[Cite as Deems v. Minute Men, Inc., 2016-Ohio-8259.]

Civil Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: December 21, 2016 

Ronald T. Bella, for Plaintiff-Appellee, 

George N. Wukovich, for Defendant-Appellant Minute Men, Inc. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

CHERYL L. DEEMS,

 Plaintiff-Appellee, 

 vs. 

MINUTE MEN, INC., 

 Defendant-Appellant, 

 and 

ADMINISTRATOR, OHIO BUREAU 

OF WORKERS’ COMPENSATION, 

 Defendant. 

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APPEAL NO. C-160296 

TRIAL NO. A-1302859 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

 2

MOCK, Judge. 

{¶1} Defendant-appellant Minute Men, Inc., claims that the trial court 

erred when it granted the motion for summary judgment filed by plaintiff-appellee 

Cheryl L. Deems in this workers’ compensation case. Minute Men also claims that 

the trial court erred when it failed to grant its competing motion for summary 

judgment. We agree with both arguments, and conclude that Deems was not within 

the course and scope of her employment when she suffered her claimed injuries. 

Employee Injured in Accident Returning from Worksite 

{¶2} Deems was an employee of Minute Men, a full-service staffing agency. 

Minute Men provided labor to other companies, and would assign jobs to employees 

on a daily basis by giving them a work ticket to take to the job site. Minute Men 

employees were only paid for the time spent at the worksite, and were free to get 

there however they chose once they received their assignments. Some employees 

drove to the sites, while others elected to carpool in order to share expenses. If no 

employees were available who could drive to a site, Minute Men would provide a ride 

in a van operated by one of its employees. Once the employees arrived at the job site, 

they presented the work ticket and began their shifts. At the end of the shift, the site 

operator recorded the time worked by each employee on the work ticket, and faxed it 

back to Minute Men. Minute Men then generated a paycheck for the day’s work at its 

office. While many employees returned to the office in order to pick up their 

paychecks at the end of their shifts, it was not required. Minute Men did not require 

employees to return to the office at the end of their shifts for any reason. 

{¶3} On July 3, 2008, Deems reported to Minute Men’s downtown office 

for her daily assignment. Deems was assigned to a job at Verst Group Logistics 

located near the Cincinnati/Northern Kentucky International Airport. Deems and 
OHIO FIRST DISTRICT COURT OF APPEALS

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other employees assigned to Verst elected to carpool to the location. At the end of 

the shift, Verst recorded the time worked for the employees and faxed the ticket back 

to Minute Men. Deems rode with the other employees back to Minute Men to pick 

up her check after the shift. Shortly after leaving the site, the employee operating the 

car drove into the rear of another vehicle stopped ahead of them on Interstate 275 

near the ramp to northbound Interstate 71/75. 

{¶4} Deems claimed to have been injured in the automobile accident, and 

filed a claim requesting to participate in the workers' compensation fund. Her 

request was denied after defendant Ohio Bureau of Workers’ Compensation 

determined that Deems was not within the course and scope of her employment at 

the time of the accident. Deems appealed that decision to the trial court. Both 

Deems and Minute Men filed competing motions for summary judgment on the sole 

issue of whether Deems was within the course and scope of her employment. The 

trial court found that Deems was within the scope of her employment, granted her 

motion and denied the motion filed by Minute Men, and entered judgment 

accordingly. 

{¶5} In two assignments of error, Minute Men now appeals. In its first 

assignment of error, Minute Men argues that the trial court erred when it granted 

Deems’s motion for summary judgment. In the second assignment of error, Minute 

Men argues that the trial court improperly denied its competing motion. 

{¶6} We review the granting of summary judgment de novo. Grafton v. 

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment 

is appropriate when (1) there is no genuine issue of material fact, (2) the moving 

party is entitled to judgment as a matter of law, and (3) the evidence, when viewed in 

favor of the nonmoving party, permits only one reasonable conclusion and that 
OHIO FIRST DISTRICT COURT OF APPEALS

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conclusion is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Howard v. 

Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994). The moving party bears 

the initial burden of informing the court of the basis for the motion and 

demonstrating the absence of any genuine issues of material fact. Dresher v. Burt, 

75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party meets its 

burden, the nonmoving party must then present evidence that some issue of material 

fact remains to be litigated. Id. 

{¶7} To qualify for participation in Ohio’s workers' compensation scheme, 

an employee must suffer an injury “in the course of, and arising out of,” her 

employment. R.C. 4123.01(C). For an injury to be compensable, the claimant must 

meet both prongs of the test established in the statute. Collins v. W. S. Life Ins. Co., 

1st Dist. Hamilton No. C-070189, 2008-Ohio-2054, ¶ 5. 

{¶8} While the workers’ compensation statutes are generally to be read 

liberally with an eye toward finding coverage, this court has held that “the statutes 

cannot be construed so broadly that they eliminate the required causal connection to 

the claimant's employment.” Id. One of the limitations recognized by Ohio courts is 

the so-called “coming-and-going rule.” As the Ohio Supreme Court has put it, “[a]s a 

general rule, an employee with a fixed place of employment, who is injured while 

traveling to or from his place of employment, is not entitled to participate in the 

Workers’ Compensation Fund because the requisite causal connection between the 

injury and the employment does not exist.” MTD Prods., Inc. v. Robatin, 61 Ohio 

St.3d 66, 572 N.E.2d 661 (1991), syllabus. 

{¶9} For the purposes of this appeal, the parties do not dispute the fact 

that Deems is “an employee with a fixed place of employment.” The only question 

remaining is whether Deems’ participation is precluded by the coming-and-going 
OHIO FIRST DISTRICT COURT OF APPEALS

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rule. Courts have recognized three exceptions to the coming-and-going rule: (1) 

where there is a causal connection between the employee’s injury and employment 

based on the totality of the circumstances surrounding the accident; (2) when the 

employment creates a special hazard; or (3) when the injury occurs within the zone 

of employment. See Cunningham v. Lukjan Metals Prods., Inc., 11th Dist. Ashtabula 

No. 2009-A-0033, 2010-Ohio-822, ¶ 16. None of these exceptions apply in this case. 

{¶10} Under the “totality of the circumstances” exception to the comingand-going rule, a court must look to the following factors to determine if an offsite 

injury is compensable: “(1) the proximity of the scene of the accident to the place of 

employment, (2) the degree of control the employer had over the scene of the 

accident, and (3) the benefit the employer received from the injured employee’s 

presence at the scene of the accident.” MTD Products at 70, citing Fisher v. 

Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (1990); Lord v. Daugherty, 66 

Ohio St.2d 441, 423 N.E.2d 96 (1981), syllabus. 

{¶11} None of the “totality of the circumstances” factors apply in this case. 

Minute Men was not near the accident scene and had no control over the interstate. 

And, most significantly, Minute Men received no benefit from Deems’s presence at 

the scene of the accident. Deems was on her way home. The fact that she had 

planned to stop at Minute Men’s office to pick up her check did not benefit Minute 

Men. 

{¶12} We also conclude that Deems’s employment did not create a special 

hazard resulting in her injury. When the employment creates a “special hazard,” an 

employee is entitled to workers’ compensation benefits if she sustains injuries 

because of that hazard. That rule applies where: (1) “but for” the employment, the 

employee would not have been at the location where the injury occurred, and (2) the 
OHIO FIRST DISTRICT COURT OF APPEALS

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risk is distinctive in nature or quantitatively greater than the risk common to the 

public. Littlefield v. Pillsbury Co., 6 Ohio St.3d 389, 453 N.E.2d 570 (1983), syllabus. 

{¶13} While Deems would not have been on the road in that car “but for” 

her employment at Minute Men, satisfying only one prong of the Littlefield test is not 

sufficient. See Petry v. Kilbarger Constr., Inc., 5th Dist. Muskingum No. CT2015-

0011, 2015-Ohio-4662, ¶ 21. When considering the risk of travel as a special hazard, 

it must also be distinctive in nature or quantitatively greater than risks common to 

the public. Courts have only found that the prong applied when the travel was 

lengthy. See, e.g., Ruckman v. Cubby Drilling, 81 Ohio St.3d 117, 125, 689 N.E.2d 

917 (1998). 

{¶14} Deems faced the same hazards as anyone traveling home from work 

on the interstate. The constitutional provision and legislation creating the workers’ 

compensation scheme “do not embrace risks and hazards, such as those of travel to 

and from his place of actual employment over streets and highways, which are 

similarly encountered by the public generally.” Indus. Comm. v. Baker, 127 Ohio St. 

345, 188 N.E. 560 (1933), paragraph four of the syllabus. Since Deems was exposed 

only to the commuting hazards common to the public, the requisite causal 

connection between the injury and the employment did not exist. See Freeman v. 

Brooks, 154 Ohio App.3d 371, 2003-Ohio-4814, 797 N.E.2d 520, ¶ 18 (10th Dist.). 

{¶15} Finally, under the “zone-of-employment” exception, an employee may 

recover for an injury incurred while commuting to or from work so long as she has 

reached the “zone of employment,” which has been defined as “the place of 

employment and the area thereabout, including the means of ingress thereto and 

egress therefrom, under control of the employer.” Merz v. Indus. Comm., 134 Ohio 
OHIO FIRST DISTRICT COURT OF APPEALS

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St. 36, 39, 15 N.E.2d 632 (1938). This exception does not apply because, as 

previously noted, this was not an area under the control of her employer. 

{¶16} None of the recognized exceptions to the coming-and-going rule apply 

in this case. Deems did not suffer an injury in the course of, and arising out of, her 

employment. Therefore, the trial court erred both when it granted Deems’s motion 

for summary judgment and when it denied the motion filed by Minute Men. We 

sustain both of Minute Men’s assignments of error, reverse the judgment of the trial 

court, and remand the cause with instructions to enter judgment accordingly. 

Judgment reversed and cause remanded. 

FISCHER, P.J., and DEWINE, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.