I respectfully dissent from the majority's disposition of Assignments of Error Nos. One and Two.
In its first and second assignments of error defendant claims that the trial court erred when it did not grant its motion for directed verdict and that the verdict for plaintiff was against the manifest weight of the evidence.
A claimant's injury is compensable under the workers' compensation laws if the individual sustained it "in the course of, and arising out of, the injured employee's employment." R.C.4123.01(C); see, also, R.C. 4123.54; Primiano v. Ohio Bell Tel.Co. (May 5, 1986), Cuyahoga App. No. 50495, unreported, 1986 WL 4962. An activity occurs in the course of claimant's employment if it is part of her employment duties or reasonably incidental. An injury is not compensable if it is remote to employment and lacks a nexus to that employment. In determining whether a nexus exists, relevant factors to be taken into consideration include: (1) the proximity of the accident scene to the place of employment; (2) the degree of control exercised by the employer over the accident site; and (3) the employer's benefit received from the employee's presence at the accident site. Primiano,supra. Control is a relevant factor but is not dispositive in determining whether the injury occurred in the course of the claimant's employment. Primiano, supra.
It has been the general rule that when an employee sustains an injury while travelling to or from a fixed place of employment, that injury is not compensable under workers' compensation law. Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 N.E.2d 448. In such a situation an employee generally is not considered to be within the scope or course of his or her *Page 580 employment. In Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570, the Supreme Court carved out an exception to the general rule enunciated in Bralley.Littlefield held that an off-site injury sustained while travelling to or from work may be considered to be within the course and scope of employment if the following two-part test is met: (1) the employee would not have been at the location where the injury occurred "but for" the employment, and (2) the risk involved is distinctive in nature or quantitatively greater than the risks common to the public.
In Littlefield the plaintiff, returning from a sanctioned lunch break, was injured on a public road as he sat waiting to turn left into his employer's premises. The Supreme Court applied its two-prong test and found that but for his employment, Littlefield would not have been making the left hand turn into the company. Secondly, although the risk attendant to travelling the busy road was shared by the public, Littlefield's risk was "quantitatively greater than that to which other motorists occasionally driving down the road are subjected."Littlefield, 6 Ohio St.3d at 394, 6 OBR at 443,453 N.E.2d at 575.
"The regular exposure to the common risk plus the risk of making a left turn creates a greater degree of risk and sustains the causal relationship between the employment and the accident resulting from the risk."
Defendant-appellant argues that the trial court erred in submitting the issue of plaintiff's entitlement to participate in the Workers' Compensation Fund to the jury. Defendant argues that the evidence demonstrated as a matter of law that plaintiff did not satisfy the two-prong Littlefield test.
I believe that the evidence in the present case demonstrated that the plaintiff was injured off the work premises after work but that the accident occurred six-tenths of a mile from the company's gate on a road that only provided a means of ingress and egress to the employer's plant. Testimony further revealed that defendant-LTV placed a sign outside its gates which regulated the heavy truck traffic entering the plant from the access road. Testimony showed that the access road was used mostly by employees entering or exiting the plant and by trucks being driven into the plant. Plaintiff testified that the site at which she was injured was the route she travelled in entering and exiting the plant.
Defendant-appellant argues that plaintiff's injury occurred on a public street and therefore indicates that the accident site was wholly outside of its control. Public streets and sidewalks, neither owned nor controlled by any private employer have been found to be within the zone of employment.Littlefield, supra; Sloss v. Case Western Reserve Univ. (1985),23 Ohio App.3d 46, 23 OBR 90, 491 N.E.2d 339. Defendant also asserts that the *Page 581 accident was the result of the truck driver's negligence, again wholly outside of its control. The point is not well taken. The case law clearly indicates that it is not a question of the other driver's negligence but rather a question of whether a claimant who is injured off the premises satisfies the two-prongLittlefield test.
When there is sufficient evidence presented of an essential issue, which if believed, would permit reasonable minds to reach different conclusions, it is the duty of a trial court to submit the issue to the jury. O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896, paragraph four of the syllabus. I believe that there was sufficient evidence presented which would permit reasonable minds to come to different conclusions whether plaintiff would have been at the site of the accident "but for" her employment and whether the risk attendant to the intersection was "quantitatively greater" than that to which motorists occasionally driving down the road are subjected.
I do not believe the present facts to be analogous to those cases where judgment has been entered as a matter of law for the defendant employer. See, e.g., Kopera v. Sheller-Globe (Oct. 31, 1986), Fulton App. No. F-86-9, unreported, 1986 WL 12234 (after work, plaintiff fell in an alleyway which had just received snow as did all other areas of the city. The alleyway was not the only means of ingress and egress to plaintiff's employment but rather plaintiff's choice as a route home.); Monjar v. Mayfield (1987), 35 Ohio App.3d 76, 519 N.E.2d 681 (plaintiff injured while driving on a public highway to the first of her three nightly cleaning jobs).
The trial court did not err in submitting the issue to the jury.
Further, there was substantial credible evidence presented which indicated that plaintiff's accident occurred in close proximity to her place of employment; that LTV had some control over the access road, i.e., its posted sign which regulated truck traffic; and that the employer benefitted from plaintiff's presence at the site because it was the way by which she entered and exited the plant. There was substantial evidence submitted by way of testimony which clearly showed that plaintiff would not have been at the intersection but for her employment. Further, the plaintiff faced a peculiar risk by having to stop at an intersection on a regular basis where large tractor trucks routinely had to make sweeping left turns onto the road where she had to wait. There clearly was evidence presented which would allow a jury to conclude that plaintiff's repeated exposure to this uncommon risk provided the necessary nexusLittlefield requires between employment and the accident resulting from the risk. *Page 582
The jury's finding that plaintiff was entitled to workers' compensation was not against the manifest weight of the evidence. I believe that defendant's first and second assignments of error should be overruled.