Freese v. Consolidated Rail Corp.; City of Cincinnati

• Decision Date: 09 March 1983
• Citation: 445 N.E.2d 1110,4 Ohio St.3d 5
• Parties: , 4 O.B.R. 5 FREESE et al., Appellants, v. CONSOLIDATED RAIL CORPORATION; CITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 5

4 Ohio St.3d 5

445 N.E.2d 1110, 4 O.B.R. 5

FREESE et al., Appellants, v. CONSOLIDATED RAIL CORPORATION; CITY OF CINCINNATI, Appellee.

Supreme Court of Ohio.

March 9, 1983.

Syllabus by the Court

Where the use of city streets is a routine and integral part of a motorcycle policeman's employment, the obligation of a municipality to keep its streets open, in repair, and free from nuisance, pursuant to R.C. 723.01, is not independent of and unrelated to the employer-employee relationship; therefore, the dual-capacity doctrine does not apply to a policeman who is injured by a defect in the street during the course and scope of his employment, and his exclusive remedy is workers' compensation benefits.

The facts of this cause are that appellant, Donald Freese, a motorcycle policeman for appellee city of Cincinnati, while on duty and operating his motorcycle, crossed a certain railroad track owned and maintained by appellee Consolidated Rail Corporation (Conrail). As Officer Freese attempted to cross the track, one of the wheels of his motorcycle caught in a depression adjacent to the track, causing his motorcycle to overturn and, as a result, Freese sustained injuries which gave rise to this action.

Freese filed a complaint against the city of Cincinnati and Conrail, which is not a party to this appeal, claiming that appellee city had been negligent in its duty to maintain its streets and keep them open and safe for passage (pursuant to R.C. 723.01). Ellen Freese, appellant's wife, in count two of the complaint, alleged the loss of services and companionship of her husband.

The city of Cincinnati filed an answer stating that the complaint failed to state a claim upon which relief could be granted; and later filed a motion for summary judgment asserting that there was no issue of material fact, and that it was entitled to a judgment as a matter of law upon the basis that appellant was an employee of the city of Cincinnati, acting in the course of his employment by such city, a complying employer under R.C. 4123.74 of the Workers' Compensation Act. The motion for summary judgment was accompanied by an affidavit that Freese had filed a claim with the Bureau of Workers' Compensation for such injuries, and had in fact received certain benefits for such injuries.

The appellant filed a memorandum in opposition to the motion for summary judgment, asserting that the claim was based not upon the relationship of employer-employee, but upon the legal duty owed by the city to the public in general.

After a hearing before the trial court, the latter granted the city's motion for summary judgment. The court of appeals affirmed the judgment of the court of common pleas and rejected the claim of the appellant that the city of Cincinnati occupied a dual capacity of employer and general respondent as to negligence to this appellant, the court holding that the status of the employer-employee relationship had not shifted to any other relationship from which there might flow a dual-capacity responsibility to this appellant.

The cause is now before this court upon the allowance of a motion to certify the record.

Dennis A. Becker, Cincinnati, for appellants.

Richard A. Castellini, City Sol., and Daniel J. Schlueter, Asst. City Sol., for appellee city of Cincinnati.

Gregory S. Lashutka, City Atty., Patrick M. McGrath and Deborah Everson, Asst. City Attys., urging affirmance for amicus curiae, city of Columbus.

Harry E. Klide, Law Director, and Constance Butera, Canton, urging affirmance for amicus curiae, city of Canton.

James E. Young, Law Director, and John D. Maddox, Cleveland, urging affirmance for amicus curiae, city of Cleveland.

Robert D. Pritt, Director of Law, and James Thomas, Akron, urging affirmance for amicus curiae, city of Akron.

Thomas G. Petkewitz, City Atty., and Edward Neuman, Asst. City Atty., urging affirmance for amicus curiae, city of Dayton.

Sheldon M. Rosen, Law Director, and Gregory T. Merritt, Toledo, urging affirmance for amicus curiae, city of Toledo.

HOLMES, Justice.

Section 35, Article II of the Ohio Constitution grants the authority to the General Assembly to establish a workers' compensation program and expressly provides that such compensation is the exclusive remedy of the employee who has been injured within the course of his employment. ¹

The General Assembly codified the exclusivity of the workers' compensation laws in quite unambiguous terms in R.C. 4123.74. ²

It is uncontested by the parties that the city of Cincinnati was in full compliance with the workers' compensation statutes at the time of the accident. Therefore, the appellant's exclusive remedy would be his workers' compensation benefits unless it was specifically alleged and there exist issues of material fact that either the city of Cincinnati had intentionally occasioned the injuries, as this court has recently interpreted such claims of employees in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 433 N.E.2d 572 , or the employer had occupied a "dual capacity" to the employee at the time of the accident. There is no claim in this case that the city of Cincinnati acted intentionally in causing the injuries to this appellant.

The only allegation contained in the complaint relative to the claimed obligation of the city to the appellant-employee is that the appellant's injuries were the direct and proximate result of the city "failing to maintain its roadways in a safe, open condition and for failing to provide a safe roadway adjacent to the aforementioned tracks." The issue before this court is whether under the facts of this case the dual-capacity doctrine might be applicable, or whether the pleadings, and all the other proper material before the trial court, warrant the granting of the city's motion for summary judgment based upon the assertion of the exclusivity of the workers' compensation remedy.

The dual-capacity doctrine refers to the relationships between an employer and employee as in a given case might be established by the facts. In his treatise on The Law of Workmen's Compensation, Professor Arthur Larson, of Duke University, states:

"In comparatively recent years there has appeared in various contexts what might be called the dual-capacity doctrine. Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer." 2 Larson's Workmen's Compensation, Section 72.80 (Desk Ed.1982).

The so-called dual-capacity doctrine was first discussed and adopted by this court in Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St.2d 183, 378 N.E.2d 488 . In Guy, this court allowed recovery by the plaintiff, a laboratory technician who was an employee of the defendant hospital, in an action alleging that the plaintiff-technician was a patient within the defendant hospital, and as such had been injured by the medical malpractice of the hospital while confined for treatment. The syllabus law expressed in Guy, supra, states:

"Where an employer-hospital occupies a second or dual capacity, as an administering hospital, that confers upon it traditional obligations unrelated to and independent of those imposed upon it as an employer, an employee injured, as a result of a violation of the obligations springing from employer-hospital's second or dual capacity, is not barred by either Section 35 of Article II of the Ohio Constitution or R.C. 4123.74, Ohio Workers' Compensation Law, from recovering in tort from that employer-hospital."

The basic requirement of the doctrine of dual capacity upon which this court relied in Guy, supra, was expressed in 2A Larson, Workmen's Compensation Law, Section 72.81 (1982), as follows:

"An employer may become a third person, vulnerable to tort suit by an employee, if--and only if--he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person."

This court, in Guy, supra, reasoned that the determinative factor was one of status. The plaintiff in that case, a laboratory technician, although contracting mercury poisoning in the course of her employment, was allegedly treated negligently by the hospital for such condition. This court, in finding a dual capacity toward the plaintiff, held that the hospital had obligations toward the plaintiff unrelated to and independent of those imposed upon it as an employer, and that as such the plaintiff's action was not barred by R.C. 4123.74. The court stated, at page 186, 378 N.E.2d 488:

" ' * * * The [workers' compensation] act is based not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured.' " (Quoting from Cudahy Packing Co. v. Parramore [1923], 263 U.S. 418, at 423, 44 S.Ct. 153, at 154, 68 L.Ed. 366.)

Justice Locher, in the opinion in Guy, supra, referred to one of the leading cases in the country which had discussed the dual-capacity doctrine, Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8. Duprey involved a fact pattern strikingly similar to that in Guy, supra, in that the plaintiff in that case was a nurse employed by a partnership of doctors engaged in the practice of chiropractic medicine. After receiving an injury in the course of her employment, she was treated by those doctors, which treatment resulted in new and aggravated injuries. The plaintiff sought workers' compensation benefits for the original injury and sued the doctors for malpractice for creating the new and aggravated injuries. The California court held the doctors liable in their roles as treating physicians--a person other than an employer, i.e., a third par...