Wesolowski v. Toledo Refining Co., L.L.C.

[Cite as Wesolowski v. Toledo Refining Co., L.L.C., 2024-Ohio-1439.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Patricia Wesolowski Court of Appeals No. L-23-1190

Appellant Trial Court No. CI0202202017 v. Toledo Refining Company, LLC DECISION AND JUDGMENT

Appellee Decided: April 12, 2024

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Thomas J. Schaffer, for appellant.

Kimberly S. Kondalski and Mark A. Shaw, for appellee.

***** OSOWIK, J.

{¶ 1} Plaintiff-appellant appeals from a judgment of the Lucas County Common Pleas Court granting summary judgment in favor of appellants, Toledo Refining Company, LLC, et al. The appellant raises a single assignment of error for our review:

“The trial court erred in granting Defendant’s Motion for Summary Judgement by

failing to consider the hearsay exception of excited utterance under Evidence Rule

803(2).”

FACTS AND PROCEDURAL HISTORY

{ ¶ 2 } The undisputed facts are as follows. Patricia Wesolowski is the

plaintiff-appellant and widow of the deceased employee James Wesolowski. On or

about October 11, 2016, James Wesolowski died.

{ ¶ 3 } Appellant filed an application for death benefits with the Bureau of

Workers' Compensation ("BWC") which was assigned claim No. 16-107316. The BWC

issued an order dated March 22, 2017, which denied the requested benefits having

determined there was "no indication in the medical documentation on file at the BWC,

that relates this fall to a work-related incident/accident" and the "death certificate, on file

with the BWC, states that the injury did not occur at work."

{¶ 4} Appellant appealed the BWC's order, following which a District Hearing

Officer mailed an order on October 5, 2019, disallowing the claim.

{¶ 5} Appellant appealed the District Hearing Officer's decision, following which

a Staff Hearing Officer mailed an order on February 13, 2020, which also

disallowed the claim.

{ ¶ 6 } Appellant appealed the Staff Hearing Officer's decision, and the Industrial

Commission of Ohio ("IC") mailed an order on March 3, 2020, which refused the appeal.

{¶ 7} On May 5, 2020, the appellant filed an appeal with the Lucas County

Court of Common Pleas. The appeal was assigned case number G-480 I-CI-

0202002091. Appellant filed a Notice of Voluntary Dismissal Pursuant to Rule 41

(A)(l )(a) on April 9, 2021, reserving the right to refile this matter within a year. 2.

{¶ 8} The matter was refiled April 8, 2022. Appellee Toledo Refining

Company, LLC (TRC) filed a motion for summary judgment and appellant responded.

{¶ 9} The trial court granted the appellee’s motion for summary judgment.

ANALYSIS

{¶ 10} At the outset, we note appellant frames the issue for this court to review

as “whether the hearsay exception Ohio Evid. R. 803(2), “excited utterance,” applies to

Mr. Wesolowski’s statements to Plaintiff regarding the surrounding circumstances of

his workplace injury.”

{¶ 11} However, appellant did not present any arguments to the trial court to show

that the James Wesolowski statement met the criteria of this exception under Evid.R.

803(2). Rather, her argument to the trial court was confined to the present sense

impression hearsay exception under Evid.R. 803(1).

{¶ 12} Despite the fact that appellate courts review summary judgment decisions

de novo, the parties are not given a second chance to raise arguments that they should

have raised below. The Evid.R. 803(2) excited utterance exception argument is being

raised for the first time on appeal. We, therefore, will not consider this argument. Hanley

v. DaimlerChrysler Corp., 158 Ohio App. 3d 261, 2004-Ohio-4279, 814 N.E.2d 1245, ¶

23, citing Aubin v. Metzger, 3d Dist. No. 1–03–08, 2003-Ohio-5130, ¶ 10.

{¶ 13} As we stated, an appellate court reviews a trial court's summary judgment

decision de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Summary judgment will be granted when no genuine issues of material fact exist 3.

when after, construing all the evidence in favor of the nonmoving party, reasonable

minds can only conclude that the moving party is entitled to judgment as a matter of law.

Civ.R. 56(C). Accord, Lopez v. Home Depot, USA, Inc., 6th Dist. Lucas No. L-02-1248,

2003-Ohio-2132, ¶ 7. When a properly supported motion for summary judgment is made,

an adverse party may not rest on mere allegations or denials in the pleading, but must

respond with specific facts showing there is a genuine issue of material fact. Civ.R.

56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984).

{¶ 14} A de novo review requires an independent review of the trial court's

decision without any deference to the trial court's determination. Grafton at 105. A trial

court shall grant summary judgment only where: (1) no genuine issue of material fact

remains to be litigated; (2) the moving party is entitled to judgment as a matter of law;

and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable

minds can come to but one conclusion and that conclusion is adverse to the nonmoving

party. Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66,

375 N.E.2d 46 (1978). Nationstar Mortg. LLC v. Cody, 6th Dist. OT-18-041, 2020-Ohio-

5553, ¶13-14

{¶ 15} In this case, appellant filed a claim for workers’ compensation death

benefits arising from the death of her husband, James Wesolowski.

{¶ 16} This claim was filed pursuant to R.C. 4123.59. In order to receive

benefits under that statute, a claimant must show (1) dependency on (2) an employee of

the defendant-employer (3) whose death was the result of a work-related disease or-4.

injury

{¶ 17} Without a finding of each of these elements, appellant would be unable to

participate in the workers’ compensation fund and hence, not be able to prevail on

appeal. Sellers v. Connor, 8th Dist. Cuyahoga No. 48027, 1984 WL 6339, *3–4 (Dec. 6,

1984).

{¶ 18} It is undisputed that appellant herein, Patricia Wesolowski, was a

dependent of James Wesolowski and James Wesolowski was an employee of the

appellee at the time of his death.

{¶ 19} The only issue in dispute is whether James Wesolowski died as a result of

a work-related disease or injury.

{¶ 20} Appellant claims that on August 6, 2016, her husband fell coming down

some steps at the refinery where he worked for over forty years and that he died as a

result of the injuries that he received in that fall. However, appellees argue that

appellant has failed to meet her burden of proof that James Wesolowski sustained a

work-related injury.

{¶ 21} In support of its argument, TRC submitted the affidavit of Deithra Glaze,

the Human Resource Manager with Toledo Refining Company, LLC. Her sworn

statement establishes that James Wesolowski did not inform TRC that he sustained a

work-related injury on August 6, 2016. She further attests that the first time there was

any notice or allegation of such an incident occurred by way of a telephone call on or

about October 19, 2016, about a week after his death. On that date, Ms. Glaze spoke 5.

with Ross Wesolowski, son of James Wesolowski. Thereafter, she commenced an

investigation concerning the allegations.

{¶ 22} The investigation revealed that no TRC employees witnessed James

Wesolowski falling and sustaining an injury on August 6, 2016, and that there was no

video evidence of such a fall. The records of TRC further show that James reported for

work the next day and worked his next scheduled shift and never reported to TRC any

fall at work that would have occurred on August 6, 2016.

{¶ 23} At her deposition, appellant testified that she called TRC on August 7,

2016, to report that James would not be reporting for his August 8, 2016 dayshift

because “he fell at home last night and is at ER getting his back checked out.” This was

confirmed by a TRC Employee Absentee Report.

{¶ 24} Appellant further testified that she completed the required documents

under the Family Medical Leave Act and supplied the information as her husband

instructed her to do so. On that form, the handwritten “Reason for Leaving” states:

“James fell at home coming downsteps (2 steps) and inj. his neck and back”

{¶ 25} Appellant also testified that she indicated to the hospice staff that James

fell at home and confirmed her description of the incident to the hospice staff as

reflected in its records. Those records state “Patient was at home and fell down 3 steps

onto is right side sometime during the night. His wife reports he then went back to bed

but woke up with severe upper back and lower lumbar spine as well as right hand

tingling.” 6.

{¶ 26} All of this evidence was presented in support of TRC’s motion for

summary judgment on the issue of whether James Wesolowski sustained a work-related

injury.

{¶ 27} In her response to the appellees’ motion for summary judgment, appellant

argued that the issue of whether her husband sustained a work-related injury was still in

dispute. Specifically, she cited to her own deposition wherein she maintained that her

husband came home from work on August 6, 2016 and stated to her “oh boy… I really

did it this time. I fell…coming down some steps at work and fell, fell off the step… I

got my back bad.” Appellant argued that these statements of her husband are

admissible evidence and sufficient to create an issue of fact yet to be determined.

Appellee objected. TRC argued that the statements of James Wesolowksi to his spouse

were hearsay, not subject to any exception.

{¶ 28} In her memorandum in opposition to the motion for summary judgment,

appellant argued to the trial court that the statements were admissible, pursuant to the

authority of Taylor v. Indus. Comm. 13 Ohio App. 262 (1920) and Evid.R. 803(1).

{¶ 29} The facts in Taylor established that the claimant stepped out of the

company's shop on to the company's property to smoke. In going out he passed down

some concrete steps leading from the shop. In a very brief period of time, approximately

two minutes, he returned, holding his back and seemingly in pain, and immediately stated

to other workmen, as testified to by them, that in going out he had fallen on the concrete

steps and injured his spine. Id. 263–64. 7.

{¶ 30} We note that the holding in Taylor was pronounced 60 years prior to the

adoption of the Ohio Rules of Evidence in 1980. Nevertheless, in Taylor, the court held:

The general rule is that evidence of the statement by the party injured declaring the circumstances of the injury, made a considerable time after the happening, is hearsay and inadmissible, but where the statement is made immediately after the injury, in the presence of the person testifying, who asserts the circumstances as observed by him, this evidence constitutes an exception to the hearsay rule and is admissible. (3 Wigmore on Evidence, Section 1746.) Id. at 264. The court further held:

Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. Id. at 265.

{¶ 31} Appellant also argued that James Wesolowski’s statement would be

admissible as a present sense impression exception to hearsay under Evid. R. 803(1).

That rule defines the present sense impression as a statement describing or explaining an

event or condition made while the declarant was perceiving the event or condition, or

immediately thereafter unless circumstances indicate lack of trustworthiness. Evid.R.

803(1).

{¶ 32} The key to the statement's trustworthiness is the spontaneity of the

statement; it must be either contemporaneous with the event or be made immediately

thereafter. State v. McLoyd, 8th Dist. Cuyahoga No. 112092, 2023-Ohio-4306 ¶ 53, 8.

quoting State v. Essa, 194 Ohio App.3d 208, 2011-Ohio-2513, 955 N.E.2d 429, ¶ 126

(8th Dist.).

{¶ 33} The trial court found that the statements of James Wesolowski were not

present sense impressions because the circumstances surrounding the statements indicate

a lack of trustworthiness and were not spontaneous and made contemporaneously with

the fall or immediately thereafter.

{¶ 34} The staff notes to Evid.R. 803(1) state:

“Present sense impressions are those declarations made by an observer at the time the event is being perceived. The circumstantial guaranty of trustworthiness is derived from the fact that the statement is contemporaneous and there is little risk of faulty recollection, and it is made to another who is capable of verifying the statement at the time it is made. * * * “One of the principle elements of the circumstantial guaranty of trustworthiness of this exception is that the statement was made at a time and under circumstances in which the person to whom the statement was made would be in a position to verify the statement.”

{¶ 35} In the instant case it is undisputed that the statement attributed to James

Wesolowski was not made while he was perceiving the fall or immediately thereafter.

The statement was not made until James had returned home, which according to the

record, would have taken at least 17 minutes to drive.

{¶ 36} Further, the statement was made to an individual (appellant herein, his

wife) who was not capable of verifying the statement at the time it was made since she

was not present at the place of employment when the event was supposed to have

occurred. This fact weighs heavily on the lack of trustworthiness of the statement. 9.

{¶ 37} One of the guarantees of trustworthiness upon which the present sense

impression exception is based is verification. For example, the following statement

appears in the second edition of McCormick:

The statement will usually have been made to a third party [the person who subsequently testifies to it] who, being present at the time and scene of the observation, will usually have an opportunity to observe the situation himself and thus provide a check on the accuracy of the declarant's statement (McCormick, Evidence § 298, at 710 (2d ed. 1972)).

{¶ 38} We have noted that if the witness (the third party) heard the statement but

did not perceive the event, this safeguard is not present. The ‘lack of trustworthiness'

clause was intended to protect against this possibility. State v. Williams, 6th Dist. No. L-

90-175, 1991 WL 156545, *12 (Aug. 16, 1991).

{¶ 39} We turn to the propriety of granting summary judgment. A court may

render summary judgment only if the evidence, construed most strongly in the non-

moving party's favor, shows that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). When ruling

on a motion for summary judgment, a trial court generally may consider only evidence

that would be admissible at trial. Lowe v. Cox Paving, Inc., 190 Ohio App.3d 154, 2010-

Ohio-3816, 941 N.E.2d 88, ¶ 27 (12th Dist.), citing Tokles & Son, Inc. v. Midwestern

Indemn. Co., 65 Ohio St.3d 621, 631, fn. 4, 605 N.E.2d 936 (1992).

{¶ 40} The statement attributed to appellant's spouse is clearly hearsay. Evid.R. 801( C).

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{¶ 41} Based upon this lack of admissible evidence, we cannot consider

appellant's version of the events. As a result, no dispute exists regarding the origins of the

injuries sustained by James Wesolowski as we must accept the appellees' version of

events in that this was not a work-related injury, which is supported by the affidavits and

deposition testimony.

{¶ 42} Accordingly, appellant cannot recover under the Workers' Compensation

Act. Appellant's sole assignment of error is overruled.

{¶ 43} The judgment of the Lucas County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, court costs are assessed to appellant.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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