Bussey v. Ltv Steel Co.

*575 Edwin T. Hofstetter, Judge. LTV Steel Company, Inc., formerly known as Jones & Laughlin Steel, Inc., appellant, is appealing the judgment of the trial court which allows Betty Bussey, appellee, to participate in the Workers’ Compensation Fund. Appellant contends the court should have granted a directed verdict at the close of all the evidence. Because we agree, we are reversing the judgment of the trial court and entering judgment for appellant. The parties stipulated to the following facts: “That there was, in fact, an accident that occurred on September 11, 1983, which was a Sunday, at about 2:00 o’clock p.m. between a car driven by Betty Bussey, and a truck driven by a Joseph Donato, employed by Research Wilmont Oil Company, and at that time, Mr. Donato was making a delivery to the Jones & Laughlin [now LTV] plant. “The accident happened when Mr. Donato turned into or onto the roadway leading up to the J & L gate, which gate was approximately six-tenths of a mile from the point of the accident.” In addition to these stipulated facts, there was testimony that the road leading up to the LTV gate was a public road. Appellee was on her way home from work and was stopped at the Jennings Road—1-71 intersection where she intended to turn left when she was hit by a delivery truck turning onto the LTV access road. At the close of the evidence the trial court denied appellant’s motion for a directed verdict based on Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570. The jury returned a verdict for appellee, the court overruled appellant’s motion(s) for judgment notwithstanding the verdict and/or new trial, and appellant timely appealed. I Appellant’s first assigned error is that: “The trial court erred to the prejudice of the defendant-appellant in overruling its motion for a directed verdict.” A trial court may grant a motion for a directed verdict only when, “after construing the evidence most strongly in favor of the party against whom the motion is directed, [the court] finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party * * *.” Civ.R. 50(A)(4); see Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469. In making this determination, the court is not *576 to weigh the evidence or judge credibility but is “to determine whether there exists any evidence of substantial probative value in support of that party’s claim.” Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 69, 23 O.O.3d 115, 116-117, 430 N.E.2d 935, 938. In Littlefield the Supreme Court of Ohio held that: “1. An employee will be entitled to workers’ compensation benefits when the employment creates a special hazard and the injuries are sustained because of that hazard. “2. The special hazard rule applies where: (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.” 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570, paragraphs one and two of the syllabus. Thus, the issues to be decided in this case were whether “but for” appellee’s employment at LTV, appellee would not have been at the intersection of Jennings Road and 1-71 where her injury occurred and whether the risk to appellee was distinctive in nature or quantitatively greater than the risk common to the public? A directed verdict should have been granted for appellant because appellee never established that turning left at the Jennings 1-71 intersection was the necessary, most direct or safest route to her home. Unlike the claimant in Littlefield, appellee had options. Consequently, appellee failed to meet the first criterion of the special hazard rule. To construe the evidence otherwise would extend the “but for” philosophy to appellee’s arrival at home, an untenable result. Accordingly, this assignment of error is sustained. II Appellant’s second assigned error is that: “The verdict is against the manifest weight of the evidence.” Assuming, arguendo, that pursuant to Civ.R. 50(A)(4) the trial court, as here, chose not to direct a verdict in its belief it was following the “special hazard” rule promulgated in Littlefield v. Pillsbury, supra, the jury verdict and judgment of the court are, nevertheless, as appellant claims, against the manifest weight of the evidence. The distinctions of the facts between the Littlefield case and the case sub judice are numerous, some of which were discussed earlier. In Littlefield, there was no other choice of ingress and egress at the plant entrance where the accident occurred according to the stipulation of the parties. Here, *577 however, at a point more than a half mile away from the plant entrance, on a public highway, the employee Bussey had the option of turning either left or right from the Jennings Road intersection with 1-71. Her position on Jennings Road in preparation for the turn was dependent on the exercise of her own choice. It was her location at the intersection, in anticipation of turning left, that placed her vehicle more nearly in the line of travel of the truck making the turn than would have occurred had she turned right. When a choice of directions exists when leaving a place of employment on a public highway that is six-tenths of a mile away from the plant entrance or exit, the “special hazard” requirement of no choice, as promulgated in Littlefield has been vitiated. To hold otherwise would require the employer to grant safe passage from work to home whenever it is evident the employee would not have been at a particular location en route “but for” her employment. The “but for” analysis, in our opinion, has to demonstrate that the intersection where the accident occurred constitutes a special hazard that does not inure to the detriment of the public at large at this or comparable intersections. Although the evidence indicated other accidents were reported over the years near this intersection, there was no indication this intersection was more dangerous than comparable intersections simply because it was a means of egress from Jennings Road which led away from the LTV plant six-tenths of a mile away. Legal precedence requires an intermediate court of appeals to conform with the law enunciated by the Supreme Court when the facts are reasonably comparable to, and fall within, the factual parameters of the new course set by that court, as in Littlefield, supra, by a vote of four to three. When the bounds of the new course are exceeded, as here, by a fact situation which, unless distinguished, suggests the “special hazard” rule exists until the employee’s return home has been safely accomplished because of the “but for” theory, this clearly exceeds the intent and purpose of Littlefield, in our opinion, as set forth by the slim majority therein. It is our function and duty as an intermediate appellate court to contain our thinking within the limits of Littlefield and not to expand on the Littlefield philosophy and its change of course. When the fact situation in a succeeding case exceeds the factual boundaries that gave rise to the decision in Littlefield, especially in light of the vigorous triple dissents therein, our judicial thinking must be constrained by the fact situation before us. As the facts herein are distinguishable and substantially exceed the facts giving rise to the rationale of Littlefield, we find the verdict *578 is against the manifest weight of the evidence under the limitations of existing Ohio law. This assignment of error is well taken. Ill Appellant’s last assigned error is that: “The trial court erred to the prejudice of the defendant-appellant in overruling its objections to improper arguments by plaintiff-appellee’s counsel to the jury.” Three of counsel’s arguments are contended to be prejudicial. In the first, appellee’s counsel told the jury that appellant’s counsel was going to try to scare them and to cry wolf. The court overruled appellant’s objection. While these sorts of comments regarding opposing counsel’s interpretation of the law will not be condoned, the comments were not prejudicial. In the second, appellee’s counsel argued that everyone was working on Sunday and that they were working because LTV was open and making money. The court overruled counsel’s objection. While these comments were clearly error, see, e.g., Groves v. Phillips Petroleum Co. (1969), 22 Ohio App.2d 25, 33, 51 O.O.2d 20, 25, 257 N.E.2d 759, 765, again, when read in context with the whole argument, we cannot conclude they were prejudicial. Finally, appellee’s counsel argued that appellee took quite a chance pursuing this claim because she is still employed by LTV. He stated that appellee was obviously a good employee or she would have been fired. The court sustained appellant’s objection, admonished counsel and instructed the jury to disregard counsel’s statement. Appellant now complains that the court’s instruction to the jury was incomplete and left the jury with the implication that LTV could retaliate against appellee for pursuing this lawsuit. However, counsel did not advise the court of this concern at the time and did not request a supplemental instruction. The trial court’s actions were sufficient to guard against prejudicial error. For all of the above reasons, this assignment of error is overruled. The judgment of the trial court is reversed and judgment is hereby entered for appellant. Judgment reversed. Krupansky, P.J., concurs. Dyke, J., dissents. *579 Edwin T. Hofstetter, J., retired, of the Eleventh Appellate District, sitting by assignment.