MESZAROS, Appellee, v. LEGAL NEWS PUBLISHING COMPANY et al., Appellants, 138 Ohio App. 3d 645

Ann Dyke, Administrative Judge. Appellant, Legal News Publishing Company, is appealing the trial court’s grant of

summary judgment in favor of appellee, Robert J. Meszaros. For the following reasons, we affirm. Meszaros was employed by Legal News Publishing Co. Legal News assigned Meszaros to park in a lot owned by the Zion Church. Meszaros received the parking space free as a benefit of his employment. Legal News leased the parking spaces from the church. The lot was located across the street from Legal News, behind the church. Meszaros deposed that on the date of the injury, he parked in his assigned space.

He left the parking lot, walked through an adjacent parking lot owned by Digital Magic, and then walked down the driveway, also owned by Digital Magic. This driveway was used by cars to gain access to the Digital Magic and Zion Church lots. The Legal News employees typically walked down the driveway. Meszaros fell on ice in the driveway. He sustained a right humeral fracture and right pelvic fracture. Meszaros stated that the employees were provided keys to unlock the gate in the church lot and walk down East 30th. He typically did not use the church gate.

When Bill Russ assigned Meszaros to Lot B, he told Meszaros he could enter and leave through Digital Magic’s driveway. Sometimes the Digital Magic lot was closed with a security gate, so the key to the church gate was provided. Meszaros went through the Digital Magic parking lot because it was easier than unlocking the gate. The sidewalk on East 30th was usually not shoveled. The district hearing officer allowed Meszaros’s workers’ compensation claim. The trial court granted

summary judgment in favor of Meszaros. Appellant’s sole assignment of error states: “The trial court erred in extending Meszaros’ ‘zone of employment’ to an area outside of LNP’s control and to which he was not required to cross out of necessity or as a condition of employment.” “As 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.

The general rule, however, does not operate as a complete bar to an employee who is injured commuting to and from work if the injury occurs within the ‘zone of employment.’ ” MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, 663. If the area is under the employer’s control and the street is the sole access route to the place of employment, the employee is within this “zone of employment.” Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 N.E.2d 448.

Even if the street is not under the control of the employer, the employee is within the “zone of employment” if the employee could not reach the plant entrance from the employee parking lot without crossing the public street. Baughman v. Eaton Corp. (1980), 62 Ohio St.2d 62, 16 O.O.3d 45, 402 N.E.2d 1201. If the employee is injured on the public street while traveling from a lot not owned or operated by the employer, which the employees were not required to park in, the employee was not injured in the zone of employment. Weiss v. Univ.

Hosp. of Cleveland (2000), 137 Ohio App.3d 425, 738 N.E.2d 884.) Based on this case law, appellant argues that the Digital Magic driveway was not controlled by appellant and was not the sole means of access to Daily Legal News, so Meszaros was not in the zone of employment.

Weiss noted at 431, 738 N.E.2d at 888, that “the control element can be satisfied because of the conditions created by the employer in the zone of employment, the employee has no choice as to how to travel to his or her employment.” When the employee has no option but to pursue a given course, the pursuance of such course is an implied obligation of the employee in his contract with the employer. Id.; see, also, Baughman, supra. Weiss had a choice of how she traveled to and from her job. Her employer did not require her to park in the assigned lot.

Furthermore, the lot was assigned by University Circle, Inc., not the employer. In this case, appellant assigned appellee to the lot and paid for appellee to park there. Appellant induced appellee to park in this lot. Appellant provided two access routes to appellant’s building. Appellant told appellee he could walk down the Digital Magic driveway or unlock the church gate and walk down East 30th Street. The key to the church gate was provided to use only when the Digital Magic parking lot was locked. Using the Digital Magic driveway was the more convenient route.

The employer intended the employees to use the Digital Magic driveway to get from the parking lot to work. Under the circumstances, appellee had no choice but to park in the lot that was paid for and provided by his employer. While appellee could either walk down the driveway or open the gate and walk down East 30th, the driveway was the most convenient route and a route sanctioned by appellant. The fact that appellee had two ways of getting to work from the parking lot was not relevant in this case in 'determining whether employer’s parking lot was within worker’s “zone of employment.” See Sloss v. Case W. Res.

Univ. (1985), 23 Ohio App.3d 46, 23 OBR 90, 491 N.E.2d 339, citing Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St.2d 18, 21, 39 O.O.2d 11, 13, 225 N.E.2d 241: “ * * * The point appears to be illogical. If an employer provides two accesses and the employee has his choice, an injury on either may not be compensable because the other was available for use.” In this case, the employer provided two means of access, so eligibility should not be based on the fact that Meszaros picked one route over the other, because Meszaros had to choose one of the routes to get from the employer’s lot to his job.

It is not required that the employer actually have control over the area that the injury occurred, if there was limited access to the plant. Baughman, supra. It has been held that control over the area in which the injury occurred is not required in some circumstances. See Sloss v. Case W. Res. Univ. (1985), 23 Ohio App.3d 46, 23 OBR 90, 491 N.E.2d 339; Fogaras v. Univ. Hosp. of Cleveland (1998), 129 Ohio App.3d 653, 718 N.E.2d 974. Lack of due care has no relation whatever to the recovery of ordinary compensation for accidents in industry. Kasari v. Indus.

Comm. (1932), 125 Ohio St. 410, 181 N.E. 809; R.C. 4123.01(C). This case is also distinguishable from Weiss, supra, because in that case, the employee had not yet arrived on the employer’s premises prior to the injury. See Bauder v. Mayfield (1988), 44 Ohio App.3d 91, 93, 541 N.E.2d 98, 99-100. In this case, when appellee arrived in the parking lot, he arrived on premises leased by the company. This case is similar to Baughman, where, the employee had parked his car on his employer’s property before he was injured in a public street between the parking lot and the employer’s plant.

The present case is also distinguishable from Coleman v. Univ. Hosp. of Cleveland (Dec. 16, 1999), Cuyahoga App. No. 75383, unreported, 1999 WL 1206600. This case relies upon Brown v. B.P. Am. Inc. (1993), 85 Ohio App.3d 194, 619 N.E.2d 479, which held that injuries that occur within the zone of employment are compensable only if a special hazard exists. Brown incorrectly interpreted MTD Products, supra, which offered the zone of employment and special hazard exception as two separate exceptions. See Weiss, supra at 430, 738 N.E.2d at 887-888.

The trial court did not err in finding that the accident occurred in the zone of employment. Additionally, there is a causal connection between appellee’s injury and employment under the “totality of the circumstances” test. See MTD, supra, 61 Ohio St.3d at 70, 572 N.E.2d at 664-665; Powers v. Frank Z Chevrolet (1995), 100 Ohio App.3d 718, 654 N.E.2d 1053; Moffitt v. Ohio Bur. of Workers’ Comp. (1991), 78 Ohio App.3d 48, 603 N.E.2d 1110.

Factors relevant under the totality of circumstances test for compensability of injury under workers’ compensation scheme include proximity of scene of accident to place of employment, degree of control employer had over scene of accident, and benefit employer received from injured employee’s presence at scene of accident. MTD, supra. The accident here occurred between the appellant’s parking lot and the plant located across the street. While there was no evidence that appellant had any control over the driveway, control is only one factor to consider. See Powers v.

Frank Z Chevrolet (1995), 100 Ohio App.3d 718, 654 N.E.2d 1053. Appellant benefitted from Meszaros’s being in the driveway after he left his assigned parking lot, because the parking lot was provided as a benefit of employment. Benefits of employment, such as free parking, are used by employers to attract and retain a qualified workforce. Appellant told Meszaros that he could use the Digital Magic driveway. There was a casual connection in the totality of the circumstances between the injury and appellee’s employment.

This case is distinguishable from Coleman, supra, because the injury in Coleman did not occur within a close proximity to the place of employment. There was no evidence as to whether Coleman had any alternatives to taking the shuttle bus which she was injured on, or that her employer told her to take the bus. There was no evidence that parking privileges were a benefit of employment. The trial court did not err in granting

summary judgment in favor of appellee. Appellant’s assignment of error is overruled. The decision of the trial court is affirmed. Judgment affirmed. Kilbane, J., concurs. Michael J. Corrigan, J., dissents.