Lowe v. Cox Paving, Inc.

941 N.E.2d 88, 190 Ohio App. 3d 154
CourtOhio Court of Appeals
DecidedAugust 16, 2010
DocketNo. CA2010-03-005
StatusPublished
Cited by6 cases

This text of 941 N.E.2d 88 (Lowe v. Cox Paving, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowe v. Cox Paving, Inc., 941 N.E.2d 88, 190 Ohio App. 3d 154 (Ohio Ct. App. 2010).

Opinion

Ringland, Judge.

{¶ 1} Plaintiff-appellant, Joshua L. Lowe, appeals a decision of the Brown County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Cox Paving, Inc. and the Ohio Bureau of Workers’ Compensation.

{¶ 2} Cox Paving hired appellant in 2005. Appellant was assigned to the same work crew as William Merz. Appellant’s primary duties at the company involved raking pavement. Merz was employed by Cox to operate the roller, which smoothed pavement after being raked. Cox Paving suggests that appellant and Merz socialized regularly. Cox Paving claims both were heavy drinkers and [156]*156would often play video games, watch television, and drink beer at appellant’s home. Additionally, when Merz’s girlfriend would throw him out of his home, appellant would allow Merz to stay at his residence. Appellant disputes their social interaction. Appellant acknowledges that Merz would sleep at his home from time to time, but claims they were not otherwise socially active.

{¶ 3} On November 5, 2007, appellant and Merz met at the company office to obtain their assignment for the day. After receiving an assignment to repave an apartment subdivision in Brown County, appellant and Merz rode together in a company truck to the site. Appellant drove the vehicle. Merz brought a cooler filled with beer. According to Cox Paving, both drank the beer on the way to work. Cox claims that this was a regular practice for them. Appellant claims he did not drink that day.

{¶ 4} At lunch time, appellant was sent to pick up his supervisor’s lunch using the company truck. Upon appellant’s return, Merz went to the truck to retrieve another beer from the cooler. Appellant was sitting in the truck talking to his girlfriend on his cell phone. Only two empty cans remained in the cooler. Believing that appellant had consumed the last two beers, Merz demanded that appellant go buy more beer. Appellant remained on his cell phone and did not respond. Merz left the truck and returned to talk to other crew members.

{¶ 5} A factual dispute exists regarding an assault that occurred between appellant and Merz. According to appellees, after finishing the conversation with his girlfriend, appellant walked over to where Merz was speaking with crew members. Appellant shoved Merz, asking, “What is your problem?” Merz then shoved appellant and told appellant to go buy more beer to make up for the two that appellant had drunk while picking up lunch for his supervisor. Appellant responded by telling Merz not to put his hands on him again. Merz punched appellant in the face and walked away.

{¶ 6} Appellant claims to have no memory of the encounter. Appellant states that he remembers everybody returning to work and then “the next day waking up at home with no clue of what had happened.” However, appellant claims, according to his brother, that the assault was unprovoked, and Merz struck him with something.

{¶ 7} When appellant did not get up immediately after the incident, Merz walked away from the job site to a nearby gas station. He purchased beer and called a friend to pick him up. That evening, Merz tried to contact appellant to apologize, but appellant’s girlfriend answered and told him that appellant had nothing to say.

{¶ 8} On November 6, 2007, Cox Paving fired Merz for drinking while on the job. Cox subsequently fired appellant for, among other things, refusing to [157]*157submit to a post-accident drug screen. Appellant filed a workers’ compensation claim for injuries sustained from the incident with Merz. The bureau denied appellant’s claim, and appellant appealed the matter to the common pleas court. Appellees filed for summary judgment, which was granted by the trial court. Appellant timely appeals, raising two assignments of error.

{¶ 9} Assignment of Error No. 1:

{¶ 10} “The trial court erred in granting appellees’ motion for summary judgment, where the undisputed evidence demonstrated that appellant sustained injuries when a coworker physically attacked him. The trial court incorrectly determined that injuries sustained by appellant were not compensable solely because they were inflicted willfully and deliberately by a co-employee.”

{¶ 11} Assignment of Error No. 2:

{¶ 12} “The trial court failed to apply statutory and well settled precedent to determine whether appellant was in the course and scope of his employment at the time he was injured and instead incorrectly focused on whether appellant’s attacker was within the course and scope of his employment.”

{¶ 13} Appellant essentially argues the same facts under both assignments of error. Accordingly, we will address appellant’s assignments of error together. Appellant claims that a factual dispute exists regarding the events of November 5, 2007, and as a result, summary judgment is improper in this case.

{¶ 14} On appeal, a trial court’s decision granting summary judgment is reviewed de novo. Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296, 708 N.E.2d 285. Summary judgment is proper when there is no genuine issue of material fact remaining for trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party’s favor. See Civ.R. 56(C); see also Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46. The movant bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material-fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Once this burden is met, the nonmovant has a reciprocal burden to set forth specific facts showing a genuine issue for trial. Id.

{¶ 15} To receive workers’ compensation benefits for an injury, an employee must establish that the injury resulted in the course of and arising out of his employment; both requirements must be met. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271; R.C. 4123.01(C). An injury arises out of the employment when a sufficient causal connection exists between the injury and employment. Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444, 20 O.O.3d 376, [158]*158423 N.E.2d 96. Whether a sufficient causal connection exists depends upon the totality of the facts and circumstances surrounding the injury. Id.

{¶ 16} In workers’ compensation cases involving fights and assaults at the place of employment, Ohio courts have consistently focused on two factors: (1) whether the origin of the assault was work-related, and (2) whether the claimant was not the instigator. Foster v. Cleveland Clinic Found., Cuyahoga App. Nos. 84156 and 84169, 2004-Ohio-6863, 2004 WL 2914985, ¶ 13, citing Coleman v. APCOA, Inc. (Sept. 28, 1999), Franklin App. No. 99 AP-60, 2000 WL 192560. The injury is compensable only if both findings are made. Id.

{¶ 17} Appellees suggest that the assault was not work-related, and as a result, appellant cannot recover workers’ compensation benefits.

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Bluebook (online)
941 N.E.2d 88, 190 Ohio App. 3d 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-cox-paving-inc-ohioctapp-2010.