[Cite as Wining v. Unique Ventures Group, L.L.C., 2011-Ohio-2474.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

WILLIAM WINING, DECEASED, BY ) 

AND THROUGH ZOSIMAR WINING, ) 

ADMINISTRATOR, ) 

 ) CASE NO. 10 MA 111 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

UNIQUE VENTURES GROUP, LLC, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 08CV4917. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Patrick Fire 

 721 Boardman-Poland Road 

 Boardman, Ohio 44512 

For Defendant-Appellant: Attorney Michelle Holiday 

 614 West Superior Avenue 

 Rockefeller Building, Suite 625 

 Cleveland, Ohio 44113 

 Attorney Jan O’Halloran 

 5437 Mahoning Avenue, Suite 22 

 Youngstown, Ohio 44515 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: May 18, 2011 
VUKOVICH, J. 

¶{1} Defendant-appellant Unique Ventures Group, LLC (employer) appeals 

the decision of the Mahoning County Common Pleas Court granting summary 

judgment to plaintiff-appellee William Wining, Deceased, by and through Zosimar 

Wining, Administrator of the Estate (estate). The grant of summary judgment entitled 

the estate to receive death benefits from the Workers’ Compensation Fund. 

¶{2} Employer contends that Wining’s death did not occur while “in the course 

of” and “arising out of” employment. It asserts that Wining was a fixed-situs employee 

and, accordingly, since his death occurred while en route to Perkins Restaurant, his 

place of employment, the coming-and-going rule applies and the only way his death 

would be compensable would be if one of the exceptions to the coming-and-going rule 

is applicable. The estate argued, and the trial court found, that the special mission 

exception applied. Employer avers that the holding is incorrect; Wining’s action of 

traveling to his place of employment merely to share his work keys with his fellow 

associate manager Amanda Howard at a time when he was not scheduled to work 

does not constitute a special mission. 

¶{3} The estate counters the above arguing that Wining was on a special 

mission because he was directed by his superiors to share his keys with Howard, he 

forgot to leave those keys with her went he left, she needed those keys to perform the 

mandatory and necessary task of locking the restaurant, and that his sole purpose for 

traveling on the roads that night was to deliver his keys to the restaurant. 

¶{4} Considering the arguments presented, the trial court’s grant of summary 

judgment is hereby affirmed. As explained in depth below, Wining’s sole reason for 

traveling on the night of his accident was to deliver the keys to the restaurant. The 

delivery of the keys was a special mission for the employer because of the importance 

of securing the restaurant at night was of the utmost importance to mangers and to 

appellant’s Director of Operations. 

STATEMENT OF CASE AND FACTS
¶{5} In the early morning hours of January 6, 2008, Wining was killed while en 

route to his place of work, Perkins restaurant. Following his death, his widow 

requested death benefits from the Workers’ Compensation Fund. The District Hearing 

Officer denied the claim finding that William Wining’s death did not arise within the 

scope and course of his employment. The estate appealed that decision. The Staff 

Hearing Officer reversed the District Hearing Officer’s decision and allowed the death 

benefit. It found that the special mission exception to the coming-and-going rule was 

applicable. Appellant-employer appealed that decision to the Industrial Commission 

and the appeal was denied. Employer then appealed to the Mahoning County 

Common Pleas Court. In response to the notice of appeal, the estate filed a 

Petition/Complaint to Continue to Participate in the Workers’ Compensation Fund. As 

the matter proceeded through the common pleas court, the parties stipulated to the 

following facts. 

¶{6} On the date of his death, Wining was employed by appellant as 

Associate Manager of Perkins Restaurant. Amanda Howard was also employed by 

appellant as Associate Manager. At some point prior to January 6, 2008, Howard had 

lost her keys to the restaurant. Wining and Howard had made arrangements to share 

Wining’s keys. Around midnight on January 6, 2008, Howard phoned Wining asking if 

he left his keys for her so that she could close the restaurant. The parties agree that 

one of the job responsibilities of the closing manager is to secure all doors and locks at 

the end of their shift. Wining informed Howard that he would return to Perkins to bring 

his keys to her. While en route to the restaurant Wining was killed in a motor vehicle 

accident. 

¶{7} The parties each filed motions claiming that they were entitled to 

judgment as a matter of law. They both asserted that the matter before the court was 

purely a legal question. Specifically, when Wining was killed was he on a special 

mission for his employer? On June 11, 2010, the trial court issued its judgment and 

granted summary judgment for the estate finding that at the time of the automobile 

accident that caused his death, Wining was engaging in a special mission for his 

employer. 

STANDARD OF REVIEW AND PROCEDURAL MATTERS
¶{8} In reviewing a summary judgment award, we apply a de novo standard 

of review. Cole v. Am. Industries & Resources Corp. (1998), 128 Ohio App.3d 546, 

552, 715 N.E.2d 1179. Thus, we apply the same test as the trial court. Civ.R. 56(C) 

provides that the trial court shall render summary judgment if no genuine issue of 

material fact exists and when construing the evidence most strongly in favor of the 

nonmoving party, reasonable minds can only conclude that the moving party is entitled 

to judgment as a matter of law. State ex rel. Parsons v. Flemming (1994), 68 Ohio 

St.3d 509, 511, 1994-Ohio-172, 628 N.E.2d 1377. A “material fact” depends on the 

substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995), 

104 Ohio App.3d 598, 603, 662 N.E.2d 1088, citing Anderson v. Liberty Lobby, Inc.

(1986), 477 U.S. 242, 247-48, 106 S.Ct. 2505. 

ASSIGNMENT OF ERROR

¶{9} “THE TRIAL COURT ERRED WHEN IT FOUND THAT WILLIAM 

WINING WAS ENTITLED TO PARTICIPATE IN THE WORKERS’ COMPENSATION 

FUND.” 

¶{10} “The test of the right to participate in the Workers' Compensation 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, 401 N.E.2d 

448. “In the course of” and “arising out of” is the test used to determine whether the 

injury is compensable. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 

1271. The Supreme Court has explained that these two prongs are conjunctive, 

requiring both to be satisfied before compensation is allowed. Id. 

¶{11} As to the “in the course of” prong, the Court has stated that the phrase 

“limits compensable injuries to those sustained by an employee while performing a 

required duty in the employer's service. ‘To be entitled to workmen's compensation, a 

workman need not necessarily be injured in the actual performance of work for his 

employer.’ 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.” Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio 
St.3d 117, 120, 1998-Ohio-455, 689 N.E.2d 917 (internal citations omitted). This 

prong requires a consideration of factors such as “time, place, and circumstances” of 

the injury to determine the existence of a nexus between the employment and the 

activity causing the injury. Fisher, supra, at 277. 

¶{12} The second prong, “arising out of,” contemplates a causal connection 

between the injury and the employment. Ruckman, supra, at 121-122. The analysis 

under this prong requires a totality of the circumstances review of the incident. Id. at 

122. There are three basic factors that the Court set forth to assist in determining 

whether an injury arose out of the employee's employment: “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.” Id. at 122, quoting 

Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444. However, this list is not exhaustive, 

but rather is illustrative. Fisher, supra, at 279, fn. 2. Workers' compensation cases are 

intensely fact specific and a flexible and analytically sound approach is preferable to 

rigid rules that can lead to unsound and unfair results. Id. at 280. Likewise, the 

workers' compensation statutes must be liberally construed in favor of the employee. 

R.C. 4123.95; Fisher, supra, 278. 

¶{13} When an employee suffers an injury in a traffic accident, courts use the 

coming-and-going rule in determining whether the injury occurred “in the course of” 

and “arises out of” the employment relationship so as to constitute a compensable 

injury. Ruckman, supra, at 119. The coming-and-going rule provides that, in general, 

an employee with a fixed place of employment who is injured while traveling to and 

from the place of employment is not entitled to compensation for the injury because 

the requisite causal connection between the injury and the employment does not exist. 

MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, citing 

Bralley, supra. However, courts have recognized exceptions to this rule: if the injury 

occurs in the “zone of employment;” if it was a result of a “special hazard” of the 

employment; if based upon the totality of the circumstances, there is a sufficient causal 

connection between the injury and the employment to warrant compensation; or if the 

injury occurred while the employee was on a special mission, errand, service or task 
for the employer. Stivison v. Goodyear Tire & Rubber Co. (1997), 80 Ohio St.3d 498, 

500, 1997-Ohio-321, 687 N.E.2d 458 (stating “zone of employment” and “special 

hazard” exception); Seese v. Ohio Bureau of Workers’ Comp., 11th Dist. No. 2009-T0018, 2009-Ohio-6521, ¶33 (discussing special mission exception); Gonzales v. 

Administer, Bureau of Workers’ Comp., 7th Dist. No. 03MA86, 2004-Ohio-1562, ¶14, 

28, 36 (discussing “zone of employment,” “special hazard” and totality of the 

circumstances exceptions); Pierce v. Keller (1966), 6 Ohio App.2d 25, 215 N.E.2d 601 

(discussing special mission, errand, service or task exception). 

¶{14} The coming-and-going rule and its exceptions have no application to a 

non-fixed-situs employee. See Lippolt v. Hague, 10th Dist. No. 08AP-140, 2008-Ohio5070, ¶12, citing Fletcher v. Northwest Mechanical Contr., Inc. (1991), 75 Ohio App.3d 

466, 473, 599 N.E.2d 822. Where traveling itself is part of the employment, either by 

virtue of the nature of the occupation or by virtue of the contract of employment, the 

employment situs is non-fixed. 

¶{15} Here, it is undisputed that Wining was a fixed-situs employee. Thus, 

unless an exception to the coming-and-going rule is applicable, then there is no basis 

to find that his estate is entitled to death benefits. The only exception argued in this 

case is the special mission exception. 

¶{16} One of the first cases that addressed this exception was the Third 

Appellate District’s Pierce case. In Pierce, the court explained that in order for the 

exception to apply, “the mission must be the major factor in the journey or movement, 

and not merely incidental thereto, and the mission must be a substantial one.” Pierce, 

supra, at 29. In that case, the court reasoned that while Pierce’s supervisor might 

have called him the night before and gave him instructions to give to the maintenance 

crew foreman the next morning upon arriving at work at his regularly scheduled time, 

such a mission was incidental to and not the reason for the journey. Id. at 29-30. “The 

fact that he was carrying instructions did not require him to travel by a different route 

by different means of transportation, or at a different time, and, if he were not carrying 

instructions, the likelihood was that he would have been on the same route at the 

same time as he was when injured. The carrying of instructions did not place him 

there, and his injuries did not follow ‘as a result of exposure occasioned by the nature, 
conditions or surroundings of the employment.’” Id. See, also, Monjar v. Mayfield

(1987), 35 Ohio App.3d 76, 519 N.E.2d 681 (stating that there was no special errand 

when janitor was transporting cleaning supplies by instruction of the employer, 

because the cleaning supplies did not contribute to the accident and she would have 

been traveling the same route, at the same time, under the same conditions 

regardless of whether she was transporting cleaning supplies). 

¶{17} Likewise, more recently, the Eleventh Appellate District has looked at the 

special mission exception and found that it was not applicable to the facts presented to 

it. Seese, 11th Dist. No. 2009-T-0018, 2009-Ohio-6521. In Seese, the employee, a 

union carpenter, was injured while traveling to work on a day that he was not normally 

scheduled to work. The employer called him on his day off because a storm the night 

before had damaged the roof and the employer needed a carpenter to repair it. In 

finding that the exception did not apply, the court stated: 

¶{18} “We recognize that but for his employer's need for his presence at work 

due to a storm, he would not have sustained the injuries. However, the courts have 

required an employee injured while commuting to a fixed work site to satisfy more than 

the but-for test in order to participate in the Workers' Compensation program.” Id. at 

¶40 (emphasis in original). 

¶{19} It then explained that like the employee in Pierce, Seese was not 

performing any special mission for his employer when he was injured. Id. at ¶42. He 

was not carrying out a special mission while he traveled to work. Id. “Commuting to 

work on a day not regularly scheduled does not constitute a special mission 

contemplated by the exception as explained in Pierce.” Id 

¶{20} These cases show that in order for the special mission exception to be 

met, the mission must be a major factor in the journey; it has to meet more than a “but 

for” test. Both the trial court and the Staff Hearing Officer found that the delivery of the 

keys was substantial in the journey to Perkins and thus, the special mission exception 

has been met. The Staff Hearing Officer explained: 

¶{21} “In the claim at hand, the Staff Hearing Officer finds that the criteria of 

the ‘special mission exception’ have been satisfied. The Staff Hearing Officer 

concludes that Wining’s errand on the night of 1/6/2008 was performed for the benefit 
of his employer. Had Wining not agreed to leave his home on the late evening hours 

of 1/6/2008, Ms. Howard would have had difficulty securing and locking the restaurant 

premises. Ms. Howard testified that locking the premises was a substantially 

important job function. Ms. Savchuk, Direction [sic] of Operations, testified to the 

urgency in which the Regional Manager should have acted to replace the lost key of 

Ms. Howard. And Wining’s job description charged him with the responsibility of 

‘security measures and adherence to safety requirements’. All of those factors, when 

coupled with the knowledge that Wining was not scheduled to work on the evening of 

1/6/2008 (and in fact was preparing for bed when Ms. Howard telephoned) persuade 

this Staff Hearing Officer that Wining’s delivery of keys to Ms. Howard constituted a 

‘special mission’ for his employer. The Staff Hearing Officer is similarly persuaded that 

Wining’s delivery of keys to Ms. Howard was the sole and exclusive purpose for his 

journey, and that it was a journey of substantial importance. Simply stated, Wining’s 

mission to effectuate a proper and secure lock-up of the restaurant on the evening of 

1/6/2008 would have assured the protection and security of the employer’s property, 

premises, and business operations by greatly limiting the chance of theft, trespass, 

arson or other loss.” 

¶{22} Likewise, the trial court reasoned: 

¶{23} “Not only was the delivery of the keys the major factor in his journey that 

evening, it was the only reason for his journey. Mr. Wining was neither commuting to 

or driving home from work. The purpose of his excursion that evening was not 

incidental to his commute to work and he was only operating his vehicle that evening 

to deliver the keys to Ms. Howard and return home. Certainly, the act of securing and 

closing the premises was a critical and substantial duty to be performed. The 

decedent’s sole and exclusive purpose for traveling to the restaurant was to perform a 

special mission of substantial importance to his employer. Delivery of the keys was 

the major factor in his journey and not merely incidental thereto.” 06/11/10 J.E. 

¶{24} We agree with the above reasoning. The sole reason for Wining being 

on the road that evening was to deliver the keys to Ms. Howard so that she could lock 

the restaurant. Securing the restaurant is a substantially important job. Both 

associate manager Howard and the Director of Operations for appellant employer, 
Patsy Savchuk, attested to the importance of locking up the building at night. (Savchuk 

Depo. 17-18; Howard Depo. 17). Thus, transporting the keys to the restaurant was the 

special mission and since he was injured while performing the special mission, the 

estate is entitled to death benefits. Consequently, this assignment of error has no 

merit. 

¶{25} For the foregoing reasons, the judgment of the trial court is hereby 

affirmed. 

Waite, P.J., concurs. 

DeGenaro, J., concurs.