DOROTHY RIVERS, ET AL. PLAINTIFFS-APPELLANTS
OTIS ELEVATOR, ET AL.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-747945
ATTORNEYS FOR APPELLANTS Bruce D. Taubman Brian Taubman Taubman Law.
ATTORNEYS FOR APPELLEES William H. Falin Seamus J. McMahon Moscarino & Treu, L.L.P.
BEFORE: E.T. Gallagher, J., Keough, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
EILEEN T. GALLAGHER, J.
(¶1} Plaintiffs-appellants, Dorothy ("Dorothy") and Thomas ("Thomas") Rivers (collectively referred to as "appellants"), appeal from a summary judgment granted in favor of defendant-appellee Marymount Hospital ("Marymount"). We find no merit to the appeal and affirm.
(¶2} Appellants filed suit to recover damages they sustained when Dorothy tripped and fell while stepping onto elevator number six ("the elevator") at Marymount, where Dorothy was employed as a housekeeper. On the day of the incident, Dorothy came to work as usual and punched the time clock at 7:00 a.m. to begin her shift. At 9:45 a.m., Dorothy pushed a hallway button to call for an elevator to go from the fourth floor to the first floor cafeteria for her 15 minute break. As Dorothy began to enter the elevator, she tripped and fell into the elevator and sustained injuries to her hand, knee, and neck. Dorothy testified at deposition that after she fell, she noticed that the bottom of the elevator was not level with the floor.
(¶3} Dorothy pursued a workers' compensation claim for her injuries. She completed and signed an Ohio Bureau of Workers' Compensation ("BWC") "First Report of an Injury, Occupational Disease or Death, " form, acknowledging that she sustained her injuries while in the course and scope of her employment. Marymount certified Dorothy's workers' compensation claim to the BWC for administration, and Marymount paid Dorothy a total of $61, 527.42 in workers' compensation benefits.
(¶4} In the complaint, appellants alleged that Otis Elevator and Marymount negligently failed to maintain the elevator in a safe condition. They also alleged that Dorothy's receipt of workers' compensation benefits did not bar her negligence claim against Marymount because, at the time of her fall, Marymount was acting in a "dual-capacity" as both employer and non-employer. Thomas sought recovery based on a derivative claim for the loss of his wife's "society, comfort, companionship, and consortium."
(¶5} Appellants settled their claims against Otis Elevator for $15, 000 and subsequently amended their complaint to assert an employer intentional tort claim against Marymount. Marymount answered the complaint and filed a counterclaim for subrogation seeking recovery of the full amount of the workers' compensation benefits it paid to appellants. Marymount alleged that appellants failed to provide Marymount with prior notice of their settlement with Otis Elevator.
(¶6} The trial court granted summary judgment in favor of Marymount on all of appellants' claims. It also granted summary judgment in favor of Marymount on its counterclaim for subrogation. The trial court entered judgment in favor of Marymount in the amount of $61, 527.42. Appellants now appeal and raise five assignments of error.
Standard of Review
(¶7} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact as to the essential element of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party demonstrates that she is entitled to summary judgment, the burden shifts to the nonmoving party to produce evidence related to any issue on which the party bears the burden of production at trial. See Civ.R. 56(E).
(¶8} Civ.R. 56(C), provides that summary judgment is appropriate when, after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
(¶9} In their first assignment of error, appellants argue the trial court erroneously found the dual-capacity doctrine inapplicable. They contend that Marymount acted simultaneously as Dorothy's employer and as a "non-employer" when it allowed Dorothy to use a general public elevator.
(¶10} Under Ohio law, employers who comply with the Workers' Compensation Act are granted immunity from civil liability for unintentional employment-related injuries. In relevant part, R.C. 4123.74 states: "Employers who comply with Section 4123.35 of the Revised Code shall not be liable to respond to damages at common law or by statute for any injury * * * received or contracted by any employee in the course of or arising out of his employment."
(¶11} However, an employer's immunity from liability to its employees under the workers' compensation scheme may not apply if the employer occupies a second persona or capacity in relation to the employer. Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978). In Guy, the Ohio Supreme Court held that a hospital employee could maintain a medical malpractice action against the hospital notwithstanding the immunity from civil liability provided by the workers' compensation system. The court reasoned that by providing medical treatment to the employee, the employer-hospital assumed traditional ...