Hillman v. McCaughtrey

• Decision Date: 15 September 1989
• Docket Number: No. 4045,4045
• Citation: 564 N.E.2d 1123,56 Ohio App.3d 100
• Parties: HILLMAN et al., Appellees, v. McCAUGHTREY et al., Appellants. *
• Court: Ohio Court of Appeals

Page 100

56 Ohio App.3d 100

564 N.E.2d 1123

HILLMAN et al., Appellees, v. McCAUGHTREY et al., Appellants. ^*

No. 4045.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Sept. 15, 1989.

Syllabus by the Court

1. An employer has a duty to provide a safe workplace for his employees.

2. When an employer negligently introduces carbon monoxide fumes into his gasoline service station/convenience store by failing, before leaving, to turn off the engine of his recreational vehicle which he was working on in a garage adjacent to the convenience store, thus causing injuries to his employee, the employer violates his obligation to provide a safe workplace for his employee and is liable for workers' compensation damages. The dual-capacity doctrine does not apply in such a situation.

Michael I. Walling, Warren, for appellees.

Hoppe, Frey, Hewitt & Milligan, Thomas G. Carey, Jr. and Kevin Murphy, Warren, for appellants.

FORD, Judge.

The facts of this case are not in dispute. Appellant, D. Roger McCaughtrey, d.b.a. McCaughtrey Service, is the owner-operator of a gasoline service station/convenience store at which appellee, Carol Hillman (appellee) was employed as a cashier. Appellant stored several trucks and a family owned recreational vehicle in a garage located adjacent to the convenience store.

On March 23, 1986, appellant started the engine of his recreational vehicle, hoping to charge the battery in anticipation of an upcoming family vacation. Appellant left the business premises about midafternoon, on March 23, to return home. Unfortunately, he neglected to turn off the engine to the recreational vehicle before departing. Appellee, who was working that particular Sunday, inhaled the carbon monoxide fumes and had to be hospitalized for the resultant injuries. Appellee has continued to suffer physiological injuries as the result of her exposure to the fumes.

Appellee asked for, and received, workers' compensation damages for her injuries. She also filed a civil suit against appellants, alleging negligent, wanton, reckless and intentional conduct. (Appellee only proceeded with the negligence claim.) Appellants moved for summary judgment, on the basis that the workers' compensation remedy received by appellee was her exclusive remedy. The trial court overruled this motion. The case went to a jury trial, where appellants raised this argument again, in a motion for directed verdict. The motion was similarly denied. On March 3, 1988, appellee and her husband were awarded $35,000 in damages. Appellants timely filed this appeal and have presented the following assignment of error:

"The trial court erred in denying the defendants' motion for a directed verdict."

In this assignment, appellants contend that the trial court erred by not granting their motion for a directed verdict. Rather than address this argument as framed by appellants, appellees have submitted three arguments of their own, all of which present reasons that this court should allow appellees to prevail. Although appellees' brief addresses issues central to appellants' appeal, appellees should be mindful of App.R. 16(B), which requires appellees to respond to appellants' assignments of error, rather than propound their own.

Appellants argue that the trial court should have directed a verdict for them under R.C. 4123.74, which provides that workers' compensation damages provide the sole remedy in ordinary workplace negligence suits. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. The "test of the right to participate in the * * * 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, 360, 401 N.E.2d 448, 449-450, quoted in Waller v. Mayfield (1988), 37 Ohio St.3d 118, 122, 524 N.E.2d 458, 462. An employee is held to be in the course of his employment when he does such activities that are usually associated or incidental to the work of the employer. Lemming v. Univ. of Cincinnati (1987), 41 Ohio App.3d 194, 534 N.E.2d 1226; Taylor v. Indus. Comm. (1920), 13 Ohio App. 262, 270, 31 Ohio C.C. (N.S.) 390, 396.

Appellee has set forth several arguments which purport to distinguish this case from these conventional workers' compensation scenarios. The first of these contentions states that an employer may have independent obligations arising out of his conduct which are separate from those covered by the workers' compensation act. This argument is often referred to as the "dual-capacity doctrine."

Under the dual capacity doctrine, " 'an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort' " if he or she occupies, in addition to his or her status as an employer, a second capacity that would confer independent obligations upon him or her. McCormick v. Caterpillar Tractor Co. (1981), 85 Ill.2d 352, 357, 53 Ill.Dec. 207, 209, 423 N.E.2d 876, 878; Bingham v. Lagoon Corp. (Utah 1985), 707 P.2d 678. In a recent Ohio Supreme Court decision, the court held that:

" ' * * * The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first, but whether the second function generates obligations unrelated to those flowing from that of employer. This means that the employer must step outside the boundaries of the employer-employee relationship, creating separate and distinct duties to the employee; the fact of injury must be incidental to the employment relationship.' " Schump v. Firestone Tire & Rubber Co. (1989), 44 Ohio St.3d 148, 152, 541 N.E.2d 1040, citing Weber v. Armco, Inc. (Okla.1983), 663 P.2d 1221, 1226-1227.

The first Ohio case to recognize the dual-capacity doctrine was Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St.2d 183, 9 O.O.3d 138, 378 N.E.2d 488. In Guy, the employee, who was employed by a hospital, was injured while in the scope of her employment. The employee's injuries required medical care, which was provided at the employer hospital. While hospitalized, the employee received negligent medical treatment which exacerbated the initial injury. The court, drawing upon analogous findings in Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8, stated that the employer had undertaken separate obligations towards its employee when it acted as her treatment facility.

The Ohio Supreme Court has construed the dual-capacity doctrine on several occasions since Guy, most frequently in the products liability context. In Schump, supra, the court greatly narrowed the scope of dual-capacity cases by holding in the syllabus that:

"Where an employer manufactures a product for public sale and for its own use, and an employee is injured while using the product within the scope of his employment, the employee may not maintain a products liability action against his employer under the dual-capacity doctrine. (Bakonyi v. Ralston Purina Co. [1985], 17 Ohio St.3d 154, 17 OBR 356, 478 N.E.2d 241, approved and followed.)"

In so holding, the court expressly rejected Mercer v. Uniroyal, Inc. (1976), 49 Ohio App.2d 279, 3 O.O.3d 333, 361 N.E.2d 492, upon which appellee places so much emphasis.

The case sub judice concerns the obligations of appellants, not only as the employer of appellee, but also as the owner of the property in question. Appellee contends that the duty of appellants to maintain a safe premises for all invitees is separate and distinct from their obligations to appellee as an employer. A survey of the case law explicating the purported dual-capacity of the employer/landowner indicates that appellee's hypothesis has no merit. "It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structural work acts." 2A Larson, Workmen's Compensation (1982), Section 72.82 cited in Sharp v. Gallagher (1983), 95 Ill.2d 322, 69 Ill.Dec. 351, 447 N.E.2d 786. See, also, Bingham, supra.

The explanation given by Larson for the aforementioned rule is a pragmatic one. An employer will almost always own or occupy business premises, and if each obligation related to the employer's status as a landholder could give rise to a tort suit, in addition to workers' compensation remedies, "the concept of exclusiveness of remedy would be reduced to a shambles." Larson, supra.

Examination of employer/landowner cases in other jurisdictions reveals that the rule in Sharp...