[Cite as Marzan v. Univ. of Cincinnati , 2024
- Ohio
- 857.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} Plaintiff brings this action for neglig ence claiming that , on Septem ber 18, 2019 , while enrolled as a student with Defendant, he was injured on the way to his on campus job as a result of tripping and falling o n an uneven walkway on D efendant ’ s p remises

. {¶2} On December 14, 2023, De fendant f iled a Motion for Summary J u dgment pu rsuant Civ.R. 56

. On January 16, 2024, Plaintiff filed a Re sponse , and , o n Jan uary 23, 20 24, Defendant fi led a Reply

. For t he reasons set forth below , Defe ndant ’ s M otion shall be granted.

Standard of Review {¶3} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), wh ich states, in part: Summary judgment shal l be ren der ed forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcrip ts of evidence, and written stipula tions of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fa ct and that the moving party is entitled to summary judgment as a mat ter of law. N o evidenc e or stipulation may be considered except as stated in this rule. “[T] he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which ANGEL MARZAN
Plaintiff

v. UNIVERSITY OF CINCINNATI
Defendant Case No. 2023

- 00533JD Judge Lisa L. Sadler Magistrate Robert Van Schoyck
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTCase No. 2023

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demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party ’ s claim .” Dresher v. Burt , 75 Ohio St.3d 280, 292, 6 62 N.E.2 d 2 64 (1996). To meet this initial burden, the moving party must be able to poin t to evi dentiary material s of the type listed in Civ.R. 56(C). Id

. at 292

- 293. {¶4} If the moving party meets its initial burde n, the nonmoving party bears a reciprocal burden o utl ined in Civ.R. 56(E), which provides that “an adverse party may not rest upon th e mere alle gations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts
s howing t hat there is a genuine issue for trial.” When considering the evidence, “ ‘ [a]ny do u bt must be res olved in f avor of the non

- moving party. ’ ” Pingue v. Hyslop , 10th Di st. Franklin No. 01AP

- 1000, 2002

- Ohio

- 2879, ¶ 15 , quoting Helms v. Cahoon , 9 th D ist. Summit No. 20527, 2002 Ohio App. LEXIS 102 , *3 (Jan. 16, 2002) . Summary judgme nt is not appropriat e unless , “ constr uing the evidenc e most strongly in favor of the nonmoving party: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one concl usion, that conclus ion be ing adverse to the nonmoving party. ” Robinette v. Orth opedics, Inc. , 10th Dist . F ranklin No. 97AP

- 1299, 1999 Ohio App. LEXIS 2038, * 7 (May 4, 1999).
Analysis {¶5} Defendant argues that it is immune from liability under the Workers ’ Compensation Act, R.C. Chapter 4123

. Plainti ff argues that workers ’ compensation immunity does not ap ply be cause he had not yet arrived at his work station in the building and actually begun working

. {¶6} Defendant submitted a transcript of Plaintiff ’ s deposit ion, which establishes the following undisputed facts relating to the issue of workers ’ compensation immunity

. Defendant employed plaintiff in a work study position “at the bu ilding where the accident happened , ” known as the Learning Commons

. (Deposition, pp. 13

- 14.) Plaintiff ’ s brother drove him by car from their home to Defendant ’ s campus shortly before he was scheduled to begin work at 3:00 or 3:30 p.m. , d r opping him off on Defendant ’ s premises at a sidewalk near the building . ( I d. at p p. 2 1

- 24.) Plaintiff proceeded directly along a walkway leadingCase No. 2023

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to the building to report for w ork but t ripped when he was “ just about to walk in , ” only “a few feet away” from the front doo r s. ( Id. at p. 33. ) {¶7} Defendant also submitted a n affidavit from G l oria J. Woods, Assistant Di rect or of Leave Administration for Defendant , whose responsibilities include managing workers ’ compensation claims. (Affidavit, ¶ 2.) Woods avers that Defendant is a participant in the Ohio Workers ’ Compensation program and was so in 2019. ( Id. at ¶ 4

- 5.) Woods further avers that “ [e]mployees of [Defendant], including federal work study students , are eligible to file a claim under the Wo rkers ’ Compensation prog ram

. ” ( Id. at ¶ 6. ) {¶8} “ Generally, employers who either pay their workers ’ compensation premiums or are self

- insuring are not ‘ liable to respond in damages at common law or by statute for any injury * * * received or contracted by any employee in the course of or arising out of h is employment * * *.’” Stinnett v. H a lcore Group, Inc. , 165 Ohio App.3d 464, 2006

- Ohio

504, 847 N.E.2d 16, ¶ 12 (10th Dist.), quoting R.C. 4123.74 ; see also Hahn v. Groveport , 10 th Dist. Fran klin No. 07AP

- 27, 2007

- Ohio

- 5559, ¶ 25 , qu oting Maynard v. H.A. M. Landscaping, Inc. , 166 Ohio App.3d 76, 2006

- Ohio

- 1724, 849 N.E.2d 77 , ¶ 17 (8 th D ist.) ( “ ‘ Cases cons truing R.C. 4123.74 have held that this statute provides to employers immunity from liability to employees so long as the employer was in full compliance with the workers ’ compensation statutes at the time of the accident ’ ” ). {¶9} “ To be compensable under the Workers ’ Compensation Act, an injury which arises out of the employment must also be sustained during the course of employment. This element refers to the time, place and circumstances of the injury. ” Slag le v. Whi te Castle Sy

s ., Inc. , 79 Ohio App. 3d 210, 214, 607 N.E.2d 45 (10 t h D ist.1992). “ F or employees with a fixed and limited place of employment, the course of employment is typically restricted to activities occurring on the employer ’ s premises or within the immediat ely a djacent ‘ zone of employment. ’ ” Id. “ [T] he ‘ zone of employment ’ * * * 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. ’ ” Cunningham v. Bone D ry Waterproofing, Inc. , 2016

- O hio

- 3341, 66 N.E.3d 187, ¶ 17 (10 th Dist.) , quoting Merz v. Indus. Comm. , 134 Ohio St. 36, 39, 15 N.E.2d 632 (1938). “ This zone ‘ is not a fixed area, rather, its relative limits or expansion must be determined “ from the logic al and close association of the surrounding area to the premises of employment, together withCase No. 2023

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the particular circumstances and hazards existing in relation there to. ” ’ ” Id. , quoting Berry v. G.C. Murphy Co. , 6th Dist. Lucas No. L

- 81

- 0 49, 1981 Ohio App. LEX IS 11403 (Oct. 2, 1981), quoti ng Frishkorn v. Flowers , 26 Ohio App.2d 165, 169, 270 N.E.2d 366 (8th Dist.1971). {¶10} “ Injuries occurring on the employer’s premises are generally sustained in the course of employment. ” Slagle at 214. “ Injuries that occur in parking lots or walkways owned or controlled by the employer and intended primarily for employees ’ use have been held to be within the zone of employment

. ” Hart v . NCO Fin. Sys. , Inc. , S.D.Ohio No. 2:12

- c v - 733, 2013 U.S. Dist. LEXIS 105 755, *21 (July 29, 20 13)

. “ But injuries sustained while traveling to and from a fixed place of employment are not generally compensa ble because time spent commuting is considered a private activity, not one undertaken in the service of the employer. ” Slag le at 214

. {¶11} “ The ‘ zone of employment ’ rule ‘ has been applied before, during and after an employee ’ s work hours. ’ ” Fitch v. Ameritech Corp. , 10 th D ist. Franklin No. 05A P

- 1277 , 2007

- O hio

- 2725, ¶ 17, quoting Remer v. Conrad , 153 Ohio App. 3d 507, 2003

- Ohio

- 4096, 794 N.E.2d 766 , ¶ 11 ( 6 th D ist. ). {¶12} In this case, i t is undisputed that Plaintiff was an employee of Defendant at the time of the accident. Further, it is undisputed that Plaintiff was injured on Defendant ’ s premises while walking in to the building where he worked, spe cifically on a walkway just a few feet from the front doors that were his normal means of ingress an d egress

. Even though Plaintiff was not yet actively engaged in h is work , the zone of employment test is not contingent on the injury occurring in the actual pe rformance of work duties. See Hicks v. Safelite Group, Inc. , 2021

- Ohio

- 3044, 178 N.E.3d 63, ¶ 1 6 (10 th D ist.)

. As such, there is no genuine issue of fact that Plaintiff was injured in the course of his employment. See Id. at ¶ 19 (employee who fell wh en stepping from a parking lot onto a sidewalk on the way to the building entrance w as injured in the course of employment ). And based upon the uncontroverted aff idavit testimony from Gloria J. Woods , there is no genuine issue of fact that D efendant was at all times a relev ant participa nt in the Ohio Workers ’ Compensation program. Therefore, reasonable minds can only conclude that Defendant is immune from liability under R.C. 4123.74.Case No. 2023

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{¶13} Defendant also argues that , even if Plaintiff ’ s claims were not barred by the Workers ’ Compensation Act, the claims would sti ll fail because the alleged defect in the walkway was open and obvious. Plaintiff argues that the defect was not open and obvious, and that even if it were, there were attendant circumstances that preclu de the application of the open and obvious doctrine

. {¶14} “ In a negligence action, the plaintiff bears the burden of proving by a preponderance of the ev idence that the defendant breached a duty owed to him and that the breach pr oximately caused the injury. ” H arris v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 1 9AP

- 81 , 2019

- Ohio

- 5137, ¶ 7

. Under Ohio law, the duty owed by an owner or occupier of a premises generally depends on whether the injured person is an invitee, licensee, or trespasser

. Glado n v. Greater Cleveland Regiona l Transit Aut h

. , 75 Ohi o St.3d 312, 315 , 662 N. E.2d 287 (1996)

. There is no dispute in this case that Plaintiff was an invitee

. An owner or occupier of a premises generally owes its invitees “a duty of ordinary care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees of latent or hidden dangers

. ” Armstrong v. Best Buy Co., Inc. , 99 Ohio S t.3d 79, 2003

- Ohio

- 2573, 788 N.E.2d 1088 , ¶ 5

. “ However, a premises owner is not an insurer o f its invitees ’ safety against all forms of accident that may occur on its premises. ” Simms v. Penn Natl. Gaming, Inc. , 10 th D ist. Franklin No. 21AP

- 185 , 2022

- Ohio

- 388, ¶ 21. “ Although a pedestrian using a pu blic sidewalk is not required to constantly look downward, a pedestrian is under a duty to care for their own safety as those of ordinary carefulness and prudence would observe

. ” Id. at ¶ 27. {¶15} “ Where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises

. ” Armstrong at ¶ 14

. “ The r ationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.” Simmers v. Bentley Constr. C o

. , 64 Ohio St.3d 642, 644, 597 N.E. 2 d 504 (1992)

. “ O pen - and

- obvious dangers are th ose not hidden, concealed from view, or undiscoverable upon ordinary inspection. ” Thom pson v. Ohio State Univ. Physicians, Inc

. , 10th Dist. Franklin No. 10AP

- 612, 2011

- Ohio

- 2270, ¶ 12

. “ ‘ [T]he dangerous condition at issue does not actually have to be observed by the plaintiff in order for it toCase No. 2023

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b e an “ open and obvious ” condi tion under the law. Rather, the determinative issue is whether the condition is observable. ’” McConnell v. Margello , 10t h Dist. Franklin No. 06AP

- 1235, 2007

- Ohio

- 4860, ¶ 10, quo ting Lydic v. Lowe ’ s Cos. , Inc. , 10 th Dist. Franklin No. 01 AP

- 1432, 2002

- Ohio

- 5001, ¶ 10. {¶16} “ In certa in circumstances, the presence of ‘ attendant circumstances ’ may preclude the application of the open

- and

- obvious doctrine. ” Haynes v. Mussawir , 10th Dist. Franklin Nos. 04AP

- 110 & 04AP

- 117, 2005

- Ohio

- 2428, ¶ 2 2. “ To serve as an exception to the open and obvious doctrine, an attendant circumstance must be ‘ so abnormal that it unreasonably increased the normal risk of a harmful result or reduced the degree of care an ordinary person would exercise. ’” Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dis t. Frankl in No. 09AP

- 54 1, 2010

- Ohio

- 277 4, ¶ 20, quoting Cummin v. Im age Mart, Inc. , 10th Dist. Franklin No. 03AP

- 1284, 2004

- Ohio

- 2840, ¶ 10. “ Although not an exhaustive list, attendant circumstances can include the fol lowing: poor lighting, a large volume of pedestrian traffic, the visibility of the defect, the overall condition of the walkway, and whether the nature of the site is such that one ’ s attention would be easily distracted

. ” Jenkin s v. Ohio Dept. of Rehab . & Corr. , 10 th Dis t. Franklin No. 12AP

- 787, 2013

- Ohio

- 5106, ¶ 16

. {¶17} In his unco ntroverted deposition testimony , Plaintiff testified that he was familiar with the walk way because it was a normal route he would take to g o to and from hi s job and , in his words, “ I had seen the sidewalk that was uneven * * *. ” ( Deposition, p. 34.) Plaintiff authenticated a photograph of the walkway (a copy of which Defendant submitted with its M otion) that he and his brother took a fter the accid ent, depicting a place in the walkway made uneven by a difference in elevation b etween two sections of concret e

. ( Id. at p. 42. ) Rather than look ing at the walkway that he knew to be uneven, Plaintiff testified that he was “ l ooking at the front door s ” of the building when he fell. ( Id. at p. 31

. ) Plaintiff stated that the accident occurred on a warm, sunny afternoon and that nothing distracted him as he walked to ward the building . ( Id. at p p. 30, 34.) Plaintiff stated that there was a sh adow from a tree in the area, but that he has no recollection of it obstructing his ability to see the walkway

. ( Id. at pp. 30 , 40 .) Plaintiff also stated that there were paramedics nearby attending to someone , but that he was not distr acted by them or by anything else when he fell. ( Id. at p. 34.)Case No. 2023

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{¶18} Even when m aking all reasonable inferences in favor of Plaintiff, reasonable minds can o nly conclude that the defect in the walkway was an o pen and obvious condition for which Defendant owed no duty. Plaintif f ’ s testimony establishes that t he defect was observable ; in fact, he already knew the walkway was uneven. And Plaintiff ’ s testimony establishes that there were no attendant circumstances that distracted him a t the time he fell. {¶19} Because Defendant owed no duty, the Court need not address Defendant ’ s remaining arg ument that the defect was a tri vial one for which there can be no liability.

Concl usion {¶20} Based upon the foregoing , the Court concludes that there are no genuine i ssues of material fact and that Defendant is entitled to judgment as a matter of law. Therefore, Defendant ’ s Motion for Summary J udgment is GRANTED and judg me nt is hereby rendered in favor of Defendant. A ll previously scheduled events are VACATED. Court c osts are assessed against Pl aintiff. The c lerk shall serve upon all part ies no tice of this judgment and its dat e of entry u pon the j ournal.

LISA L. SADLER Judge

Filed February 23 , 202 4 Sent to S.C. Reporter 3 / 8 /24