Conover v. Lake Cty. Metro Parks Sys.

• Decision Date: 30 September 1996
• Docket Number: No. 95-L-201,95-L-201
• Citation: 114 Ohio App.3d 570,683 N.E.2d 808
• Parties: CONOVER, Appellee, v. LAKE COUNTY METRO PARKS SYSTEM et al., Appellants. * Eleventh District, Lake County
• Court: Ohio Court of Appeals

Page 570

114 Ohio App.3d 570

683 N.E.2d 808

CONOVER, Appellee, v. LAKE COUNTY METRO PARKS SYSTEM et al., Appellants. ^*

No. 95-L-201.

Court of Appeals of Ohio,

Eleventh District, Lake County.

Decided Sept. 30, 1996.

William J. Sexton, Cleveland, for appellee.

Leo J. Talikka, Painesville, for appellant Lake County Metro Parks System.

Betty D. Montgomery, Attorney General, Doug S. Musick and Cecille C. Harris, Assistant Attorneys General, Cleveland, for appellants Lake County Metro Parks System, Administrator, Ohio Bureau of Workers' Compensation, and Chairman, Industrial Commission of Ohio.

FORD, Presiding Judge.

Appellants, Lake County Metro Parks System, the Administrator of the Bureau of Workers' Compensation, and Industrial Commission of Ohio, ¹ appeal from a judgment of the Lake County Court of Common Pleas, granting a directed verdict in favor of Susan Conover, appellee, in a workers' compensation appeal.

Appellee filed a claim with the bureau for injuries she sustained on October 3, 1992, while riding a horse on Hogbark Ridge, in the Lake County Metro Parks System. Appellee is a member of the Lake Metro Parks Volunteer Mounted Posse, ² a group of experienced equestrians that provide assistance to the Lake Metro Parks Mounted Rangers on a volunteer basis. Appellee suffered injuries when her horse slipped on shale while crossing a creek, causing appellee to fall to the ground.

Appellee's claim was initially approved by a claims representative of the Bureau of Workers' Compensation by a letter dated January 12, 1994. The claim was denied by the district hearing officer in an order dated April 12, 1994, on the basis that appellee was not deemed to be an employee, pursuant to the holding in Cogar v. Shupe Middle School (June 19, 1991), Lorain App. No. 90CA004910, unreported, 1991 WL 116245. Appellee appealed from the April 12, 1994 order and the staff hearing officer affirmed the decision of the district hearing officer in an order dated August 2, 1994. Appellee appealed the August 2, 1994 decision, and on December 14, 1994, the Administrator refused to hear the appeal.

Appellee filed an appeal in the Lake County Court of Common Pleas on June 24, 1995. The testimony adduced at trial revealed the following facts. The posse members are unpaid volunteers that serve as the "eyes and ears" for the mounted rangers. The volunteers assist the mounted rangers in patrolling the park, especially in remote areas which are not easily accessible by foot. The posse members control the flow of traffic and crowds, assist the mounted rangers in criminal investigations, ride in parades, present educational programs to the public, serve as sources of information for the public, and act as goodwill ambassadors. In order to gain membership, a volunteer is required to be an experienced equestrian, to undergo thirty-six hours of training, to pass a written examination, and to participate in ten hours of activities on a monthly basis to maintain membership status. The members may choose the scheduled activities in which they desire to participate.

The posse members possess no law enforcement authority, receive no law enforcement training, do not carry sidearms or mace, and do not wear badges, only nameplates. The volunteers are not permitted to make any arrests themselves, but must report any observed criminal activity to the mounted park rangers. The posse members work under the supervision and direction of the mounted rangers, who are duly appointed law enforcement officers. Some posse members supply their own horses, while others use horses provided by Lake County. The volunteers are required to wear uniforms issued by Lake County when participating in posse activities.

One purpose of the October 3, 1992 "recreational, fun" ride was to reward the posse members for the numerous hours that they had volunteered. A second reason for the ride was to help familiarize the posse members with the less traveled trails in the park so that the volunteers could use that knowledge in the future. Appellee's expert witness testified regarding the extent of appellee's injuries and the fact that her ability to perform her duties as a nurse at Geauga Hospital had been impaired as a result of those injuries.

On November 28, 1995, the trial court granted a directed verdict for appellee. The trial court found that (1) appellee was a volunteer; (2) the activities of the posse were all law enforcement activities; (3) appellee was an employee under R.C. 4123.01; (4) appellee was a law enforcement official as a member of the posse organization; (5) appellee was engaged in an activity which generated some benefit, directly or incidentally, to the employer; (6) the organized event was part of the ten-hour monthly requirement; (7) the park board benefited from the volunteer hours contributed by appellee; and (8) appellee's fall was an accident arising out of and in the scope of employment. Accordingly, the trial court held that appellee should participate in the Workers' Compensation Fund.

Lake County timely appealed and raises two assignments of error:

"1. The trial court erred as a matter of law in holding that a volunteer mounted horseback unit member is entitled to participate in the worker's [sic ] compensation system.

"2. The trial court improperly granted a directed verdict where reasonable minds could reach different conclusions."

The Administrator raises a similar first assignment of error, and also raises a different second assignment:

"2. The trial court erred in directing a verdict for a volunteer mounted park ranger in a workers' compensation appeal where defense witnesses testified that no work purpose was being served during a recreational fun ride."

The standard for granting a directed verdict under Civ.R. 50 is stated as follows:

"[T]he evidence must be construed most strongly in favor of the party opposing the motion. To grant [the] motion, a trial court must find that reasonable minds could come to but one conclusion and that conclusion must be adverse to the party opposing the motion. Civ.R. 50(A)(4); White v. Ohio Dept. of Transp. (1990), 56 Ohio St.3d 39, 45, 564 N.E.2d 462, 468 (if reasonable minds can come to more than one conclusion the issue should go to the jury)." Vance v. Consol. Rail Corp. (1995), 73 Ohio St.3d 222, 231, 652 N.E.2d 776, 784. See, also, Awadalla v. Robinson Mem. Hosp. (June 5, 1992), Portage App. No. 91-P-2385, at 4-5, unreported, 1992 WL 188333.

"A motion for directed verdict tests the legal sufficiency of the evidence, and therefore presents a question of law, even though in deciding such a motion it is necessary to review and consider the evidence. Accordingly, [an appellate court must] make an independent review." (Citations omitted.) Howell v. Dayton Power & Light Co. (1995), 102 Ohio App.3d 6, 13, 656 N.E.2d 957, 961. As is the case with any question of law, the standard of review is de novo. Fields v. Anderson (Oct. 19, 1994), Montgomery App. No. 14113, unreported, at 3, 1994 WL 579861.

In the first assignment, Lake County and the Administrator argue that the workers' compensation system does not extend coverage to volunteer mounted horseback members, but only provides the right to compensation to those volunteers of lawfully constituted police and fire departments. In the instant appeal, we must decide whether the trial court properly determined that appellee, a volunteer member of a unit formed to assist park rangers in carrying out law enforcement functions, was an employee by operation of law under R.C. 4123.01(A)(1)(a) and was, thereby, entitled to receive benefits under R.C. 4123.54.

R.C. 4123.01 defines the term "employee" for purposes of workers' compensation and provides:

"(A)(1) 'Employee' means:

"(a) Every person in the service of the state, or of any county, municipal corporation, township, or school district therein, including regular members of lawfully constituted police and fire departments of municipal corporations and townships, whether paid or volunteer * * *."

"The rule of law [under R.C. 4123.95] calls for a liberal construction of the Workmen's Compensation Law. Unless the person is clearly within the exception, the right to compensation will be upheld." Indus. Comm. v. Rogers (1929), 34 Ohio App. 196, 198, 170 N.E. 600, 600. In Faulkner v. Mayfield (1988), 39 Ohio App.3d 136, 138, 529 N.E.2d 1294, 1296, the Fourth District Court of Appeals stated:

"The language in R.C. 4123.01 uses broad universal phrasing, such as '[e]very person in the service of the state, or of any county' * * *. ' "Injury" includes any injury * * *.' The exceptions to R.C. 4123.01(A) are quite narrow, excluding only ministers and the officers of a family farm corporation, and even these employees may be covered if the employer elects to do so. The clear legislative intent is to make workers' compensation coverage broad enough to include the entire range of employment relations people might enter into." (Citation omitted and emphasis sic.) See, also, Caygill v. Jablonski (1992), 78 Ohio App.3d 807, 810, 605 N.E.2d 1352, 1353-1354.

However, the liberal construction rule is not absolutely and unqualifiedly applicable. See Swallow v. Indus. Comm. (1988), 36 Ohio St.3d 55, 57, 521 N.E.2d 778, 779-780. The rule "does not necessarily equate with giving an individual claimant what he thinks is best in his particular situation." Id.

Initially, we observe that appellee, as a posse member, does not fall within the narrow exceptions to R.C. 4123.01(A)(2). The statute specifically includes only volunteer policemen and volunteer firemen. Thus, we must determine the significance of the omission of other classes of volunteers from the statutory language. "The goal of statutory construction is to ascertain and effectuate the intention of the General Assembly. It is a basic doctrine of construction that the express enumeration of specific classes of persons in a statute implies that the...