither on appellant's premises at the time of the injury nor was she required to park in the garage in which she sustained injuries. In Brown v. Univ. Hospitals of Cleveland (Mar. 20, 1997), Cuyahoga App. No. 71087, unreported,1997 WL 127192, this court determined that a University Hospitals' employee was not within the zone of employment while injured in a University Circle, Inc. parking lot while on her way to work. The majority rejects this recent determination without explanation, relying instead upon a thirteen-year-old case, Sloss v. Case W.Res. Univ. (1985), 23 Ohio App.3d 46, 23 OBR 90, 491 N.E.2d 339, to state that appellee was within the zone of employment while injured in the parking lot. Moreover, the majority neglects to note that after determining that the employee was within the zone of employment, this court remanded the case for a determination of "[w]hether the risk encountered by appellant was distinctive in nature or quantitatively greater than the risk common to the public." Sloss, 23 Ohio App.3d at 51, 23 OBR at 95,491 N.E.2d at 345.
Even if the majority opinion is correct in its determination that appellee was within the zone of employment, it is wrong to automatically allow appellee to participate in the workers' compensation system for injuries sustained off her employer's premises. In Brown v. B.P. Am., Inc. (1993), 85 Ohio App.3d 194,196, 619 N.E.2d 479, 480-481, this court stated:
"Case law prior to MTD Products, supra, allowed claims when an employee was not on the employer's premises but was within the so-called `zone of employment.' See, e.g., Frishkorn v. Flowers (1971), 26 Ohio App.2d 165, 55 O.O.2d 310, 270 N.E.2d 366 (claim allowed for employee injured in communal parking lot on his way back to work at a store in the mall); Indus. Comm. v. Henry (1932), 124 Ohio St. 616, 180 N.E. 194 (claim allowed for employee killed on railroad tracks adjacent to employer's premises while returning to work after meal). However, MTDProducts indicates that injuries occurring off the employer's premises but within the `zone of employment' will be compensable henceforth only when the employment itself created a special hazard. The court stated the requirements for a special hazard as follows, quoting from the syllabus of Littlefield v. PillsburyCo. (1983), 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570: *Page 658
"`(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.'"
Since our opinion in Brown, this court has consistently followed the rule that an employee injured off the employer's premises will be compensated for injuries within the zone of employment only where the employee is subject to a special hazard. See Brown v. Univ. Hospitals of Cleveland (Mar. 20, 1997), Cuyahoga App. No. 71087, unreported; Beharry v. ClevelandClinic Found. (Nov. 22, 1995), Cuyahoga App. No. 68050, unreported, 1995 WL 693103; Zelenak v. May Co. (Apr. 7, 1994), Cuyahoga App. No. 64940, unreported, 1994 WL 118368.
For these reasons, I would reverse the trial court's grant of summary judgment in favor of appellee because appellee was not in the zone of employment. If appellee was within the zone of employment, she has made no showing that she was subject to a risk distinctive in nature or quantitatively greater than that of the public and is therefore not entitled to participate in the workers' compensation system.