Luketic v. Univ. Circle, Inc.

• Decision Date: 30 August 1999
• Docket Number: No. 74688.,74688.
• Citation: 730 NE 2d 1006,134 Ohio App.3d 217
• Parties: LUKETIC, Appellant, v. UNIVERSITY CIRCLE, INC. et al., Appellees.
• Court: Ohio Court of Appeals

134 Ohio App.3d 217

730 NE 2d 1006

LUKETIC, Appellant, v. UNIVERSITY CIRCLE, INC. et al., Appellees.^*

No. 74688.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided August 30, 1999.

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Shapiro, Kendis & Associates and Rachel B. Jaffy, for appellant.

Ulmer & Berne, L.L.P., and Bruce P. Mandel, for appellee University Circle, Inc.

Betty D. Montgomery, Attorney General, and Jack R. Starkoff, Assistant Attorney General, for appellees Bureau of Workers' Compensation and Industrial Commission.

SPELLACY, Presiding Judge.

Plaintiff-appellant, Tony Luketic, appeals from the trial court's order granting summary judgment in favor of defendants-appellees, University Circle, Inc., the Bureau of Workers' Compensation, and the Industrial Commission of Ohio. Appellant assigns the following error for our review:

"The trial court erred in granting summary judgment for defendants where reasonable minds could reach different conclusions as to whether an off-duty police officer who was injured while acting to prevent the commission of a felony is entitled to participate in the workers' compensation system."

Finding appellant's assignment of error to have merit, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

I

On December 10, 1992, defendant-appellee University Circle, Inc. ("UCI") entered into an authorizing agreement with the city of Cleveland to provide supplemental police services in the University Circle area. The authority of the University Circle Police Department and its officers is limited by the authorizing agreement and R.C. 1702.80. Pursuant to R.C. 1702.80(B), a UCI officer is authorized to act as a police officer only "when directly engaged in the discharge of that person's duties" for UCI. Moreover, the authorizing agreement limited the authority of the University Circle Police Department and its officers to the University Circle area.

In 1990, UCI hired appellant as a police officer. On November 7, 1995, appellant sustained work-related injuries to his neck and back. As a result of these injuries, appellant was off work through the rest of November.

On November 30, 1995, appellant accompanied his mother to a bank located on Waterloo Road in Cleveland, Ohio; this bank was outside the University Circle area. While appellant was inside the bank, he observed an armed robbery in progress. When the gunman cocked his .38 caliber pistol and pointed the barrel at a teller, appellant jumped the gunman. After a brief struggle, the gunman shot appellant twice.

Appellant filed a claim for workers' compensation benefits, which was denied throughout the administrative process based upon the finding that "the claimant did not sustain an injury in the course of and arising out of his employment." On March 17, 1997, appellant filed a notice of appeal and complaint in the Cuyahoga County Court of Common Pleas challenging the administrative denial of his claim for workers' compensation benefits.

On March 16, 1998, appellees filed a joint motion for summary judgment. On May 28, 1998, the trial court granted appellees' motion for summary judgment.¹ On June 15, 1998, appellant filed the instant appeal.

II

In his sole assignment of error, appellant claims that the trial court erred in granting appellees' joint motion for summary judgment.

Civ. 56(C) provides that summary judgment is proper only if the trial court determines that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Civ.R. 56(C). See, also, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Stefanov v. Personal Serv. Ins. Co. (Nov. 19, 1998), Cuyahoga App. Nos. 73589, 73590, unreported, 1998 WL 811324.

R.C. 4123.01(C) defines "injury" as "any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment." (Emphasis added.) In order for an injury to be compensable, both prongs of the R.C. 4123.01(C) test must be satisfied, that is, the injury must be sustained "in the course of and "arising out of the claimant's employment. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271, 1273-1274.

Pursuant to R.C. 4123.95, the workers' compensation statutes must be liberally construed in favor of the employee. As the Supreme Court of Ohio noted in Fisher, the phrases "in the course of and "arising out of must be accorded this liberal construction in favor of awarding benefits. Id. at 278, 551 N.E.2d at 1274-1275.

In Fisher, the Supreme Court noted that "in the course of has to do with the time, place, and circumstances of the injury. Id. at 277, 551 N.E.2d at 1273-1274. Appellees emphasize that appellant was off duty when he was injured on November 30, 1995; in fact, appellant had been off work due to a previous work-related injury since November 7, 1995. Moreover, appellees note that appellant was outside the geographical jurisdiction of a UCI police officer when he was shot, and appellees stress the following circumstances: "He was not wearing a police uniform; he was not wearing his police badge; he did not drive in any marked or unmarked UCI vehicle; he did not have his gun with him; he did not have handcuffs with him; he did not have mace or OC spray; and he did not have his asp or baton."

Because appellant was injured while off duty and transacting purely personal business outside the jurisdiction of UCI, appellees insist that appellant was not in the course of his employment when he was shot. "Time, place, and circumstance, however, are factors used to determine whether the required nexus exists between the employment relationship and the injurious activity; they are not, in themselves, the ultimate object of a course-of-employment inquiry." Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 120, 689 N.E.2d 917, 920-921. As the Supreme Court of Ohio noted in Ruckman:

"The phrase `in the course of employment' limits compensable injuries to those sustained by an employee while performing a required duty in the employer's service. Indus. Comm. v. Gintert (1934), 128 Ohio St. 129, 133-134, 190 N.E. 400, 403. `To be entitled to workmen's compensation, a workman need not necessarily be injured in the actual performance of work for his employer.' Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693, 36 O.O. 282, 76 N.E .2d 892, paragraph three of the syllabus. An injury is compensable if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer's business. Kohlmayer v. Keller (1970), 24 Ohio St.2d 10, 12, 53 O.O.2d 6, 7, 263 N.E.2d 231, 233." Id. at 120, 689 N.E.2d at 920-921.

Appellant asserts that he was injured while attempting to prevent a felony—a duty required by statute for police officers—and, therefore, he was in the course of his employment. Appellant bases his assertions on R.C. 2935.03 and 2921.44(A)(2).

Pursuant to R.C. 2935.03, off-duty police officers have authority to arrest and detain offenders. As appellees note, however, this authority is generally limited to the territorial jurisdiction in which an officer is appointed.

R.C. 2921.44(A)(2) provides that a law enforcement officer is criminally liable for dereliction of duty if the officer should "flail to prevent or halt the commission of an offense or to apprehend an offender, when it is in his power to do so alone or with available assistance." Appellees insist that the same jurisdictional limitation expressly contained in R.C. 2935.03 should also be applied to R.C. 2921.44(A)(2); however, the legislature did not include a jurisdictional limitation in R.C. 2921.44(A)(2). If the legislature intended a jurisdictional limitation in R.C. 2921.44(A)(2), it could have used express language similar to that used in R.C. 2935.03. Cf. Murray v. Woodard (1997), 120 Ohio App.3d 180, 184, 697 N.E.2d 265, 268.

As a matter of public policy and statutory mandate, a police officer is required to prevent an offense, in particular a violent felony, when it is in the officer's ability to do so.² This is an implicit duty in the employment of all police officers throughout the state, regardless of jurisdictional limitations in R.C. 2935.03, R.C. 1702.80, or the authorizing agreement between UCI and Cleveland. Based upon the foregoing, we find that appellant sustained his injuries "while performing a required duty in the employer's service." Ruckman, 81 Ohio St.3d at 120, 689 N.E.2d at 920-921. Moreover, appellant's attempt to prevent a violent felony was "consistent with" and "logically related to" his employment as a police officer and his oath to serve and protect the...