John D. Caygill v. Patrick Jablonski

• Decision Date: 30 September 1992
• Docket Number: L-91-364,92-LW-4241
• Parties: John D. Caygill, Appellant v. Patrick Jablonski, Appellee Court of Appeals
• Court: Ohio Court of Appeals

John D. Caygill, Appellant v. Patrick Jablonski, Appellee

No. L-91-364.

92-LW-4241 (6th)

Court of Appeals of Ohio, Sixth District Lucas

September 30, 1992

Trial Court No. CV 90-3784.

Dennis M. Keil, for appellant.

Glenn E. Wasielewski, for appellee.

OPINION

ABOOD J.

This is an appeal from a summary judgment granted by the Lucas County Court of Common Pleas in favor of defendant-appellee Patrick Jablonski.

Plaintiff-appellant, John Caygill, sets forth one assignment of error:

"THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BY MISAPPLYING THE LAW TO THE FACTS OF THIS CASE AND REACHING THE CONCLUSION THAT O.R.C. 4123.741 PROVIDED ABSOLUTE IMMUNITY FROM SUIT FOR THE APPELLEE."

The facts that are relevant to a determination of the issues raised by this appeal are as follows. On July 24, 1989, both appellant and appellee were employed by the city of Sylvania, Division of Streets, as street crew workers. On that day they had finished their work duties early and were waiting in the Sylvania City Garage for 3:00 p.m., the time their workday ended, so that they could leave. While they were waiting, appellee, a "temporary employee," became involved in a "pick up" game of baseball. The game involved the use of a shovel handle as a bat to hit a "ball" of rolled-up rags. Each person playing would take turns batting, pitching and playing the outfield. While appellee was taking a swing during his turn at bat, the shovel handle slipped out of his hands and flew into appellant's forehead. Appellant was not involved in the pick-up game. Thereafter, appellant applied for and received workers' compensation benefits from the Ohio Bureau of Workers' Compensation for the injuries he sustained from the bat hitting him. On November 2, 1990, appellant filed a complaint in the Lucas County Court of Common Pleas against appellee based on common-law negligence. On January 23, 1991, appellee filed his answer in which he alleged as a defense that appellant's claims were barred by the immunity granted to coemployees under R.C. 4123.741 and, on August 23, 1991, he filed a motion for summary judgment. On September 3, 1991, appellant filed his memorandum in apposition to appellee's motion for summary judgment. The record that was before the trial court on summary judgment consists of the pleadings and depositions of appellant and appellee.

Appellee testified at his deposition that his job duties did not include playing the game but that he and others had played the game on ten to fifteen different occasions, that one of the supervisors had previously participated in the game and that no supervisor had ever "*** once said, no, don't play."

On October 7, 1991, the trial court filed its opinion and judgment entry in which it found appellee to be immune from suit and granted summary judgment to appellee. In so finding, the trial court analyzed the statute in part as follows:

"In this case both Plaintiff and Defendant were on the employer's property and therefore within the 'zone of employment'. Further both Plaintiff and Defendant were there as employees during their regular working hours.

"Even though the Defendant was playing ball, which was not part of the Defendant's job description, he is still immune from suit by the Plaintiff, since O.R.C. section 4123.741 makes the Defendant's activities irrelevant so long as they are not criminal or intended to cause harm.

"It is important to note that O.R.C. section 4123.01 defines 'Employee' as 'Every person in the service of the state, or of any county, municipal corporation ***'

"The term 'in the service of' is a very broad term, so that the terms employee can be defined very broadly. This broad definition of employee status is to the benefit of all employees and is therefore good public policy.

"In this case, even though the Defendant was not engaged in activity within his job description, based on other factors he was still in the service of his employer and therefore qualifies as an employee for purposes of O.R.C. section 4123.741."

It is from this judgment that appellant brings this appeal.

In support of his sole assignment of error, appellant argues that appellee was not an "employee" of their mutual employer at the time appellee caused injury to him because "tt]he conduct of the Appellee at the time of the accident *** is clearly not rendering benefit to his employer ***."

Appellee responds that "*** one would have to completely disregard the language of R.C. 4123.741 (if not just its plain meaning) to conclude that the statute dies not bar a negligence claim against the Appellee as Appellant asserts"; that the trial court's interpretation of the statute is consistent with that of other Ohio courts; and that appellant is estopped from denying that his injury was incurred in the course of his employment "*** regardless of considerations of the interpretation of R.C. 4123.741."

Appellant replies that he "*** has never denied that he sustained his injury within the course and scope of his employment. Appellant's argument has always been that the Appellee had made a significant detour from the course and scope of his employment and therefore should be precluded from shielding himself from liability with O.R.C. Section 4123.741."

Civ.R. 56(C) provides, in pertinent part, that:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

The issue presented by appellant's sole assignment of error is whether a genuine issue of material fact remains as to appellee's status as an "employee" at the time of appellant's injury.

R.C. 4123.741 provides, in pertinent part, that:

"No employee *** shall be liable to respond in damages at common law *** for any injury *** received *** by any other employee *** in the course of and arising out of the latter employee's employment *** on the condition that such injury *** is found to be compensable ***." In Proctor v. Ford Motor Co. (1973), 36 Ohio St. 2d 3, paragraph one of the syllabus, the Supreme Court of Ohio held that:

"To qualify for statutory immunity from tort liability under R.C. 4123.741, a person must be an 'employee' as defined in R.C. 4123.01(A)(2)."

In this case, since appellee's employer is the city of Sylvania, in order to qualify for statutory immunity under R.C. 4123.741, he must be an "employee" as defined in R.C. 4123.01(A)(1)(a). That section defines "employee" in relevant part as "[e]very person in the service of *** any *** municipal corporation *** under any appointment or contract of hire ***." (Emphasis added).

A preliminary issue for this court to determine is whether a tort-feasor, who, while under a contract of hire with the injured person's employer, causes injury while on the employer's premises and during his regular working hours but while engaged in horseplay disconnected with his employment, is a "*** person in the service of ***" such employer for purposes of qualifying for statutory immunity from tort liability under R.C. 4123.741

In Wingate v. Hordge (1979), 60 Ohio St.2d 55, 58, the Supreme Court of Ohio stated:

"It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 304 N.E. 2d 378. Where the court is confronted with a statutory ambiguity, the rules of statutory interpretation may be invoked for the purpose of ascertaining the true intent of the General Assembly. See Humphrey v. Winous Co. (1956), 165 Ohio St.45, 133 N.E.2d 780."

In determining the meaning of words and phrases in a statute, when a term has acquired a technical meaning by legislative definition, court decision or otherwise, it shall be construed accordingly and no further interpretation is necessary. R.C. 1.42; Woman's Bowling Congress v. Porterfield (1971), 25 Ohio St.2d 271, 275; State ex rel. Moore Oil Co. v. Dauben (1919), 99 Ohio St. 406, 412-13; State ex rel. Belford v. Hueston (1886), 44 Ohio St. 1, 5, 6. If the statutory definition itself is ambiguous, however, legislative intent must be examined to determine its meaning. See, e.g., Brunner v. Harrison (1900), 11 O. Dec. 446, reversed on other grounds, 1 OCC NS 111, 25 OCC 247.

When a term has not been defined by the legislative enactment in which it appears, by court decision or otherwise, it will be given its common, ordinary and accepted meaning in the context in which it is used. R.C. 1.42; Baker v. Powhatan Mining Co. (1946), 146 Ohio St. 600, 606.

If the generally accepted meaning of a term is clearly repugnant to the intention of the legislature, or if there is more than one generally accepted meaning of the term, such term "*** may be subject to judicial determination ***." Wadsworth v. Dambach (1954), 99 Ohio App. 269, 273; State ex rel. Belford, supra, at 5; 85 Ohio Jurisprudence 3d (1988), 257, Statutes, Section 243.

R.C 4123.741 clearly provides immunity to a tort-feasor "employee" from liability for damages...