author: HALL, P.J. FROELICH, J., dissenting:

text:
    STATE of Ohio, Plaintiff-Appellee v. Jada LEWIS, Defendant-Appellant
    No. 2017-CA-19
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on December 29, 2017.
    ANDREW PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor's Office, Appellate Division, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee.
    PATRICK CLARK, Atty. Reg. No. 0094087, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant.
   HALL, P.J.

{¶ 1} Jada Lewis appeals from her conviction and sentence on a first-degree misdemeanor charge of contributing to the delinquency of a minor.

{¶ 2} Lewis advances two assignments of error. First, she contends the trial court improperly imposed a sentence of confinement without first inquiring and determining whether she knowingly, intelligently, and voluntarily waived her right to counsel and asserted her right to self-representation. Second, she challenges the legal sufficiency of the evidence to sustain her conviction

{¶ 3} The record reflects that a complaint was filed against Lewis alleging that she had violated R.C. 2919.24 by acting in a way that tended to cause her fifth-grade son to become delinquent based on habitual truancy. The complaint alleged that the child had 20 unexcused absences between August 19, 2015 and April 5, 2016. (Doc. # 1). Lewis appeared pro se for her arraignment and other pretrial proceedings. She also appeared pro se for her May 25, 2016 trial before a magistrate. Noting that she previously had been advised of her right to counsel, the magistrate deemed her to have waived that right by appearing pro se. (Trial Tr. at 5-6).

{¶ 4} The State's sole witness at trial was Razelle Beloff, the school secretary responsible for attendance records. Beloff testified about Lewis' son's numerous absences, which were unexcused under school policy, primarily because the child did not present a parent's note or a doctor's note upon returning to school. Lewis cross examined Beloff and attempted to establish that many of the absences should be excused based on new documentation and information Lewis provided shortly before trial and during trial. Lewis then presented her own defense, calling school attendance officer Terry Stephens as a witness. Stephens testified about efforts he made to address the child's absences, including a home visit. Finally, Lewis testified and explained that she had kept her son out of school due to sickness or bad weather. She acknowledged not calling the school or sending a note for each absence. She also acknowledged that she had relied on her "absent-minded" son to deliver excuse notes to the school upon his return.

{¶ 5} The magistrate found Lewis guilty of contributing to the delinquency of a minor. The magistrate's ruling included the following factual findings and reasoning:

THIS CO[U]RT FURTHER FINDS the following relevant facts from the evidence and testimony presented:
The defendant testified generally that she sent notes or doctor's excuses with the child on most days that he was absent. She further testified that she knew the child was absent-minded, and that there were days that she could not recall sending in a note with the child.
Ms. Beloff testified that she did not receive any excuses regarding the child's full days absences until May 20, 2016, the figurative eve of this trial. At that time, the defendant submitted to the school parent notes attempting to excuse absences as far back as August 28, 2015, a parent note for a weather absence on January 13, 2016 and a slew of documentation from doctors for the child, his sister and herself, all of which were admitted as evidence in this action as Defendant's Exhibits A-U. Upon receiving the notes and documentation from the defendant, Ms. Beloff changed the record to reflect the absences that would have been excused by the notes.
The Springfield City School District *** Elementary Parent-Student Handbook was introduced as Defendant's Exhibit B. Under the "Absence" section, Step 2 states as follows:
Upon returning [to] school, the student must have a written note signed by the parent or guardian. This note should include the following information: child's name, current date, and day of absence, and the reason for the absence. This should be submitted to the child's teacher. Without a written notice the absence will be considered unexcused.
THE COURT FURTHER FINDS that Ohio Revised Code section 2919.24(A)(1) states no person, including a parent, guardian, or other custodian of a child, shall aid, abet, induce, cause, encourage, or contribute to a child or a ward of the juvenile court becoming an unruly child, as defined in ORC section 2151.022. Ohio Revised Code section 2151.022 indicates that an "unruly child" includes any child who is a habitual truant from school and who previously has not been adjudicated an unruly child for being a habitual truant. Ohio Revised Code section 2151.011(A)(19) defines a habitual truant as any child of compulsory school age who is absent without legitimate excuse for absence from the public school the child is supposed to attend for five or more consecutive school days, seven or more school days in one school month, or twelve or more school days in a school year. Ohio Revised Code section 3321.01 indicates that a child between six and eighteen years of age is of compulsory school age.
The Court finds that the complaint states all the essential elements of the offense, and therefore the Court has subject matter jurisdiction in this matter.
The Court finds from credible evidence and beyond a reasonable doubt that the child has been habitually truant from *** Elementary School in the Springfield City School District by missing twelve or more school days unexcused during the 2015-2016 school year. Furthermore, the defendant aided, abetted, induced, caused, encouraged or contributed to the child becoming an unruly child. Specifically, the Court is not convinced that the defendant faithfully sen[t] notes in with the youth for every absence he incurred. Even if she did, she knew she was sending them with an 11 year old child who she herself described as absent minded.
It is true that the defendant did belatedly attempt to clear the child's absences, and probably went through great effort to do so. But following the school's policy as written in the handbook introduced by the defendant, notes have to be submitted upon the child's return and not almost eight months later. * * *
Given the above the Court finds that the State of Ohio has proved the complaint in this case beyond a reasonable doubt and finds Jada Lewis guilty of the offense of contributing to the delinquency of a minor beyond a reasonable doubt.

(Doc. # 10 at 2-3).

{¶ 6} Lewis filed pro se objections to the magistrate's decision. She argued that no time limit should be placed on providing documentation for a child's absences and that many of her son's absences should be excused. She also argued that attendance officer Stephens never contacted her, that secretary Beloff had altered the record, that Beloff admitted not being perfect and being capable of making mistakes, that Stephens had a history of filing "uninvestigated" claims against her, that Stephens and Beloff engaged in communication between themselves during trial, and that the complaint against her was defective. (Doc. # 12).

{¶ 7} The trial court overruled Lewis' objections in the course of approving and adopting the magistrate's decision. (Doc. # 20). With regard to the child's absences, the trial court reasoned:

THE COURT FURTHER FINDS that as to the allegation that the child of the defendant did or did not return to school with proper notification or written excuse the Court thinks that is putting the cart before the horse. Initially, this Court must determine if the child missed school during the 2015-2016 school year. The magistrate found that it was undisputed that the youth missed 19 days of school and nothing in the record or the defendant's argument or paperwork convinces the Court that the child did not miss school.
THE COURT FURTHER FINDS that it is incumbent upon the Court to determine if legal excuse was provided to the school as required by the policy of the Springfield City School or the laws of the State of Ohio. Springfield City School policy provides that notification of the cause for absence and/or an excuse shall be by written notice signed by a parent or guardian upon returning from school.
THE COURT FURTHER FINDS that the Court can and does reasonably construe the policy to provide that the written excuse for absence must be provided when the child returns to school from the absence. The record does not indicate in any way that the defendant timely or accurately provided the written note signed by parent or guardian which indicated the reason for the absence to the school at the same time the child returned from his absence.
THE COURT FURTHER FINDS that the defendant did not comply with the requirement to provide written notice at the time the child returned to school, and in some instances only did so many months after the absences were incurred.
* * *
THE COURT FURTHER FINDS that it is abundantly clear to the Court that the defendant received notice repeatedly about the absences of her child. The defendant was reasonably advised of the consequences of her failure to get her child to school on time as required by law. Finally, the weight to be given to each witness and the determination of credibility is best left to the trial court. In the absence of a finding that a witness was not credible, the Court does conclude that all witnesses that testified offered some credible testimony and evidence.
THE COURT FURTHER FINDS that the objections raised by the defendant in her motion to appeal the magistrate's decision are not well-taken. The magistrate concluded that the defendant's child missed school without proper excuse and that the defendant aided, abided [sic], abused or caused that to happen. There is nothing in the record that would cause the Court to deviate from that finding and conclusion.

(Id. at 1-3).

{¶ 8} Lewis was sentenced to 180 days in jail with 120 days suspended and the remainder to be served in 20-day increments. She also was ordered to pay a $25 fine plus court costs and was placed on probation for one year. (Doc. # 21). The trial court stayed execution of her sentence pending appeal. (Doc. # 30).

{¶ 9} In her first assignment of error, Lewis contends the trial court erred in imposing a sentence that included confinement without inquiring and determining whether she knowingly, intelligently, and voluntarily waived her right to counsel and asserted her right to self-representation. She argues that it was not enough for the magistrate generally to inform her of her right to counsel, to refer her to the public defender's officer, and then to deem her to have waived counsel when she appeared for trial without representation. Lewis maintains that the proper remedy is to vacate her jail sentence. For its part, the State concedes error, agreeing that the procedure in the present case was inadequate and that the proper remedy is to vacate Lewis' 180-day jail sentence.

{¶ 10} We concur in the parties' assessment that merely advising Lewis about her right to legal representation, either through retained or appointed counsel, was insufficient. See , e.g. , State v. Owens , 2d Dist. Montgomery No. 23150, 2010-Ohio-564, ¶ 16-29, 2010 WL 596979. Absent a proper inquiry into Lewis' ability to retain counsel, waiver of her right to counsel, and invocation of her right to represent herself, the confinement portion of her sentence must be vacated. Id. This includes the suspended 120-day jail term and the 60-day term that Lewis was ordered to serve. Id. at ¶ 30. Her conviction remains valid, however, as does the non-jail portion of her sentence. Id. The first assignment of error is sustained.

{¶ 11} In her second assignment of error, Lewis challenges the legal sufficiency of the evidence to sustain her conviction. Specifically, she contends the State presented insufficient evidence to prove that she "was reckless in her failure to provide *** Elementary School with excuses for [her son's] absences."

{¶ 12} The applicable statute, former R.C. 2919.24, provided as follows at the time of Lewis' offense :

(A) No person, including a parent, guardian, or other custodian of a child, shall do any of the following:
(1) Aid, abet, induce, cause, encourage, or contribute to a child * * * becoming an unruly child, as defined in section 2151.022 of the Revised Code, or a delinquent child, as defined in section 2152.02 of the Revised Code.
(2) Act in a way tending to cause a child * * * to become an unruly child, as defined in section 2151.022 of the Revised Code, or a delinquent child, as defined in section 2152.02 of the Revised Code.

{¶ 13} At the outset of our analysis, we note seeming inconsistencies between the complaint, the evidence presented, and the magistrate's and trial court's finding of guilt. The complaint charged Lewis with acting in a way tending to cause her child to become a delinquent child, even though R.C. 2919.24(A)(2) prohibits acting in a way tending to cause her child to become either an unruly child or a delinquent child. The magistrate's decision, however, discusses aiding, abetting, inducing, causing, encouraging or contributing to her child becoming an unruly child based on habitual truancy, which would be a violation of R.C. 2919.24(A)(1), which prohibits aiding and abetting a child to become either an unruly or delinquent child.

{¶ 14} Citing former R.C. 2151.022, which was in effect at the time of Lewis' offense, the magistrate noted that an "unruly child" includes "[a]ny child who is an habitual truant from school and who previously has not been adjudicated an unruly child for being an habitual truant." (Doc. # 10 at 2). The magistrate also noted that a "habitual truant" includes any child who misses a proscribed number of school days over a particular period of time. See former R.C. 2151.011(B)(19) and current R.C. 2151.011(B)(18). The magistrate then concluded that Lewis' child (who previously had not been adjudicated unruly based on truancy) was a habitual truant because he missed more than 12 days of school without excuse, and that Lewis "aided, abetted, induced, caused, encouraged, or contributed to the child becoming an unruly child. " (Doc. # 10 at 3). Based on that finding, the magistrate declared Lewis "guilty of the offense of contributing to the delinquency of a minor beyond a reasonable doubt." (Id. ). As set forth above, the trial court approved and adopted the magistrate's ruling. (Doc. # 20 at 3).

{¶ 15} The magistrate's finding that Lewis' child missed more than 12 days of school, and therefore was a habitual truant, likely would support a conviction for either aiding, abetting, inducing, causing, encouraging or contributing to him becoming an unruly child in violation of R.C. 2919.24(A)(1) or for acting in a way tending to cause him to become an unruly child in violation of R.C. 2919.24(A)(2). As set forth above, however, the box checked on the charging instrument referred to acting in a way tending to cause her son to become a delinquent child , not an unruly child.

{¶ 16} The fact that the child had more than 12 unexcused absences and was a habitual truant did not necessarily establish that Lewis acted in a way tending to cause him to become a delinquent child. Although, an unruliness adjudication based on truancy establishes the predicate for acting in a way tending to cause the child to become delinquent because of the prior adjudication of the child as unruly based on habitual truancy. Former R.C. 2152.02(F)(2) and (4), which were in effect at the time of Lewis' offense, defined a "delinquent child" to include "[a]ny child who violates any lawful order of the court made under this chapter" and "[a]ny child who is a habitual truant and who previously has been adjudicated an unruly child for being a habitual truant." In other words, the child gets one unruly adjudication for truancy before the offense is elevated to a delinquency charge. The State presented no evidence that Lewis' child was subject to any existing court order regarding school attendance or that he previously had been adjudicated unruly based on habitual truancy.

{¶ 17} We observe, however, that whether Lewis could have acted in a way tending to cause her son to become a delinquent child, as she was charged, or whether she could have aided, abetted, induced, caused, encouraged, or contributed to the child actually becoming a delinquent child by acting in a way or aiding her child to be an unruly child, is not a question we need to resolve. Lewis has not challenged her conviction on the basis that her son's absences might support a conviction under R.C. 2919.24(A)(1) or (2) based on unruliness but her challenge is whether her actions aided or caused delinquency . Her assigned error is quite narrow. She does not address the unruliness/delinquency discrepancy. She challenges only the legal sufficiency of the evidence to establish that she recklessly failed to provide her son's school with timely written excuses for his absences. On this issue, we find her assignment of error to be unpersuasive.

{¶ 18} Lewis correctly notes that a conviction under R.C. 2919.24 requires proof of recklessness. State v. Moody , 104 Ohio St.3d 244, 2004-Ohio-6395, 819 N.E.2d 268. "A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C). Here Lewis argues that she acted at most negligently, not recklessly, in failing to provide the school with timely written excuses. As set forth above, Lewis raises this argument in the context of a challenge to the legal sufficiency of the evidence.

{¶ 19} When a defendant challenges the sufficiency of the evidence, she is arguing that the State presented inadequate evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn , 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist. 2000). "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 20} With the foregoing standards in mind, we find legally sufficient evidence to support a determination that Lewis recklessly failed to provide her son's school with timely written excuses for his absences. In arguing to the contrary, Lewis reasons as follows:

* * * State's Exhibit 1 and Ms. Beloff's testimony establish that *** Elementary School determined the absences to be unexcused in accordance with school policy. However, this alone would only establish culpability if Ms. Lewis were strictly liable under the statute for [her son's] pattern of unexcused absences. The State is required not only to prove that Ms. Lewis failed in her duty to report absences to the school, but that her breach of that duty was reckless. The evidence-that Ms. Lewis called the school on two occasions instead of providing written excuses, and that her regular practice was to provide [her son] with letters to bring to school on his own-may perhaps demonstrate that she deviated from the expected parental standard of care, or that she was merely negligent. But even if [her son] was an absentminded 11-year-old, as Ms. Lewis acknowledged he was, the decision to send him to school with an excuse does not demonstrate a heedless disregard for the possibility that the school will not receive the excuse.
Reviewing the evidence in a light most favorable to the prosecution, it is clear that Ms. Lewis failed to meet her obligation to report [her son's] absences to *** Elementary. However, this failure-even if it was a "substantial lapse from due care"-only rises to the level of criminal negligence. R.C. 2901.22(D). While Ms. Lewis could have apprehended the risk, there is no indication that she perversely disregarded it. Instead, the evidence supports a finding that Ms. Lewis failed to provide the school with notice of [her son's] absences because her communication habits failed to meet the standard of due care. As a result, the State has failed to prove the mens rea necessary to sustain a conviction.

(Appellant's Brief at 12-13).

{¶ 21} We find Lewis' argument to be unpersuasive. School secretary Beloff testified that she did not receive any written excuses regarding Lewis' son's absences until the eve of trial. (Trial Tr. at 37-38). Beloff also testified that she sent Lewis a letter after her son had accrued 10 unexcused absences, advising that a doctor's note would be required for future absences. (Id. at 25-26). Attendance officer Stephens additionally testified that he visited Lewis' home to address her son's absences and left a card in the door, asking her to contact the school. (Id. at 81). In its ruling, the trial court found that "the defendant received notice repeatedly about the absences of her child." (Doc. # 20 at 2). Even if we accept, arguendo, that Lewis gave her son notes to take to the school, the repeated notices she received reasonably should have alerted her to a problem with the notes not being delivered by her admittedly "absent minded" son. Because she purportedly did nothing but continue to send undelivered notes, the trial court reasonably could have found that she acted recklessly.

{¶ 22} In any event, the magistrate was not convinced that Lewis did "faithfully" send notes to the school when her son returned from absences. Her failure to send notes is corroborated by Beloff's testimony that she did not receive any written excuses regarding the absences. The trial court reasonably could have accepted Beloff's testimony about not receiving any notes and could have believed that at least some such notes likely would have been delivered if Lewis actually had sent them with her son. In short, Beloff's testimony about the lack of any notes supports an inference that no notes were sent, despite the school's repeated warnings about absences, providing a second basis upon which the trial court could have found Lewis reckless. Therefore, construing the evidence in a light most favorable to the prosecution, we find legally sufficient evidence to support a finding that Lewis recklessly failed to provide her son's school with written excuses for his absences. The second assignment of error is overruled.

{¶ 23} Having sustained Lewis' first assignment of error, we hereby vacate the confinement portion of her sentence, including both the suspended 120-day jail term and the 60-day term that she was ordered to serve. The rest of Lewis' sentence-which consists of a term of probation, a $25 fine, and court costs-remains in effect. As so modified, the trial court's judgment is affirmed.

TUCKER, J., concurs.

FROELICH, J., dissenting:

{¶ 24} I would find that this Court lacks jurisdiction to address Lewis's assignments of error and would dismiss the appeal, because the juvenile court has not entered a final appealable order.

{¶ 25} After a trial before a magistrate, Lewis was found guilty of the offense of contributing to the delinquency of a minor. The juvenile court judge signed the magistrate's decision the same day. Lewis filed a pro se "appeal" of the magistrate's decision, and the juvenile court filed a judgment entry construing the "appeal" to be a timely objection, pursuant to Juv.R. 40.

{¶ 26} The juvenile court subsequently overruled Lewis's objections, with specific findings, and "adopt[ed] and affirm[ed] the finding and orders of the Magistrate as the findings and final order of the court on this matter." The court ordered a presentence investigation (PSI) and scheduled a sentencing hearing for January 26, 2017.

{¶ 27} The sentencing hearing was conducted by the magistrate, and the magistrate issued a sentencing decision. On the same day, the juvenile court judge signed the magistrate's decision under a sentence that read, "This judgment is adopted as an order of the Court upon filing." The sentencing entry was filed on January 27, 2017. Lewis did not file objections to the magistrate's decision. She now appeals from the January 27, 2017 order.

{¶ 28} I would find that there is no final appealable order. Juv.R. 40(D)(4)(e) requires that a "court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment." See also Civ.R. 53(D)(4)(e). When objections are filed, a judgment entry must include the court's own order resolving the matter (not just adopting a magistrate's decision), resolve any objection, sufficiently address the pending issues so the parties know their rights and obligations by referring only to the judgment entry, and be a document separate from the magistrate's decision. See , e.g., Hall v. Adler , 2d Dist. Montgomery No. 27572 (Aug. 9, 2017) (Decision and Final Judgment Entry); Bennett v. Bennett , 2012-Ohio-501, 969 N.E.2d 344 (2d Dist.).

{¶ 29} A "combined judgment entry signed by both the magistrate and the judge is not a proper 'judgment' from which an appeal lies." Jackson v. Jackson , 4th Dist. Washington No. 13-CA-40, 2014-Ohio-5853, 2014 WL 7671041, ¶ 11, citing Hall v. Darr , 6th Dist. Ottawa No. OT-03-001, 2003-Ohio-1035, 2003 WL 876574, ¶ 28. "The order was not final and appealable because the magistrate and trial court issued a joint decision instead of separate, distinct documents." Perko v. Perko , 11th Dist. Geauga Nos. 2001-G-2403, 2003-Ohio-1877, 2003 WL 1871003, ¶ 5. To be a final order, the judgment must, among other things, "be a document separate from the magistrate's decision." Sabrina J. v. Robbin C. , 6th Dist. Lucas No. L-00-1374, 2001 WL 85157, *3 (Jan. 26, 2001) ; see also Everhome Mtge. Co. v. Kilcoyne , 8th Dist. Cuyahoga No. 96982, 2012-Ohio-593, 2012 WL 506889 (under plain language of Civ.R. 54(A), a court's judgment cannot contain the magistrate's decision).

{¶ 30} An appellate court has jurisdiction to review final orders, judgments, and decrees. Article IV, Section 3(B)(2) of the Ohio Constitution ; R.C. 2505.03. In the absence of a final appealable order, the appeal must be dismissed. The juvenile court's January 27, 2017 entry failed to satisfy the requirements of a final appealable order. Accordingly, I would dismiss the appeal.

{¶ 31} As a secondary matter, the record is somewhat unclear about the offense of which Lewis was convicted: former R.C. 2919.24(A)(1) or R.C. 2919.24(A)(2), and based on unruliness or on delinquency. R.C. 2919.24, entitled "Contributing to unruliness or delinquency," can be violated, by definition, by contributing to delinquency or by contributing to unruliness. And, as stated by the majority, R.C. 2919.24(A)(1) and R.C. 2919.24(A)(2) are separate offenses with distinct elements.

{¶ 32} The complaint filed on April 7, 2016, alleged that Lewis "did act in a way tending to cause the child to become a * * * delinquent child as defined in Section 2152.02(F) * * * in violation of Section 2919.24 * * *." (Emphasis added). This wording charged a violation of R.C. 2919.24(A)(2) and specifically cited delinquency as its basis.

{¶ 33} Consistent with that charge, after a trial, the magistrate filed findings of fact, stating that Lewis was before the court for trial on an allegation that she "did act in a way tending to cause a child to become delinquent as defined in ORC § 2152.02, in violation of ORC § 2919.24." However, the magistrate's decision did not quote R.C. 2919.24(A)(2) and define "delinquent." Instead, it quoted R.C. 2919.24(A)(1) and "found" that an "unruly child" includes any child who is habitually truant. The magistrate then found that Lewis's child was an "unruly child" and that Lewis had aided, abetted, induced, caused, encouraged or contributed to her child's becoming an unruly child-which is consistent with R.C. 2919.24(A)(1). The magistrate nevertheless concluded that the State had proven the "complaint" beyond a reasonable doubt and found Lewis guilty "of the offense of contributing to the delinquency of a minor beyond a reasonable doubt."

{¶ 34} Lewis filed objections, which were overruled. The trial court's entry overruling the objections did not address the inconsistencies in the magistrate's statutory references, and it did not indicate whether the court's guilty verdict was based on R.C. 2919.24(A)(1) or R.C. 2919.24(A)(2) and on unruliness or on delinquency. The January 27, 2017 sentencing entry stated that Lewis was "previously found guilty of contributing to the Delinquency or Unruliness of a Minor in Violation of ORC § 2919.24." (Emphasis added.) Again, it did not identify the specific subsection.

{¶ 35} In short, Lewis was charged with contributing to the delinquency of her child, in violation of former R.C. 2919.24(A)(2), but arguably was found guilty for having contributed to the unruliness of her child, in violation of R.C. 2919.24(A)(1). "In general, absent a negotiated plea agreement or evidence of a lesser included offense, a defendant cannot be convicted of an offense for which he or she has not been charged." State v. Hill , 2d Dist. Montgomery No. 26581, 2015-Ohio-5166, 2015 WL 8551834, ¶ 49. Regardless of whether facts supported her having contributed to the unruliness of her son, Lewis was not on trial for aiding and abetting the unruliness of her child, and the charge was not amended to R.C. 2919.24(A)(1), even after trial. The trial court should clarify the nature of Lewis's conviction in its final judgment entry.

      We recognize the dissent's view that an appealable "judgment" must be a separate document from the magistrate's decision and that, under Civ.R. 54(A), it may not "contain the magistrate's decision." See infra at ¶ 29. Here the magistrate filed a detailed decision imposing sentence. On the same piece of paper, but under a separate signature line, the trial court adopted the magistrate's decision as its own judgment entry. We believe the trial court adequately entered a judgment in this case, within the meaning of Juv.R. 40(D)(4)(e), notwithstanding the fact that it did so on the same piece of paper.

      We note that the statutory language was rearranged effective April 6, 2017.

      We note that R.C. 2151.022 also was amended and modified effective April 6, 2017.

      As relevant here, the statute defined a "habitual truant" to include a child who is absent "without legitimate excuse" for 12 or more school days in a school year. This statute too was modified effective April 6, 2017. A "legitimate excuse" includes an excuse that meets the requirements of rules established by a local school district board of education. See R.C. 3321.04(C) as well as former R.C. 2151.011(B)(23) and current R.C. 2151.011(B)(22).

      In State v. Gans , 168 Ohio St. 174, 151 N.E.2d 709 (1958), the Ohio Supreme Court explained the difference between aiding, abetting, inducing, causing, encouraging or contributing to unruliness or delinquency and acting in a way tending to cause unruliness or delinquency. When the State proceeds under the aiding-and-abetting clause, it must prove that the child actually was unruly or delinquent. No such showing is required when the State proceeds under the acting-in-a-way-tending-to-cause language. "It is apparent that the purpose of that clause is to prevent a delinquency [or unruliness] before it occurs rather than to await such delinquency [or unruliness] and then punish the adult offender. The purpose of the clause is to avoid the undesirable result which might arise if an adult is permitted to pursue a course of conduct which tends to cause a child to become a delinquent [or unruly]." Id. at 175-176, 151 N.E.2d 709.

      Effective April 6, 2017, the statute defines a "delinquent child" in the present context to include "a child who violates a court order regarding the child's prior adjudication as an unruly child for being an habitual truant." R.C. 2152.02(E)(2).

      Although we may notice plain error that was not raised below, any non-jurisdictional error still must be raised by a party on appeal before we properly may correct it. Significantly, the inconsistency we have observed could have been raised in the trial court but it was not. Had the issue been raised in a timely manner, the State could have requested amendment of the complaint which likely would have been permitted given the alternative nature of R.C. 2919.24(A)(1) and (2) where aiding, or causing, either unruliness, or delinquency would suffice. In these circumstances we elect not to conclude this is plain error or one we should notice sua sponte.


source: Caselaw Access Project

author: HENSAL, Presiding Judge.

license: Public Domain

text:
    Betty JACKSON, Appellant v. AKRON SUMMIT COUNTY LIBRARY, Appellee
    No. 28474
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: December 29, 2017
    RUSSELL SMITH, Attorney at Law, for Appellant.
    JAMES T. REAGAN, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   HENSAL, Presiding Judge.

{¶ 1} Betty Jackson appeals from the judgment of the Summit County Court of Common Pleas, granting summary judgment to Akron Summit County Public Library. We affirm.

I.

{¶ 2} This appeal stems from a refiled action wherein Betty Jackson sued the Akron Summit County Public Library (the "Library") for compensatory damages related to injuries she sustained after tripping and falling on concrete outside of the Highland Square Branch Library.

{¶ 3} According to Ms. Jackson, she went to the Highland Square Branch Library to use the Internet for her job. At her deposition, Ms. Jackson testified that she entered the library without incident and did not observe any hazards. She then exited the library through the same set of doors that she used upon entering, indicating that nothing obstructed the view in front of her. After taking several steps, she fell onto the concrete. Ms. Jackson testified that she did not know the cause of her fall. There was no dispute, however, that concrete slabs near where Ms. Jackson fell had "heaved," thereby creating a roughly one-inch "ridge or lip" between the slabs, and that the branch manager had submitted a work order prior to Ms. Jackson's fall indicating that the heaved concrete posed a potential tripping hazard. There was also no dispute that an orange cone was placed outside of the Highland Square Branch Library's entrance prior to Ms. Jackson's fall.

{¶ 4} The Library moved for summary judgment, arguing that: (1) it was entitled to political-subdivision immunity under Revised Code Section 2744; (2) Ms. Jackson could not establish negligence because she could not identify the cause of her fall; (3) any height differential between the concrete slabs that Ms. Jackson allegedly tripped over constituted a trivial defect; and (4) any height differential between the concrete slabs that Ms. Jackson allegedly tripped over was an open-and-obvious hazard.

{¶ 5} In response, Ms. Jackson argued that: (1) the Library acted recklessly, wantonly, negligently, and willfully by not repairing the discrepancy in the concrete slab levels, by not warning patrons, and/or by not temporarily closing the Highland Square Branch Library while awaiting a repair; (2) other information that she became aware of subsequent to her deposition-including expert reports and surveillance video showing her fall-proved that the heaved concrete caused her fall ; (3) she was an invitee, not a licensee, for purposes of establishing the applicable duty of care; (4) the Library wrongfully caused and permitted the physical defect to remain in violation of Section 2744.02(B)(4); (5) no defenses to immunity under Section 2744.03 applied; and (6) the hazard was unlikely to be seen by someone entering the library because the raised "ridge or lip" faced the library and, upon exiting, the two sets of glass doors and the orange cone would have made it difficult for someone to see the raised concrete. Ms. Jackson also argued that a "significant height difference" existed between the concrete slabs, which created "a hidden danger."

{¶ 6} The trial court granted the Library's motion, holding that the height differential between the concrete slabs was "observable[.]" It, therefore, held that the Library did not owe Ms. Jackson a duty of care, and further held that no exception to political-subdivision immunity applied. Ms. Jackson now appeals, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

* * * THE TRIAL COURT ERRED BY GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

{¶ 7} In her assignment of error, Ms. Jackson argues that the trial court erred by granting summary judgment to the Library. Ms. Jackson makes several assertions in support of her position. To summarize, she asserts that: (1) the hazard was not a minor defect; (2) the orange cone placed outside of the library could have drawn someone's attention away from the hazard, as opposed to serving as a warning; (3) a dog that a library patron tethered to a bench outside would have been a distraction; (4) "experience and survival genetics" causes people to look forward while entering public doorways to prevent colliding with others, which is "probably something that should be considered both as an attenuating circumstance and as part of the mental framework of a human being"; (5) the Library had a duty to warn her of the hazard; (6) the height differential between the concrete slabs was not an open-and-obvious hazard; (7) attendant circumstances existed; (8) the trial court improperly substituted the word "[o]bservable" for "[o]pen and obvious"; and (9) the library's two sets of glass automatic doors negatively impacted her ability to see the hazard.

{¶ 8} This Court reviews a trial court's grant of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civil Rule 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 9} "The moving party bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact." Deutsche Bank Natl. Trust Co. v. Byrd , 9th Dist. Summit No. 27280, 2014-Ohio-3704, 2014 WL 4215100, ¶ 7, citing Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "If the moving party meets this burden, then the non-moving party bears the burden to offer specific facts demonstrating a genuine issue for trial." Id. , citing Dresher at 292-293, 662 N.E.2d 264.

{¶ 10} As previously noted, the Library argued that it was entitled to summary judgment on the basis of immunity under Revised Code Chapter 2744. With respect to political-subdivision immunity, the Ohio Supreme Court has stated:

R.C. Chapter 2744 sets out the method of analysis, which can be viewed as involving three tiers, for determining a political subdivision's immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule that political subdivisions are not liable in damages. In setting out this rule, R.C. 2744.02(A)(1) classifies the functions of political subdivisions into governmental and proprietary functions and states that the general rule of immunity is not absolute, but is limited by the provisions of R.C. 2744.02(B), which details when a political subdivision is not immune. Thus, the relevant point of analysis (the second tier) then becomes whether any of the exceptions in R.C. 2744.02(B) apply. Furthermore, if any of R.C. 2744.02(B)'s exceptions are found to apply, a consideration of the application of R.C. 2744.03 becomes relevant, as the third tier of analysis.

Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000).

{¶ 11} Here, there is no dispute that the Library satisfied the first tier of the analysis, that is, that it is a political subdivision carrying out a governmental function. See R.C. 2744.01(C)(2)(d) (providing that a "free public library system" is a "governmental function"). Regarding the second tier, the only potentially applicable exception to general immunity is Section 2744.02(B)(4), which provides, in relevant part, that:

political subdivisions are liable for injury * * * to [a] person * * * that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function * * *.

(Emphasis added.)

{¶ 12} Even assuming that the height differential between the concrete slabs constituted a "physical defect[ ]" for purposes of this Section, Ms. Jackson was still required to establish that a genuine issue of material fact existed as to whether the Library employees acted negligently. "To establish a claim of negligence in Ohio, a plaintiff must show the existence of a duty, a breach of that duty, and injury directly and proximately resulting from a breach of that duty." Stein v. Honeybaked Ham Co. , 9th Dist. Summit No. 22904, 2006-Ohio-1490, 2006 WL 786509, ¶ 10.

{¶ 13} Importantly, "[t]he existence of a duty is crucial to establishing a claim for negligence; without a duty, legal liability cannot exist." Id. Relevantly, "[w]here a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises." Armstrong v. Best Buy Co. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. "The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning[,]" and, 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. Co. , 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992). The doctrine, therefore, "acts as a complete bar to any negligence claims." Armstrong at ¶ 5.

{¶ 14} As previously noted, the trial court found that the height differential between the concrete slabs was "observable[.]" Although Ms. Jackson takes issue with the trial court's use of the term "observable," this Court has stated that the determinative issue as to whether a hazard is open and obvious is "whether the condition is observable[,]" regardless of whether the plaintiff actually observed the hazard. Baker v. Bob Evans Farms, Inc. , 9th Dist. Wayne No. 13CA0023, 2014-Ohio-2850, 2014 WL 2957465, ¶ 11, quoting Kirksey v. Summit Cty. Parking Deck , 9th Dist. Summit No. 22755, 2005-Ohio-6742, 2005 WL 3481536, ¶ 11 ; McQuown v. Coventry Twp. , 9th Dist. Summit No. 28202, 2017-Ohio-7151, 2017 WL 3426765, ¶ 28 ("Our inquiry on this point is an objective one and the fact that a plaintiff was unaware of the hazard is not dispositive.").

{¶ 15} "When considering whether a danger is observable, a court must look to the totality of the circumstances, considering 'both the nature of the dangerous condition and any attendant circumstances that may have existed at the time of the injury.' " Baker at ¶ 11, quoting Gehm v. Tri-County, Inc. , 9th Dist. Lorain No. 09CA009693, 2010-Ohio-1080, 2010 WL 1016091, ¶ 8. "While there is no precise definition of attendant circumstances, they would include 'any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time.' " Jenks v. City of Barberton , 9th Dist. Summit No. 22300, 2005-Ohio-995, 2005 WL 544838, ¶ 16, quoting McLain v. Equitable Life Assurance Co. of the United States , 1st Dist. Hamilton No. C-950048, 1996 WL 107513, *4-5 (Mar. 13, 1996). "The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall." Stockhauser v. Archdiocese of Cincinnati , 97 Ohio App.3d 29, 33, 646 N.E.2d 198 (2d Dist.1994).

{¶ 16} Here, Ms. Jackson testified that she did not notice a hazard as she entered the library. She testified that as she exited the library, she "[j]ust s[aw] cars, [was] looking around, just seeing people going by on the streets and then [she] kind of looked where [she] was going and that's all." She then testified that nothing had obstructed her view. Notably, in her summary-judgment briefing, Ms. Jackson described the height differential between the two concrete slabs as "significant[.]"

{¶ 17} Despite arguing that: (1) the orange cone could have drawn someone's attention away from the hazard; (2) a dog that a library patron tethered to a bench outside of the library would have been a distraction; and (3) "experience and survival genetics" causes people to look forward while entering public doorways to prevent colliding with others, no evidence in the record-including Ms. Jackson's own deposition testimony-indicates that Ms. Jackson was actually distracted by the orange cone, the dog, or other library patrons entering and exiting the library. Indeed, she testified that nothing obstructed her view as she entered and exited the library, and that she was simply "looking around[.]"

{¶ 18} Having reviewed the record, we cannot say that Ms. Jackson met her reciprocal burden of offering specific facts demonstrating a genuine issue for trial with respect to the open-and-obvious nature of the hazard. See Dresher , 75 Ohio St.3d 280, at 293, 662 N.E.2d 264 (1996). Because the open-and-obvious nature of a hazard "acts as a complete bar to any negligence claims[,]" we hold that the trial court properly granted summary judgment in favor of the Library. Armstrong , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 5. Ms. Jackson's assignment of error is overruled.

III.

{¶ 19} Betty Jackson's assignment of error is overruled. The Judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, J.

CALLAHAN, J.

CONCUR.

      The Library argues that an errata sheet Ms. Jackson filed in her previous lawsuit (i.e., not the refiled action from which Ms. Jackson has appealed) against the Library should be stricken from the record because it contradicts her deposition testimony. According to the Library, Ms. Jackson's errata sheet identifies the uneven concrete slabs as the cause of her fall. That errata sheet, however, is not part of the record before this Court. Accordingly, it cannot be considered for purposes of this Court's disposition of Ms. Jackson's appeal. The Library also argues that this Court should strike other items from the record, including Ms. Jackson's affidavit wherein she averred that she observed an orange cone "on the walkway alongside the turn-off driveway" (as opposed to the orange cone positioned near the library's entrance), and an amended expert report wherein her expert opined that the Library acted wantonly and recklessly by failing to maintain the walkway. Given the record before this Court, neither the location of the orange cone, nor Ms. Jackson's expert's opinion, affects this Court's analysis.


author: OSOWIK, J.

text:
    STATE of Ohio, Appellee v. Cory SPEELMAN, Appellant
    No. L-16-1295
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: December 29, 2017
    Julia R. Bates, Prosecuting Attorney, and Matthew Simko, Assistant Prosecuting Attorney, for appellee.
    Jerome Phillips and Eric Allen Marks, Toledo, for appellant.
    DECISION AND JUDGMENT
   OSOWIK, J.

{¶ 1} This is an appeal from an August 31, 2016 judgment of the Lucas County Court of Common Pleas, denying appellant's motion to suppress in the underlying aggravated vehicular homicide case. For the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} Appellant, Cory Speelman, sets forth the following assignment of error:

FIRST ASSIGNMENT OF ERROR: THE LOWER COURT ERRED IN DENYING APPELLANT's MOTION TO SUPPRESS.

{¶ 3} The following undisputed facts are relevant to this appeal. On Friday, August 21, 2015, at approximately 2:47 a.m., appellant was driving his motorcycle on I-75 in the city of Toledo, accompanied by a female passenger riding along on the motorcycle.

{¶ 4} At the time of the accident, appellant was driving the motorcycle at a rate of speed estimated to be at or above 102 m.p.h. in a 65 m.p.h. speed limit zone. Appellant and the passenger were not wearing helmets.

{¶ 5} While travelling at this extreme rate of speed, appellant's motorcycle slammed into the rear end of a motor vehicle traveling in front of appellant on the freeway. The impact of the collision occurred with such force that appellant's passenger ("victim") was ejected and thrust forward approximately 450 feet in front of the location where the motorcycle came to rest. The victim was killed as a result of blunt force trauma sustained in the impact of the accident.

{¶ 6} The driver of the motor vehicle struck by appellant attempted to assist and immediately summoned emergency services. When Toledo police officers arrived on the scene shortly thereafter, one of the responding officers found appellant injured so severely that the officer presumed appellant to be deceased. Appellant's eyes were closed, appellant did not respond to any commands, could not communicate, and was emitting audible gurgling noises.

{¶ 7} In conjunction with the above observations, the responding officers noted that this accident occurred shortly after closing time at area bars, that the horrific impact of the accident was consistent with appellant traveling significantly in excess of the speed limit, and upon approaching appellant immediately detected a very strong odor of alcohol. Responding fire personnel similarly smelled the strong odor of alcohol emanating from appellant.

{¶ 8} Upon arrival at St. Vincent Mercy Medical Center for emergency treatment in a successful effort to save appellant's life, the treating trauma nurse observed appellant to score a 3 on the Glasgow coma scale, a scale utilized to measure a patient's cognitive mental state. Appellant subsequently scored a 4 on the scale. Both scores reflect that appellant was unconscious and unable to communicate.

{¶ 9} R.C. 4511.191(A)(4) establishes that, "[A] person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented," setting forth the statutory circumstances in which consent is implied so as to permit the seizure of bodily substances in connection to the investigation of the commission of a suspected crime.

{¶ 10} Given the above-described facts and circumstances surrounding the late night, high-speed, fatal motorcycle accident, both the Toledo Police Department and the treating emergency medical personnel obtained and tested appellant's blood for the presence of alcohol at the time of the incident. The tests revealed appellant's blood-alcohol level to be in excess of the legal limit.

{¶ 11} On February 5, 2016, appellant was indicted on one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1), a felony of the second degree, and one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2), a felony of the third degree. Both offenses arose from the underlying August 21, 2015 fatal motor vehicle accident.

{¶ 12} On March 7, 2016, appellant filed a motion to suppress. Appellant subsequently filed an amended motion to suppress on June 21, 2016. On June 22, 2016 a motion to suppress hearing was conducted by the trial court.

{¶ 13} At the motion to suppress hearing, the trial court heard direct testimony from the officers who arrived at the scene of the accident shortly after it occurred. The officers testified that appellant appeared to be deceased. One responding officer observed and testified that appellant's injuries were so severe that much of appellant's facial skin was torn off and gone, appellant could not communicate, could not respond to commands, and was making a distinctive gurgling noise indicative of the severity and potentially fatal nature of appellant's injuries.

{¶ 14} In addition, one of the responding officers observed appellant to have sustained a severe leg injury that appeared to have possibly severed an artery, such that the officer felt the appellant could possibly bleed out and pass away. Appellant's eyes were closed. Appellant strongly smelled of alcohol. Given these facts and circumstances, in conjunction with the fact that the motor vehicle accident had killed appellant's passenger, the responding officers requested a blood kit for alcohol testing as soon as possible.

{¶ 15} In the course of reaching the subject motion to suppress decision, the trial court noted that in addition to the late night timing of the fatal accident, the extremely high rate of speed that appellant was travelling, the fact that the victim was ejected with such force that she was recovered a substantial distance away from the location of impact, approximately 450 feet from the location where the motorcycle was located, and the strong odor of alcohol detected by the responding officers and fire department personnel upon appellant's person, ample evidence of probable cause existed regarding whether appellant was unlawfully operating the motorcycle under the influence of alcohol at the time of the fatal accident.

{¶ 16} In conjunction with the above, the trial court noted that R.C. 4511.191(B) expressly authorizes the withdrawal of blood from an unconscious person, whether or not the person is under arrest, when the officer has reasonable cause to believe the person was operating a motor vehicle under the influence of alcohol. The court further found that due to the severity of appellant's injuries, the fact that appellant was unconscious and unable to communicate, appellant was incapable of refusal.

{¶ 17} The court consistently found that due to the accident killing appellant's passenger, so severely injuring appellant that his life was in jeopardy, and the fact that appellant's body was naturally processing the blood so as to potentially destroy evidence if the blood was not secured in a timely fashion, there was not a reasonable opportunity to secure a warrant prior to the blood retrieval. Appellant's motion to suppress was denied.

{¶ 18} On October 11, 2016, following the motion to suppress denial, appellant pled no contest on the first count of the two counts of aggravated vehicular homicide and was found guilty. A presentence investigation was conducted.

{¶ 19} On November 22, 2016, appellant was sentenced to a mandatory five-year term of incarceration, a mandatory three-year term of post-release control, as well as restitution and a lifetime license suspension. This appeal ensued.

{¶ 20} In the assignment of error, appellant maintains that the trial court erred in denying appellant's motion to suppress. We do not concur.

{¶ 21} It is well-established that in reviewing a disputed motion to suppress determination, this court must assume that the trier of fact is best suited to evaluate and resolve the matter. This court must defer to the trial court ruling if it is supported by competent, credible evidence. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 22} R.C. 4511.191(A)(4) establishes that, "[A] person who is dead or unconscious, or otherwise is in a condition wondering the person incapable of refusal, shall be deemed to have consented * * * and the test or tests may be administered."

{¶ 23} In support of this appeal, appellant maintains that Ohio's implied consent statute is unconstitutional given the recent United States Supreme Court ruling in Birchfield v. North Dakota , 579 U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). We do not concur. We have reviewed Birchfield and found it to be materially distinguishable from, and inapplicable to, the instant case.

{¶ 24} While Birchfield does stand for the proposition that a blood draw can be an unconstitutional method in order to obtain a blood alcohol concentration level in the context of a limited set of circumstances that must be present, our scrutiny of the ruling makes clear that it is only applicable in those cases in which a suspect is conscious and physically able to alternatively furnish a less intrusive breath test for the detection of the potential presence of alcohol.

{¶ 25} As clearly stated regarding blood tests in Birchfield , at paragraph one of the syllabus, "[T]heir reasonableness must be judged in light of the availability of the less invasive alternative of a breath test." By contrast, the facts and circumstances of this case clearly reflect that appellant was severely injured, unconscious, unable to communicate, and clearly unable to perform a less invasive breath test. The scenarios examined in Birchfield entailed parties capable of participating in an alternative breath test. Given the unavailability of conducting a breath test in the instant case, Birchfield does not implicate the propriety of the subject blood test.

{¶ 26} The record of evidence reflects that appellant was driving his motorcycle with a passenger upon I-75 late at night, driving at an extremely high rate of speed, rammed into the rear of a lawfully traveling vehicle with such tremendous force that the body of the victim was ejected and recovered approximately 450 feet further from the location where the motorcycle came to a stop.

{¶ 27} The record of evidence further reflects that upon arrival at the scene, the responding officers initially presumed appellant to also be deceased based upon his appearance and injuries, found him to be unconscious, unresponsive, incapable of communication, sustained severe injuries to his face and leg, required immediate emergency medical attention, and exhibited a strong odor of alcohol emanating from his person.

{¶ 28} We find that the record of evidence reflects ample competent, credible evidence in support of the disputed trial court motion to suppress determination. The record contains a wealth of probable cause evidence suggesting that appellant had been unlawfully driving the motorcycle while under the influence of alcohol.

{¶ 29} The record reflects that responding emergency services personnel were presented with a scenario in which, even if appellant survived, appellant was unconscious, unable to consent, and physically unable to furnish the less invasive breath test. Wherefore, we find that the trial court properly denied appellant's motion to suppress.

{¶ 30} On consideration whereof, we find appellant's assignment of error not well-taken. The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the cost of this appeal pursuant to App.R. 24.

Judgment affirmed.

James D. Jensen, P.J.

Mark L. Pietrykowski, J.

CONCUR.


author: WELBAUM, J.

text:
    Aysha OSTEN, Plaintiff-Appellant v. BUREAU OF WORKERS' COMPENSATION, et al., Defendants-Appellees
    No. 27583
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on December 29, 2017
    GARY D. PLUNKETT, Atty. Reg. No. 0046805, RACHEL D. SIEKMAN, Atty. Reg. No. 0091012, 3033 Kettering Boulevard, Suite 201, Dayton, Ohio 45439, Attorneys for Plaintiff-Appellant
    DAVID C. KORTE, Atty. Reg. No. 0019382, MICHELLE D. BACH, Atty. Reg. No. 0065313, JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 West First Street, Suite 200, Dayton, Ohio 45402, Attorneys for Defendant-Appellee-PSA Airlines, Inc.
    NATHAN P. FRANZEN, Atty. Reg. No. 0092532, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215, Attorney for Defendant-Appellee-Bureau of Workers' Compensation
   WELBAUM, J.

{¶ 1} Plaintiff-Appellant, Aysha Osten, appeals from a judgment dismissing her appeal from a decision of Defendant-Appellee, Sarah D. Morrison, Administrator of the Bureau of Workers' Compensation ("BWC"). Osten contends that the trial court erred when it concluded that she did not have a right to participate in the Workers' Compensation Fund as a matter of law.

{¶ 2} We conclude that the trial court correctly found that Osten, a traveling employee, was on a personal errand at the time of her injury and was not entitled to receive workers' compensation benefits. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On January 27, 2016, Aysha Osten was employed as a flight attendant by Defendant-Appellee, PSA Airlines, Inc. ("PSA"). After completing her flight for the day at about 12:30 p.m., Osten checked into a Hampton Inn located near LaGuardia Airport in New York City. That evening, after going to dinner with other PSA employees, Osten fell on a public sidewalk while returning to the Inn, and sustained injuries to her wrists and knees.

{¶ 4} Osten applied for Workers' Compensation and was initially approved for benefits based on contusions of the wrists and knees. However, on April 14, 2016, a district hearing officer vacated the order of the administrator and denied benefits to Osten. The decision was based on a conclusion that the injury occurred in the course of Osten's own errand, not on an errand of PSA, and that the errand was not sufficiently connected to Osten's employment.

{¶ 5} Osten appealed, but a staff hearing officer affirmed the decision on May 27, 2016. After the BWC denied further appeal, Osten filed a notice of appeal and a complaint with the trial court on July 29, 2016, naming the BWC and PSA as defendants. Subsequently, PSA and Osten filed cross-motions for summary judgment in March 2017. BWC did not file a summary judgment motion, but agreed with PSA's position. The trial court then rendered summary judgment in PSA's favor in May 2017, finding that Osten was on a personal errand at the time of her injury and was not entitled to participate in the workers' compensation fund. The court, therefore, dismissed Osten's case. Osten timely appealed from the trial court's decision.

II. Entitlement to Participate in the Workers' Compensation Fund

{¶ 6} Osten's sole assignment of error states that:

The Trial Court Erred When It Failed to Find that Appellant Was a Traveling Employee Who Has a Right to Participate in the Workers' Compensation Fund as a Matter of Law.

{¶ 7} Under this assignment of error, Osten contends that she was not on a personal errand at the time of her injury. Her argument is based on several factors, including her receipt of an hourly wage during travel, her employer's mandate that she stay at a particular hotel, and the emphasis in the union contract on the nutritional needs of flight crews.

{¶ 8} As was noted, the trial court granted summary judgment against Osten and dismissed her complaint for benefits. "A trial court may grant a moving party summary judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor." Smith v. Five Rivers MetroParks , 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999), citing Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). "We review decisions granting summary judgment de novo, which means that we apply the same standards as the trial court." (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co. , 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

{¶ 9} The Workers' Compensation Act is codified in R.C. Chap. 4123. Injuries that employees sustain are compensable for purposes of the Workers' Compensation Act only if they were " ' "received in the course of, and arising out of, the injured employee's employment." ' " Fisher v. Mayfield , 49 Ohio St.3d 275, 276, 551 N.E.2d 1271 (1990), quoting Bralley v. Daugherty , 61 Ohio St.2d 302, 401 N.E.2d 448 (1980). (Other citations omitted.) " '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.' " (Citations omitted.) Id. at 276-277, 551 N.E.2d 1271.

{¶ 10} The coverage formula of " 'in the course of and arising out of' " employment is conjunctive, and applicants must meet all elements of the formula to recover under the Act. Fisher at 277, 551 N.E.2d 1271. The term " 'in the course' " is associated with "the time, place and circumstances of the injury," while " 'arising out of' * * * contemplates a causal connection between the injury and the employment." Id. at 277-278, 551 N.E.2d 1271.

{¶ 11} Regarding the first prong, benefits are limited "to employees who sustain injuries while engaged in a required employment duty or activity consistent with their contract for hire and logically related to the employer's business." Friebel v. Visiting Nurse Assn. of Mid-Ohio , 142 Ohio St.3d 425, 2014-Ohio-4531, 32 N.E.3d 413, ¶ 13, citing Ruckman v. Cubby Drilling, Inc. , 81 Ohio St.3d 117, 120, 689 N.E.2d 917 (1998).

{¶ 12} With respect to the second prong, which relates to "arising out of" employment, the existence of a sufficient causal connection "depends upon the 'totality of the facts and circumstances' regarding the accident." Lord v. Daugherty , 66 Ohio St.2d 441, 444, 423 N.E.2d 96 (1981) ; Fisher , 49 Ohio St.3d at 277, 551 N.E.2d 1271. These "circumstances include: (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." (Citation omitted.) Lord at 444, 423 N.E.2d 96. Accord Friebel at ¶ 14 ; Fisher at 277, 551 N.E.2d 1271. This list of factors is not exclusive, but is "intended to be illustrative of the factors that need to be considered." Fisher at 279, fn.2, 551 N.E.2d 1271. Furthermore, the coverage requirements are liberally construed in an employee's favor. (Citation omitted.) Id. at 278, 551 N.E.2d 1271.

{¶ 13} In Friebel , the Supreme Court of Ohio commented that in addition to the above factors, " 'similar fact patterns have promulgated their own set of rules.' " Id. at ¶ 15, quoting Fisher at 280, 551 N.E.2d 1271. As an illustration, the court noted that "for employees who travel regularly for work and who are injured away from the workplace during an employment-related trip, courts have generally held that the employee is entitled to benefits unless the injury occurred while the employee was on a personal errand." (Citation omitted.) Id.

{¶ 14} Osten does not disagree with the above methods of analysis. However, in the context of whether her errand was "personal," Osten relies on Griffith v. Miamisburg , 10th Dist. Franklin No. 08AP-557, 2008-Ohio-6611, 2008 WL 5235168, which involved a traveling employee who was injured while playing basketball at a training facility after formal training hours ended. Id. at ¶ 3. The court of appeals held that the injury occurred during the course of his employment and that a sufficient causal connection existed between the injury and employment. Id. at ¶ 12-35. Osten contends that the situation in Griffith is identical to the case before us, because the employee in Griffith was paid his normal wages during training while he was away from home. Id. at ¶ 2.

{¶ 15} Osten also relies on the fact that she was constrained by PSA's selection of hotels, and that nourishment was contractually a vital part of flight crew requirements during layovers. She contends that these circumstances are similar to those in Griffith , where the employee stayed at a training academy paid for by his employer. Id. The employer also encouraged the employee to remain at the academy during the duration of a two-week training session, and would not pay for his lodging or meals elsewhere. Id.

{¶ 16} In contrast, PSA and BWC rely on Cline v. Yellow Transp., Inc. , 10th Dist. Franklin No. 07AP-498, 2007-Ohio-6782, 2007 WL 4395409. Cline involved a truck driver who was injured while staying in lodging provided by his employer for required rest breaks. Id. at ¶ 3-6. At the time of his injury, the truck driver had left the hotel and was crossing the street to go to a restaurant. Id. at ¶ 5-6. The court of appeals concluded that the truck driver was on a personal errand at the time of his injury and "was not engaged in activity that benefitted [his employer] or furthered its business." Id. at ¶ 21. In making this decision, the court applied the Lord test to decide if the employee's act of traveling to a restaurant while on a rest break was compensable. Id. at ¶ 13 and 21, citing Lord , 66 Ohio St.2d 441, 423 N.E.2d 96. (Other citations omitted.)

{¶ 17} As was noted, the first Lord factor concerns the proximity of the accident scene to the place of employment. Lord at 444, 423 N.E.2d 96. The court of appeals gave little weight to this factor, because the accident did not occur within the truck driver's zone of employment, but occurred on a personal errand. Cline at ¶ 22. The second factor is "the degree of control the employer had over the scene of the accident." Lord at 444, 423 N.E.2d 96. Concerning this factor, the court of appeals found that the employer did not control the roadway where the injury occurred. Cline at ¶ 23.

{¶ 18} The third factor concerns "the benefit the employer received from the injured employee's presence at the scene of the accident." Lord at 444, 423 N.E.2d 96. With respect to this issue, the court of appeals noted that the employer derived no cognizable benefit from the truck driver's presence at the scene of the accident. Cline at ¶ 24. In addition, the court rejected a "but for" analysis, i.e., that the driver would not have been walking to dinner but for his employment. Id.

{¶ 19} The Supreme Court of Ohio has stressed that these decisions are very "fact specific."

Friebel , 142 Ohio St.3d 425, 2014-Ohio-4531, 32 N.E.3d 413, at ¶ 18, citing Fisher , 49 Ohio St.3d at 280, 551 N.E.2d 1271. In the case before us, when the trial court considered the facts, it concluded that Osten's situation had more in common with Cline than it did with Griffith . The evidence before the trial court included Osten's deposition, Osten's affidavit, and the union contract for PSA's flight attendants, which was effective between May 2012 and May 2017.

{¶ 20} In her deposition, Osten indicated that when she flew on trips covering multiple days, PSA assigned overnight lodging. Under PSA company policy, Osten was not permitted to stay elsewhere, and PSA paid for her hotel.

{¶ 21} Osten's normal hourly wage was $19.07, and PSA guaranteed a minimum of 72 hours per month at that wage. PSA also paid flight attendants an additional $1.60 per hour from the time they left their base city until they returned to base. This amount was paid during the entire trip, including the time when the plane was in the air, and was designed to help with the flight attendants' expenses, including food, while they traveled.

{¶ 22} In contrast, PSA began paying the $19.07 hourly wage only after the airplane doors shut in the air, and stopped paying this wage when an attendant was released from duty. At that point, flight attendants were considered to be on a "rest period." They were then paid only the $1.60 hourly amount until they returned to "duty time," which was contractually defined as "[a]ll time * * * that a Flight Attendant is on duty, commencing when the Flight Attendant reports for duty as directed by the Company, and ending fifteen (15) minutes (30 minutes for an international flight) after the Flight Attendant's release from duty." Section 2 J., p. 5 of the Flight Attendant Agreement between Association of Flight Attendants, CWA and PSA Airlines ("union contract"), attached as Ex. A to the Affidavit of Aysha Osten.

{¶ 23} Section 6 B.1. of the union contract required PSA to provide flight attendants with safe and adequate single occupancy accommodations on scheduled overnight trips. The contract also allowed the union to pick two acceptable hotels in each city from a list that PSA provided, and obligated PSA to make every effort to select union-approved hotels. Id. at Section 6 B.4. In addition, Section 6 C.1. of the contract stated that flight attendants could use a taxi service, at PSA's expense, from the airport to their lodging if PSA's pre-arranged transportation was not available within 30 minutes after the attendants were released from duty.

{¶ 24} At the time of her injury, Osten was assigned to a multi-day trip that was scheduled to last from January 26, 2016 to January 29, 2016. Osten's home base was Dayton, Ohio, and she reported to work at the Dayton airport at around 7:35 a.m. on January 26, 2016. After flying to several cities, Osten stayed overnight in Canton, Ohio. On January 27, 2016, she reported to work at the Canton-Akron airport at about 6:15 a.m., and again flew to several cities. Her last flight that day ended at LaGuardia Airport in New York City at about 12:30 p.m. Osten was scheduled to stay at a Hampton Inn near the airport.

{¶ 25} Normally, a hotel shuttle would pick the employees up from the airport. However, due to a recent snowstorm, the Hampton Inn shuttle was unable to pick up the PSA employees. Rather than obtain a taxi, Osten and other employees decided to walk to the Hampton Inn, which was within sight of the airport. They left the airport at 12:45 p.m. and arrived at the hotel at about 1:00 p.m.

{¶ 26} After arriving at the hotel, Osten took a nap. She and the two pilots had agreed to meet downstairs at about 5:30 p.m. to go to dinner. After meeting, they first tried the hotel next door to the Hampton Inn, but the restaurant in that hotel was closed. They then decided to go to Airway Pizza, which was the next-closest restaurant to the Hampton Inn. Airway Pizza was located about a mile away. There were restaurants located at the airport, but that would have required going through security.

{¶ 27} Section 6 B.5. of the union contract provided that "[i]f suitable restaurants are not available at or near the lodging facility or training site, the Company will authorize transportation to suitable restaurants and reimburse crews for reasonable expenses incurred for such transportation." Union contract, p. 19, attached as Ex. 2 to the Affidavit of Aysha Osten. However, rather than calling a taxi, Osten and the pilots decided to walk to Airway Pizza. They also did not check to see if the Hampton Inn's shuttle was working. They decided that if the hotel shuttle had struggled to pick them up at the airport, walking would be easier than waiting for another mode of transport to arrive. Aysha Osten Deposition, Doc. # 29, p. 40. Osten also said that "A lot of times we walk when it's normal weather just for the exercise." Id.

{¶ 28} The weather was clear, but because of the snowstorm, mounds of snow, slush, and ice were in the street. Walking on the sidewalk was difficult. Osten and the pilots returned to the hotel at about 8:00 p.m. Osten slipped on the ice and fell about 30 feet from the front door of the hotel. She fell on the public sidewalk, however, not on hotel property. As a result of the fall, Osten sustained contusions to her knees and wrists. After Osten got back to her room, she iced her right knee, which was swollen. She then reported the injury to her union representative and supervisor.

{¶ 29} On January 28, 2016, or the morning after the injury, Osten reported at around 4:00 a.m. for her next scheduled flight. She worked two shifts, as scheduled, returned to LaGuardia Airport at around 10:30 a.m. that day, and stayed again at the Hampton Inn. Osten then worked her final shift on January 29, 2016, and returned to her home base in Dayton, Ohio. On her way home from the Dayton Airport, Osten went to a workers' compensation doctor. Ultimately, Osten missed five weeks of work due to the injury. As was noted, BWC initially allowed Osten's workers' compensation claim, but that decision was vacated in April 2016.

{¶ 30} An evaluation of the totality of the circumstances indicates that the trial court did not err in concluding that Osten was on a personal errand at the time of her injury. It is true that Osten was a traveling employee. However, that does not preclude a finding that she was on a personal errand, rather than her employer's business, at the time of her injury.

{¶ 31} In both Griffith and Cline , the Tenth District Court of Appeals "refused to adopt the traveling-employee doctrine as a means to find injuries compensable where the injuries occurred during an employment-related trip, but while the employee was engaged in a purely personal mission or errand." Griffith , 10th Dist. Franklin No. 08AP-557, 2008-Ohio-6611, 2008 WL 5235168, at ¶ 13, citing Cline , 10th Dist. Franklin No. 07AP-498, 2007-Ohio-6782, 2007 WL 4395409, at ¶ 18. (Other citations omitted.) The court stressed in Griffith that its view was "in line with the view of several other Ohio appellate districts." Id. , citing Roop v. Centre Supermarkets, Inc. , 6th Dist. Lucas No. L-86-206, 1987 WL 10167 (Apr. 24, 1987), Marbury v. Indus. Comm. , 62 Ohio App.3d 786, 577 N.E.2d 672 (2d Dist.1989), and Elsass v. Commercial Carriers, Inc. , 73 Ohio App.3d 112, 596 N.E.2d 599 (3d Dist.1992).

{¶ 32} After making these observations, the court of appeals employed traditional methods of analysis, including the Lord criteria, to decide if the employee was "in the course" of his employment when injured, and whether the injury "arose out of" his employment. Griffith at ¶ 14-35. The differences between Griffith and Cline are purely factual, not legal.

{¶ 33} In Griffith , the employee in question was a police officer who had been sent to a training academy for two weeks. He was paid regular wages during training and was "strongly encouraged" to remain at the academy during the duration of the training course. Id. at ¶ 14. The court of appeals distinguished other cases, including Cline , which had found employees were on "personal errands," because the police officer "was not injured in transit between employment premises, lodging and/or remote locations for food or entertainment"; instead, his injury occurred where his training was held, where he had been provided room and board, and where he had been encouraged to remain. Id. at ¶ 19.

{¶ 34} The court also did not find the fact that the officer's injury occurred during his "free time" controlling, because Ohio courts had recognized "that recreational activity is not, by its very nature, outside the course of an employee's employment." Id. at ¶ 24, citing Kohlmayer v. Keller , 24 Ohio St.2d 10, 13, 263 N.E.2d 231 (1970) (swimming injury at employer-sponsored picnic was sustained during course of employment, as employer could reasonably expect swimming injury to take place at company picnic where swimming facilities are provided). (Other citation omitted.)

{¶ 35} When evaluating the "course of employment" prong, the court considered various matters, including that "the academy provided attendees with the use of its physical fitness facilities, a fact well-known to [the employer], and injury from the use of the provided facilities can reasonably be expected." Griffith , 10th Dist. Franklin No. 08AP-557, 2008-Ohio-6611, 2008 WL 5235168, at ¶ 26. The court also emphasized that "[the employer] strongly encouraged [the employee] to remain at the academy throughout the training period, including his free time, in line with the highway patrol's own recommendation that trainees stay at the academy. The training course included room and board at the academy, and [the employer] would not pay for [the employee] to stay or eat elsewhere." Id. at ¶ 25.

{¶ 36} After concluding that the first prong had been satisfied, the court of appeals discussed the second prong, i.e., whether the injury "arose out of" employment, and applied the three factors from Lord to decide if a causal connection existed. Id. at ¶ 27-35. The court found that the academy was the location of the employee's last employment, or if not, the scene was not "too far removed in time, space, and purpose from his last employment to find a causal connection between the injury and the employment." Id. at ¶ 30.

{¶ 37} Concerning the second Lord factor, the court acknowledged that the officer's employer did not have direct control over the academy's facilities. The court did not find this dispositive, stating that direct control over the physical scene is not "an ironclad prerequisite." Id. at ¶ 31. The court stressed that the employer did exercise some control, by authorizing the employee's attendance, by encouraging him to remain at the academy during his free time, and by refusing to reimburse the employee for costs if he left "the facility for alternative meals, lodging or entertainment." Id.

{¶ 38} Regarding the third Lord factor, the court concluded in Griffith that the employer benefitted in various ways by having the employee stay at the facility, including saving the cost of alternate room and board, as well as aiding in the employee's successful completion of training. Griffith , 10th Dist. Franklin No. 08AP-557, 2008-Ohio-6611, 2008 WL 5235168, at ¶ 34. The court also stressed that encouraging the employee to remain on the premises limited the employee to the available activities and facilities. In addition, the court focused on the employer's reasonable anticipation: (1) that the employee would use the academy's physical facilities in light of the employer's own physical fitness requirements; and (2) that injury could result from use of the facilities. Id. The court, thus, held that the third Lord factor weighed in favor of coverage. Id.

{¶ 39} The case before us does not involve the same considerations. While Osten was paid a minimal hourly amount to assist in travel expenses, she was not paid her normal hourly wage during rest periods. Furthermore, unlike the employer in Griffith , PSA did not refuse to pay for meals off the premises. In fact, PSA allowed employees to choose where they wished to eat, and even provided for reimbursement for transportation expenses if suitable restaurants were not located nearby. Notably, Osten declined any transportation options.

{¶ 40} In arguing that this case is similar to Griffith , Osten focuses on the fact that the union contract specifically mentioned nourishment as a vital part of flight crew requirements on layovers, and that PSA, therefore, could reasonably anticipate that employees would walk to dining establishments. We disagree with this interpretation of the contract. The emphasis on "meal breaks" in the contract refers to "the need to address the Flight Attendants' nutritional requirements during duty periods ." (Emphasis added.) Union contract, Section 7 L.1., p. 37, attached as Ex. 2 to Osten's Affidavit. As was noted, a duty period is contractually defined as a period when the flight attendant is on duty, which ends 15 minutes after release from duty.

Id. at Section 2 J., p. 5. At the time of the injury, Osten was not on "duty." She had been released from duty, and was on a "rest period." Id. at Section 7 C.7., p. 25. This "rest period" lasted 15 and a half hours, from 12:30 p.m. on January 27, 2016, to 4:00 a.m. on January 28, 2016.

{¶ 41} Section 7 L.2. further provides, with respect to "meal breaks," that:

Flight Attendants may carry portable coolers and food bags containing their own food. Flight Attendants will use coolers which are in accordance with Company guidelines. Flight Attendants may eat on the aircraft while passengers are onboard. However, Flight Attendants are expected to do so discreetly and out of the direct view of the passengers.

(Emphasis sic.) Union contract, Ex. 2, at p. 37.

{¶ 42} Clearly, these provisions addressed times when flight attendants were on duty on the airplane, not when they were off duty during layovers. Consequently, PSA did not receive any particular benefit from the fact that employees traveled to restaurants during off duty hours.

{¶ 43} Osten's reply brief again attempts to distinguish Cline because of the union contract. Among other things, Osten argues that PSA selected the hotel for flight attendants and limited Osten's discretion on where she could eat. To the contrary, the union selected two hotels in every city from lists provided by PSA, and PSA was obligated to make every effort to use union-selected hotels. As a result, the union exercised substantially more control than PSA did over the choice of the hotel. PSA also did not limit Osten's choice of restaurants. In fact, PSA agreed to reimburse employees for transportation costs if suitable restaurants were not located nearby.

{¶ 44} Osten additionally contends that she was forced to walk to a restaurant, but this is incorrect. The undisputed testimony indicates that Osten and her fellow employees did not even attempt to see if the hotel shuttle or any other transportation was available. Instead, they chose to walk; in fact, Osten stated that she and others often decided to walk, in order to get exercise. Even if the employees had chosen to take a shuttle or cab, this would not mean that PSA was responsible for purposes of workers' compensation eligibility. PSA simply reimbursed employees for expenses and had no control over the transportation, any more than it did over the public sidewalk where Osten fell.

{¶ 45} Finally, Osten argues that PSA received benefit from her errand to obtain food because flight attendants routinely work extended periods while eating or eating little, and work odd hours. Osten suggests that PSA is benefitted by having employees report to work who are not hungry, irritable, and weak. There is nothing to distinguish this from a situation in which any employee leaves an employer's premises to eat.

{¶ 46} In Jobe v. Conrad , 2d Dist. Montgomery No. 18459, 2001 WL 62516 (Jan. 26, 2001), we affirmed the denial of a workers' compensation claim of an employee who slipped and fell while leaving her place of employment to take a paid lunch break at a nearby restaurant. We noted three exceptions that could apply to injuries sustained during off-premises lunch breaks-"the 'zone of employment' exception; the 'special hazard' exception; and, the 'totality of the circumstances' exception." Id. at *2, citing Robatin , 61 Ohio St.3d 66, 572 N.E.2d 661.

{¶ 47} While these principles (other than a weighing of the totality of circumstances), do not apply to the case before us, our discussion of the issue of control is of interest. Specifically, we noted that none of the possible exceptions potentially allowed coverage because, even though the slip occurred not far from the entrance of the employer's store, the employer had no control over the scene of the accident. Id. at *4-5. Among these possible exceptions was a causal connection established by the "totality of circumstances," using the analysis set forth in Fisher and Lord. Id. at *4.

{¶ 48} We also discussed the "special hazard" situation, which uses a "but for" analysis. This is what Osten seems to suggest by implying that if she had not been employed as a flight attendant, she would not have been present at the location and would not have needed to obtain food. In the "special hazard" situation, the test is whether "(1) 'but for' the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than the risk common to the public." Id. at *4, citing Robatin .

{¶ 49} We acknowledged that "but for" the employment, the employee would not have been present at the location where she fell. Jobe at *4. However, we held that the claim failed under the second requirement, because the risk to the employee was "no greater than the risk to the general public." Id. We stressed that "[i]t is plain that a person shopping at the mall had as much risk of slipping on the wet floor as did [the employee]." Id.

{¶ 50} The point is that the mere fact of traveling does not create a special situation allowing these employees to be treated differently than others for purposes of workers' compensation. See, e.g. , Woodard v. Cassens Transport Co. , 3d Dist. Union No. 14-11-22, 2012-Ohio-4015, 2012 WL 3801327, ¶ 20 (emphasizing that traveling employees do not " 'have a special status for the purpose of coverage under the Ohio Workers' Compensation Law' "); Griffith , 10th Dist. Franklin No. 08AP-557, 2008-Ohio-6611, 2008 WL 5235168, at ¶ 13 (making the same observation). Instead entitlement is governed by the standards in Fisher . Id.

{¶ 51} Even if one assumes that traveling employees are "in the course of" their employment during travel, they are not entitled to coverage unless the injury also arises out of their employment. As has been indicated in various cases, personal errands do not meet this standard. Cline , 10th Dist. Franklin No. 07AP-498, 2007-Ohio-6782, 2007 WL 4395409, at ¶ 18 ; Friebel , 142 Ohio St.3d 425, 2014-Ohio-4531, 32 N.E.3d 413, at ¶ 15.

{¶ 52} Again, after evaluating the undisputed facts, we agree with the trial court's analysis. Accordingly, Osten's sole assignment of error is overruled.

III. Conclusion

{¶ 53} Osten's sole assignment of error having been overruled, the judgment of the trial court is affirmed.

DONOVAN, J. and FROELICH, J., concur.

      As PSA points out in its brief, the court's statement in Griffith about whether direct control is a prerequisite should be taken in the context that the injury occurred on the premises where the employee was staying, rather than off premises. In fact, the court noted in Griffith that the case it was citing had said that "ownership and control are not paramount to injuries sustained on the employment premises." Griffith , 10th Dist. Franklin No. 08AP-557, 2008-Ohio-6611, 2008 WL 5235168, at ¶ 31, citing Faber v. R.J. Frazier Co. , 72 Ohio App.3d 9, 15, 593 N.E.2d 410 (11th Dist.1991).
      Previously, in Cline , the Tenth District Court of Appeals stated that: "With respect to the second [Lord ] factor, the trial court found that appellee had no control over the scene of the accident because appellee did not control the public street. We agree and note that this view finds support in case law. See, e.g. , MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 572 N.E.2d 661 ; Lord , [66 Ohio St.2d 441, 423 N.E.2d 96,] supra ; Beharry v. Cleveland Clinic Found. (Nov. 22, 1995), Cuyahoga App. No. 68050 [1995 WL 693103]. Moreover, appellee exercised no control over the third party who was driving the vehicle that struck appellant. Appellant argues that, while appellee did not control the roadway, it did control appellant, who was following a work rule when he decided to cross the street by foot. But the second Lord factor is concerned with the degree of control over the scene, not the employee, so appellant's argument in this regard is inapposite." Cline , 10th Dist. Franklin No. 07AP-498, 2007-Ohio-6782, 2007 WL 4395409, at ¶ 23. See also Fisher , 49 Ohio St.3d at 279, 551 N.E.2d 1271 (noting that "[t]he proper scrutiny entails the amount of control the employer had over the situs of the injury, and not the degree of control the employer had regarding the actions of its employees"). Notably, PSA had no control over the public sidewalk.