Littlefield v. Pillsbury Co.

453 N.E.2d 570, 6 Ohio St. 3d 389, 6 Ohio B. 439, 1983 Ohio LEXIS 843

• Court: Ohio Supreme Court
• Decided: August 31, 1983
• Docket: No. 82-1488
• Status: Published

Opinions

Celebrezze, C.J.

Appellees contend that compensation is precluded because the accident occurred on a public street when Littlefield returned from lunch. However, we conclude, for the following reasons, that Littlefield’s claim is not barred.

Our analysis begins with the fundamental requirement in R.C. 4123.01(C) that a compensable injury must occur in the “course of, and arising out of, the injured employee’s employment.” The statutory mandate has been clarified and defined over the years by the judiciary. This court set forth “[t]he 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 (1980), 61 Ohio St. 2d 302, 303 [15 O.O.3d 359]; Indus. Comm. v. Weigandt (1921), 102 Ohio St. 1; Indus. Comm. v. Gintert (1934), 128 Ohio St. 129; Fox v. Indus. Comm. (1955), 162 Ohio St. 569 [55 O.O. 472],

The determination of whether an injury has occurred in the “course of and arising out of employment” has been aided by the “going and coming” rule.¹ “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 arise out of and in the course of his employment and is not compensable.” Bralley v. Daugherty, supra, at 303-304; Lohnes v. Young (1963), 175 Ohio St. 291 [25 O.O.2d 136]; Simerlink v. Young (1961), 172 Ohio St. 427 [17 O.O.2d 376]; Indus. Comm. v. Gintert, supra; Indus. Comm. v. Baker (1933), 127 Ohio St. 345.

The “special hazard or risk” exception is a means of avoiding the strict application of the general rule. Accordingly, an employee will be entitled to compensation, if the employment creates a special risk, for injuries sustained in the scope of that risk. A special risk may be on the employer’s premises or involve the necessary means of access to the premises, even when the access is not under the employer’s control or management. Parks v. Workers’ Compensation Appeals Bd. (1983), 33 Cal. 3d 585, 190 Cal. Rptr. 158, 660 P.2d 382. Thus, when the injury occurs on the only route or at least on the normal route, which the employees must use to reach the premises, the special hazards of that route may become hazards of the employment. See 1 Larson, The Law of Workmen’s Compensation (1982), Section 15:13.

This exception has been applied by other jurisdictions in left-turn cases. For example, in Pacific Indemn. Co. v. Indus. Acc. Comm. (1946), 28 Cal. 2d 329, 170 P.2d 18, the employee’s route to work required a left-turn across oncoming traffic to enter the company parking lot. The court found that the required left turn was a special risk of the employment and held that the injury occurred in the course of employment. Similarly, the court applied the exception in another left-turn situation on a public highway in Greydanus v. Indus. Acc. Comm. (1965), 63 Cal. 2d 490, 47 Cal. Rptr. 384, 407 P.2d 296.

In Husted v. Seneca Steel Service, Inc. (1976), 41 N.Y.2d 140, 391 N.Y. Supp. 2d 78, the claimant’s car was struck on a public highway as he was turning into his employer’s parking lot. The court concluded that a special hazard exists for making a left turn across traffic to the only means of access to the premises. The court stated that “the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation * * * [w]hen the employee advances to the point where he is engaging in an act or series of acts which are part and parcel of the entránce into the employment premises, the test of compensability is whether there is such a relationship existing between the accident and the employment as to bring the former within the range of the latter * * * or, stated differently, whether the accident happened as an incident and risk of employment * * *.” Id. at 144.

Other states have applied the exception to post-workday injuries occurring off the employer’s premises. For example, the Supreme Judicial Court of Maine held that the accident, which occurred as the claimant was leaving the employer’s private road and making a right turn onto a public road, was compensable because the high snow banks created a blind exit. Oliver v. Wyandotte Industries Corp. (Me. 1973), 308 A.2d 860, 863. The court noted that “ ‘whenever the hazards of employment spill over the boundary line and injure an employee on his way to work, his injury arises within the statutory space limitations of the employer’s premises and is compensable as having arisen in the course of the employment.’ ” Id., quoting from Nelson v. St. Paul Dept. of Edn. (1957), 249 Minn. 53, 58, 81 N.W. 2d 272.

Although Ohio has not specifically enunciated the special hazards exception, we have said that a compensable injury need not occur on the premises. “Compensability, however, is not in every instance limited to injuries sustained on the employer’s premises.” Bralley v. Daugherty, supra, at 304.

In Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693 [36 O.O. 282], this court stated in paragraph three of the syllabus that “[t]o be entitled to workmen’s compensation, a workman need not necessarily be injured in the actual performance of work for his employer. It is sufficient if he is injured in a pursuit or undertaking consistent with his contract of hire and which in some logical manner pertains to or is incidental to his employment.”

Ohio courts have also concluded that an employee is no longer subject to the strict application of the general rule excluding compensation for going and coming to work once the zone of employment is reached. Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St. 2d 18 [39 O.O.2d 11]; Gregory v. Indus. Comm. (1935), 129 Ohio St. 365 [2 O.O. 370]; Kasari v. Indus. Comm. (1932), 125 Ohio St. 410. Although the injury occurred on a public street, maintained by the employer, this court found that the claimant had reached the zone of employment in Indus. Comm. v. Barber (1927), 117 Ohio St. 373. The court allowed compensation and noted that the employee had no option but to pursue a given course. The court stated that compensation should be allowed “where the conditions under the control of an industrial plant are such that the employee has no option but to pursue a given course ■with reference to such conditions and environments * * * [and] when an employee receives an injury attributable to such conditions and environments there is a direct causal connection between his employment and his injury * * *.” Id. at 381.

Young’s treatise on Ohio workers’ compensation law states that “the theme of the decisions which have considered the geography aspects of course of employment are uniform in noting that the environment of the employment may extend out beyond the premises of the employer and that the additional territory is described as being within the zone of employment. Environment means the capability of producing injury and it is usually described as the existence of hazards that are peculiar to the employment as contrasted with hazards that are likely to exist anywhere and bear no relationship to the employment.” Young, Workmen’s Compensation Law of Ohio (2 Ed. 1971) 83, Section 5.7.

Young notes that the control of the area or zone in which the injury occurred has been a significant factor in establishing the injury occurred in the course of the employment. However, a hazard may exist in an area beyond the control of the employer. In appropriate cases, a special hazard may “form a basis for causation to satisfy the requirement of the component, arising out of employment.” Id.

A special hazard peculiar to the employment was the basis for awarding compensation in an earlier Ohio case. Justice Robert E. Holmes stated that “I believe that the decision in Indus. Comm. v. Henry (1932), 124 Ohio St. 616, was primarily based upon the rationale of a ‘special hazard’ being present.” Baughman v. Eaton Corp. (1980), 62 Ohio St. 2d 62, 64 [16 O.O.3d 45] (dissenting opinion). In Henry, compensation was allowed when an employee sustained fatal injuries in crossing a railroad track which was immediately adjacent to the sole means of ingress and egress to his employer’s plant.

Thus, this court has found exceptions to the strict application of the going and coming rule. Compensation has been allowed for injuries which have occurred off the premises when there has been a causal connection between the injuries and the employment.

Based upon the aforementioned cases, we join other jurisdictions in adopting a special hazard rule which allows compensation for injuries occurring off the work premises, before or after work, if the injury occurs because of the hazard created by the employment. This position is consistent with the test this court has used to determine the right to compensation, whether a causal connection exists between an employee’s injuries and the activities, conditions or environment of the employment. Weigandt, supra. We agree with the New York Court of Appeals that the mere fact that an accident took place on a public street does not ipso facto negate the right to compensation. Husted, supra. Instead the totality of the circumstances should be considered when applying the causal connection test of Weigandt.

To aid in determining whether the special hazard rule should apply, we adopt the two-prong test devised by the California Supreme Court. General Ins. Co. v. Workers’ Comp. Appeals Bd. (1976), 16 Cal. 3d 595, 128 Cal. Rptr. 417, 546 P.2d 1361, held that the rule will apply “(1) if ‘but for’ the employment, the employee would not have been at the location where the injury occurred and (2) if the ‘risk is distinctive in nature or quantitatively greater than risks common to the public.’ ” Parks, supra, at 160, quoting General Ins. Co., at 601.

Applying these principles to the case sub judice, the facts are similar to those which constituted a special hazard in Henry, supra. As stipulated by the parties, Littlefield and his co-worker chose the closest available lunch facility, approximately one eighth of a mile from the plant. They returned by the necessary and most direct possible route. As they waited to make a left turn, with the left-turn signal on, into the only means of ingress and egress to the plant, the car was struck from the rear. Thus, in both cases the accident occurred immediately adjacent to the sole means of ingress and egress to the employer’s plant.

Furthermore, applying the California test for a special hazard, the first prong of a test is met. It is clear that “but for” his employment, Littlefield would not have been making a left turn into the plant. The second prong of the test is also satisfied because, although the risk attendant to the busy road was common to the general public using it, Littlefield’s risk was peculiar and to an abnormal degree. That is, his risk was “quantitatively greater” than that to which other motorists occasionally driving down the road are subjected. 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.

This conclusion is buttressed by the fact that Littlefield had already reported for work and was merely on an overdue break compared to the claimants in other jurisdictions, which apply the special hazard rule, who were going to work or leaving after the workday. Littlefield was scheduled to work a twelve-hour day, had been required to work through a fifteen minute paid morning break as well as an unpaid thirty minute lunch break. The stipulations also indicate that “[Pillsbury] occasionally paid directly for beverages and food at this restaurant on behalf of its employees who worked extra hours, and on other occasions at the discretion of [Pillsbury].”

In comparison, the record in Henry, supra, indicates that the employee arrived for work about 2:00 a.m. After about an hour on the job, he left the premises for breakfast at a nearby restaurant and the accident occurred as he returned to work. The off-premises breakfast practice was acquiesced in by the employer as it contributed to the workers’ efficiency. The court concluded that it was a custom incidental to the employment. Id. at 620-621. Thus, compared to Henry, Littlefield had worked many more hours before taking an overdue break. Therefore, the break should have contributed more to his productivity than to the worker in Henry and could similarly be considered incidental to the employment.

We are mindful that R.C. 4123.95 requires that sections 4123.01 to 4123.94, inclusive, be liberally construed in favor of employees. Therefore, we agree with courts of other jurisdictions which have adopted the special hazard rule. That is, an employee will be entitled to workers’ compensation benefits when the employment creates a special hazard and the injuries are sustained because of that hazard. When a special hazard causes an injury to an employee on his way to or from work, the injury is compensable as arising out of the employment. See R.C. 4123.01(C) and Weigandt, supra.

The facts of this case satisfy the two-pronged test for applying the special hazard rule. Therefore, Littlefield should not be precluded from recovering compensation. Accordingly, we reverse the judgment of the court of appeals.

Judgment reversed.

Sweeney, C. Brown and J. P. Celebrezze, JJ., concur. C. Brown, J., concurs separately. W. Brown, Locher and Holmes, JJ., dissent.

1 The going and coming rule has been criticized as having “produced many harsh results which led courts to carve out numerous exceptions to it.” Hammond v. Great Atlantic & Pacific Tea Co. (1970), 56 N.J. 7, 11, 264 A. 2d 204. Furthermore, it has been suggested that the rule should be abandoned altogether as being out of touch with the dangers inherent in today’s commuter-oriented society in which travel to and from work may be more dangerous than the work itself. Id. at 13.