Hart v. NCO Financial Systems, Inc.

Filing 20

OPINION AND ORDER: Accordingly, plaintiffs motion for partial summary judgment doc. 13 is DENIED. Defendants motion for summary judgment doc. 11 is GRANTED as to plaintiffs claims for negligence and negligent infliction of emotional distress, and DENIED as to plaintiffs claim for intentional infliction of emotional distress. Signed by Judge James L Graham on 7/26/13. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jamie Hart,
v.

Case No. 2:12-cv-733

Plaintiff,

Judge Graham

NCO Financial Systems, Inc.,

Magistrate Judge Deavers

Defendant.
Opinion and Order
Plaintiff Jamie Hart brings this negligence and intentional tort action against his employer,
NCO Financial Systems, Inc., to recover for physical injuries he sustained when he was shot by his
ex-fiancée outside of NCO’s building as he was arriving for work. Hart’s ex-fiancée, Melissa
Stredney, was not an employee of NCO. Hart alleges that NCO negligently failed to provide a safe
work environment for him.
This matter is before the court on cross-motions for summary judgment regarding Hart’s
negligence claims. The issue raised is whether Ohio law grants immunity from liability to NCO
because the Ohio workers’ compensation system is Hart’s exclusive remedy as to his employer. For
the reasons set forth below, the court finds that NCO is immune from liability for the negligence
claims.
I.

Background
Hart began working for NCO on July 6, 2010 as a “rehab representative” who helped

individuals in default of their federal student loans. Hart Dep. at 9-11. Hart worked at NCO’s
office building located at 5626 Frantz Rd., Dublin, Ohio. According to NCO’s general manager of
operations, NCO leased the office building and parking lot. Symsick Aff. at ¶ 2. NCO was the sole
tenant of the building, and the parking lot was private and only for the use of employees and NCO
visitors. Id. at ¶¶ 3-4.
The complaint alleges that Hart was engaged to Stredney at the time he started working for
NCO but he soon afterwards broke off the engagement. Compl. at ¶ 7. In September 2010
Stredney entered Hart’s work area at NCO and physically assaulted him. Hart Aff. at ¶ 5. Stredney
was escorted out of the building by an NCO employee. Compl. at ¶ 9. In the following weeks and
1

months, Stredney made threats of physical harm to Hart by text messages and stalked Hart (without
physical confrontation) on numerous occasions in NCO’s parking lot. Hart Aff. at ¶¶ 7-8; Compl.
at ¶¶ 12-17. Stredney threatened harm to Hart and to anyone else who got in her way. Compl. ¶ 14.
Hart informed his supervisors of these incidents and threats. Hart Aff. at ¶ 8; Compl. at ¶¶ 12-17.
NCO told Hart to notify the police but took no further action. Hart Aff. at ¶ 8; Compl. at ¶¶ 1217.
The complaint alleges that on December 9, 2010, Stredney was observed by several NCO
employees sitting in her car in the NCO parking lot. Compl. at ¶¶ 19-20. After Stredney left the
premises, an NCO supervisor instructed Hart to file a police report. Id. at ¶ 21. There is no
indication from the complaint or the evidence of record whether or not Hart notified the police
regarding the December 9 incident or any past incidents or threats.
On the morning of December 14, 2010, Hart arrived at NCO in his car at about 7:50 a.m.
Hart Dep. at 12-13. He was scheduled to start work at 8:00 a.m. Id. at 12. Other employees were
arriving for work at this same time. Id. at 13. Because Hart had been designated as an employee of
the month, he parked in a spot reserved for such employees near the entrance to the building. Id. at
15. He left his car with the intention of walking to the building to start work. Id. As Hart began
walking toward the building, Stredney (who had allegedly parked her car in a handicap parking spot
and waited for Hart to arrive, Compl. at ¶ 23), confronted Hart. She pulled out a handgun and told
Hart to get into her car. Hart Dep. at 16. Hart calmly responded, “You don’t want to do this.” Id.
Stredney repeated her demand for Hart to get into her car and then shot him in the face. Id. at 17.
Hart lost one of his eyes and has undergone numerous surgeries that have cost Hart in excess of
$750,000. Compl. at ¶¶ 26-27.
The court takes judicial notice that in June 2011 Stredney pleaded guilty in state court to
charges of felonious assault with a firearm and of tampering with evidence. See State v. Stredney,
No. 10-CR-7457 (Ohio Ct. C.P.). Stredney is currently serving a sentence of fifteen years of
incarceration.
On March 14, 2012, NCO filed a claim with the Ohio Bureau of Workers’ Compensation
for workers’ compensation benefits in relation to Hart. See Doc. 13, Ex. A-1. That claim was
disallowed by a March 22, 2012 order on the grounds that the “employee did not sustain an injury in
the course of and arising out of employment.” Id. There is no indication that the BWC’s ruling was
appealed.

2

Hart filed this suit in the Court of Common Pleas for Franklin County in July 2012. NCO
removed the suit to this court on the grounds of diversity jurisdiction – Hart is a Columbus, Ohio
resident and NCO is a Pennsylvania corporation. The complaint asserts a claim for negligence and
alleges that Hart was a business invitee of NCO and that NCO breached its duty to protect Hart
from the foreseeable risk of harm that Stredney posed to him. Hart further asserts claims against
NCO for intentional and negligent infliction of emotional distress.
II.

Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary

materials in the record show that there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586
F.3d 459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of
genuine issues of material fact and its entitlement to judgment as a matter of law, which may be
accomplished by demonstrating that the nonmoving party lacks evidence to support an essential
element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).
The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those
‘that might affect the outcome of the suit under the governing law,’ will preclude summary
judgment.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson,
477 U.S. at 248). Accordingly, the nonmoving party must present “significant probative evidence”
to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore
v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379
(6th Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine
whether “the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be
viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.
3

451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d
543, 549 (6th Cir. 2009).
III.

Discussion
Both parties have moved for summary judgment on the issue of whether Hart’s sole

recourse for NCO’s alleged negligence is through the Ohio workers’ compensation system, in which
employers are required to participate. O.R.C. § 4123.35. For employers who comply with § 4123.35
(regarding payment of semiannual premiums into the state insurance fund), Ohio law grants
immunity from liability “in damages at common law or by statute for any injury, or occupational
disease, or bodily condition received or contracted by any employee in the course of or arising out
of his employment.” O.R.C. § 4123.74. The “in the course of employment” prong refers “to the
time, place, and circumstances of the injury” and whether the injury is sustained by an employee
while performing an activity or duty promoting his employer’s business. Saunders v. Holzer Hosp.
Found., 176 Ohio App.3d 275, 283-84, 891 N.E.2d 1202, 1209 (Ohio Ct. App. 2008). The “arising
out of employment” prong refers to the causal relationship between the injury and the injured
person’s employment. Id.
A.

An “Injury”

As an initial matter, Hart argues that he has not suffered an injury within the meaning of the
workers’ compensation statute. An “injury” is defined as “any injury, whether caused by external
accidental means or accidental in character and result,” that is received in the course of employment
or arises out of employment. O.R.C. § 4123.01(C). Hart argues that the statute’s use of the word
“accidental” limits the definition to only those injuries caused by an accident, and, as such, the
physical harm caused to Hart by the deliberate conduct of Stredney does not constitute an injury. 1
The court must reject the argument that Hart has not suffered an injury within the meaning
of the statute. The statute expressly applies to “any injury,” with enumerated exceptions not relevant
here. O.R.C. § 4123.01(C) (emphasis added); O.R.C. § 4123.01(C)(1)-(4) (creating limited exceptions
for psychiatric conditions, natural deterioration, pre-existing conditions). The “accidental” language
makes clear that injuries caused by accidents fall within the statute’s definition, but it does not
NCO does not challenge Hart’s characterization of Stredney’s intent in firing the gun. Stredney
pleaded guilty to felonious assault with a firearm under O.R.C. § 2903.11, which has a scienter
requirement of “knowingly.”
1

4

exclude non-accidental injuries from the definition. See Taylor v. Meijer, Inc., 182 Ohio App.3d 23,
27, 911 N.E.2d 344, 347 (Ohio Ct. App. 2009) (noting that “[t]he test of the right to participate [in
workers’ compensation] is not whether there was any fault or neglect on the part of the employer or
his employees”).
Two Ohio court of appeals decisions have rejected the very argument that Hart is now
making. Luo v. Gao, No. 23310, 2007 WL 675635, at *2 (Ohio Ct. App. March 7, 2007); Vacha v.
North Ridgeville, No. 10CA009750, 2011 WL 1992041, at *3 n. 1 (Ohio Ct. App. May 23, 2011). As
the court in Luo observed, Ohio courts have long recognized that injuries suffered from intentional
physical assaults qualify as injuries under the workers’ compensation statute. Luo, 2007 WL 675635,
at *2 (citing Industrial Comm. v. Pora, 100 Ohio St. 218, 125 N.E. 662 (Ohio 1919)); see also
Delassandro v. Industrial Comm., 110 Ohio St. 506, 144 N.E. 138 (Ohio 1924). Ohio case law
indeed has developed its own “assaults at the place of employment” test to determine if the injury
arose out of the injured employee’s employment. See generally, Lowe v. Cox Paving, Inc., 190 Ohio
App.3d 154, 158-59, 941 N.E.2d 88, 91-92 (Ohio Ct. App. 2010) (reviewing Ohio cases). The
“correct inquiry” is not whether the injury was caused by an accident but whether it was sustained in
the course of employment or arose out of employment. Luo, 2007 WL 675635, at *2.
B.

The Standard is Disjunctive

Plaintiff further argues that an employer is entitled to immunity only if it can prove that the
injury both occurred in the course of employment and arose out of employment. Plaintiff cites to
inapplicable decisions concerning whether injured workers were entitled to benefits under the
workers’ compensation statute, for which both prongs must be satisfied. See Fisher v. Mayfield, 49
Ohio St. 3d 275, 277, 551 N.E.2d 1271, 1274 (Ohio 1990); O.R.C. § 4123.01(C) (providing that an
injury is not compensable unless it was “received in the course of, and arising out of, the injured
employee’s employment”) (emphasis added).

In contrast to the standard for compensability, the

“requirements for immunity are set forth in the disjunctive,” meaning that immunity is granted when
the injury either occurs in the course of employment or arises out of employment. Maynard v.
H.A.M. Landscaping, Inc., 166 Ohio App.3d 76, 83, 849 N.E.2d 77, 82 (Ohio Ct. App. 2006);
accord Saunders, 176 Ohio App.3d at 283, 891 N.E.2d 1202, 1208-09; Hahn v. Groveport, No.
07AP-27, 2007 WL 3027075, at *5 (Ohio Ct. App. Oct. 18, 2007). Section 4123.74 provides for
immunity from liability “in damages at common law or by statute for any injury . . . received or
contracted by any employee in the course of or arising out of his employment.” O.R.C. § 4123.74
(emphasis added).
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Thus, NCO is entitled to immunity from Hart’s negligence claims if it can show that his
injury either was received in the course of employment or arose out of his employment.
C.

Issue Preclusion

Hart next argues that the March 22, 2012 order of the Ohio Bureau of Workers’
Compensation disallowing his claim for benefits has preclusive effect in this suit. 2 Hart contends
that the BWC determined that his injury was not sustained in the course of employment and did not
arise out of his employment. Hart argues that the issue may not be relitigated here.
Under the doctrine of issue preclusion, a party is precluded from relitigating, in a second
action, “an issue that has been actually and necessarily litigated and determined in a prior action,”
even if the prior action was based on a different cause of action.

Ft. Frye Teachers Ass’n,

OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140, 144 (Ohio 1998).
The elements of issue preclusion are: (1) the identical issue was at issue in a previous action; (2) the
issue was passed upon and determined by a court of competent jurisdiction; (3) the issue was
actually litigated, directly determined, and essential to the final judgment in the prior action; and (4)
both actions involved the same parties, or their privies. Price v. Carter Lumber Co., 985 N.E.2d
236, 241 (Ohio Ct. App. 2012).
The court finds that the doctrine of issue preclusion does not apply here. The precise issue
before the BWC was whether the conjunctive standard for compensability was satisfied – whether
the injury occurred in the course of employment and arose out of employment. The BWC held,
“The employee did not sustain an injury in the course of and arising out of employment.” See Doc.
13, Ex. A-1. The BWC stated that its decision was based upon a description of the accident and on
information in the claim file, but the BWC did not provide any additional analysis or separate

Hart argues that the doctrine of res judicata, or claim preclusion, applies and the cases he cites
concern that doctrine. See, e.g., Cooper v. Administrator, Ohio Bureau of Workers’ Comp., Nos.
CA99-07-082 and CA99-09-108, 2000 WL 710082 (Ohio Ct. App. May 30, 2000) (holding that a
prior BWC decision denying benefits had effect of claim preclusion as to the injured employee’s
second application for benefits regarding the same injury and facts).
2

The court believes that the doctrine of collateral estoppel, or issue preclusion, is the doctrine Hart
intends to invoke, given that the essence of Hart’s position is that the BWC has already decided the
issue of whether his injury was sustained in the course of employment and arose out of his
employment. The doctrine of claim preclusion plainly does not apply, as the tort claims brought
here could not have been brought before the BWC, which adjudicates claims for benefits. O.R.C. §
4123.511. The court will accordingly treat Hart’s argument as requesting application of the doctrine
of issue preclusion.
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discussion about whether Hart’s injury satisfied either of the prongs. The only definitive conclusion
to be drawn from the decision is that the BWC found that Hart’s injury did not satisfy both prongs.
The issue before the BWC is not identical to the one presented here. In this case, the
standard for employer immunity is disjunctive and thus the issue is whether Hart’s injury either was
received in the course of employment or arose out of his employment. NCO need only prove that
one of the prongs is satisfied in order to prevail. The court further notes that the plain language of
the immunity statute provides that the immunity determination is made “whether or not such injury,
bodily condition, or death is compensable under this chapter.” O.R.C. § 4123.74. This makes clear
that the legislature intended that a compensability decision not have preclusive effect on an
immunity determination.
The court thus finds that the BWC’s decision disallowing Hart’s claim for benefits does not
have preclusive effect in this action.
D.

In the Course of Employment

The “in the course of employment” prong refers to those injuries “sustained by an employee
while performing a required duty in the employer’s service.” 3 Ruckman v. Cubby Drilling, Inc., 81
Ohio St.3d 117, 120, 689 N.E.2d 917, 921 (Ohio 1998). The employee “need not necessarily be
injured in the actual performance of work for his employer.” Id. (citation omitted). It is sufficient if
the injury “is sustained by an employee while that employee engages in activity that is consistent
with the contract for hire and logically related to the employer’s business. Id. A court should
examine the time, place, and circumstances of the injury in determining whether the injury occurred
in the course of employment. Id.
The court finds that there is no genuine dispute of material fact on the issue of whether
Hart’s injury occurred in the course of employment. As a matter of law, Hart’s injury did occur in
the course of employment. His injury was sustained while he walked between his parked car and the
entrance to NCO’s building. Hart’s workday began at 8:00 a.m., and he arrived at the parking lot at
7:50 a.m. on the morning of the injury. He parked his car in a parking lot that was adjacent to the
NCO building and was for the use of NCO employees. He parked in a particular spot designated

Though the conjunctive standard of compensability does not control here, Ohio case law
concerning the meaning of the “in the course of employment” and “arising out of employment”
prongs has largely been developed in compensability cases. The court will look to those cases for
guidance as to the meaning and application of those prongs.
3

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for employees of the month. Hart testified that he was headed to the building’s rear entrance, which
was “where the employees would enter the building.” Hart Dep. at 16.
Though Hart was not necessarily performing a job duty at the moment he was shot, he was
reporting for work at a time and manner customary for NCO employees. He was walking from the
parking spot designated for him to the building entrance used by employees. Hart testified that
other employees were arriving for work at the same time Hart’s activity of walking from his car to
the building entrance was consistent with, and logically related to, his employment relationship with
NCO.
Hart concedes that his injury occurred at his place of work, but he argues that his progress in
reporting to work was impeded by Stredney when she confronted him with a gun and shot him.
Hart cites no cases in support, and the court finds that his argument concerning impeded progress is
unavailing. In the situation of an employee being involved in a motor vehicle accident in the
employee parking lot, the employee’s progress is certainly impeded, but courts have nonetheless held
that injuries suffered in car accidents in employee parking lots are sustained in the course of
employment and arise out of employment, regardless of whether the employee was reporting to
work or was leaving work. See, e.g., Marlow v. Goodyear Tire & Rubber Co., 10 Ohio St.2d 18, 225
N.E.2d 241 (Ohio 1967); Kobak v. Sobhani, No. 94764, 2011 WL 94496, at *6-7 (Ohio Ct. App.
Jan. 6, 2011); Pursley v. MBNA Corp., No. 88073, 2007 WL 926455, at *2-3 (Ohio Ct. App. March
29, 2007). The fact that the employee’s progress in arriving to or leaving from work was impeded by
the car accidents did not influence the analysis.
An injury of almost any magnitude is likely to disrupt, even if momentarily, the employee’s
performance of his work activity. The relevant question here is what Hart was doing when the
injury occurred. It is undisputed that he was arriving at work in a manner consistent with his
employment relationship. This is not a situation in which Hart chose to abandon an activity logically
related to his employment relationship, such as reporting to work, in order to pursue a non-work
activity. Hart did not voluntary detour from his arrival at work by, for example, walking across the
parking lot to confront Stredney or getting in a car with Stredney to engage in a conversation. See
Masden v. CCI Supply, Inc., No. 22304, 2008 WL3990826, at *4 (Ohio Ct. App. Aug. 29, 2008)
(holding that employee required to travel for work is in the course of employment while traveling
except when he chooses to depart on a personal errand); Pascarella v. Abx Air, Inc., No. CA98-01002, 1998 WL 468810, at *5 (Ohio Ct. App. Aug. 19, 1998) (same). Rather, Hart’s own testimony

8

shows that Stredney confronted him as he walked toward the employee entrance and quickly shot
him after he saw the gun and told her “don’t do this.”
The court’s conclusion that Hart’s injuries occurred in the course of employment is fully
consistent with compensability decisions concerning what is known as the “zone of employment.”
Ohio courts adhere to the “coming and going” rule that injuries suffered while the employee is
commuting to or from his place of employment are not compensable. 4 See MTD Products, Inc. v.
Robatin, 61 Ohio St.3d 66, 68, 572 N.E.2d 661, 663 (Ohio 1991); Johnston v. Case Western Reserve
Univ., 145 Ohio App.3d 77, 82, 761 N.E.2d 1113, 1117 (Ohio Ct. App. 2001). The rationale for the
rule is as follows:
The constitution and the statute, providing for compensation from a fund created by
assessments upon the industry itself, contemplate only those hazards to be encountered by
the employee in the discharge of the duties of his employment, and do not embrace risks
and hazards, such as those of travel to and from his place of actual employment over streets
and highways, which are similarly encountered by the public generally.
Ruckman, 81 Ohio St.3d at 119, 689 N.E.2d at 920 (internal quotation marks omitted). The rule has
clear application to an employee who is injured in a traffic accident on public roads while
commuting to a fixed place of employment, where he begins his employment duties only after
arriving. Id. (citing cases).
Courts have developed a “zone of employment” exception to the coming and going rule for
injuries occurring at “‘the place of employment and the area thereabout, including the means of
ingress thereto and egress therefrom, under control of the employer.’” Johnston, 145 Ohio App.3d
at 83, 761 N.E.2d at 1118 (quoting Marlow, 10 Ohio St.2d at 22, 225 N.E.2d at 244). Injuries that
occur in parking lots or walkways owned or controlled by the employer and intended primarily for
employees’ use have been held to be within the zone of employment. See, e.g., Marlow, 10 Ohio
St.2d at 18, 225 N.E.2d at 242; Kobak, 2011 WL 94496, at *6-7; Pursley, 2007 WL 926455, at *2-3.
Injuries that occur on a public road or sidewalk while the employee walks between their place of
employment and an off-site employee parking lot have been held to be outside the zone of

The “coming and going” rule and the “zone of employment” exception are often discussed
without categorizing them as belonging to a particular prong of the compensability determination.
See, e.g., MTD Products, 61 Ohio St.3d at 68, 572 N.E.2d at 663. They are typically used to
evaluate not only the time and place of the injury but also the cause of the injury. See Janicki v.
Kforce.com, 167 Ohio App.3d 572, 577, 855 N.E.2d 1282, 1285-86 (Ohio Ct. App. 2006)
(describing the rule as a “tool used to determine whether an injury . . . occurs ‘in the course of” and
‘arise[s] out of’ the employment relationship”).
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employment. See Johnston, 145 Ohio App.3d at 83, 761 N.E.2d at 1118-19; Weiss v. Univ. Hosp.
of Cleveland, 137 Ohio App.3d 425, 431-32, 738 N.E.2d 884, 889 (Ohio Ct. App. 2000).
Here, it is undisputed that NCO had control over the premises where the injury occurred.
NCO leased the building, of which it was the sole tenant, and the adjacent private parking lot that
was used by employees. Symsick Aff. at ¶¶ 2-4. Hart concedes in his complaint that the location
where he was shot “was in the possession of and control of” NCO and was part of the “work
environment.” Compl., ¶¶ 4-5.
Thus the court finds that NCO is entitled to summary judgment on the issue of whether
Hart’s injury occurred in the course of employment.
E.

Arising out of Employment

Because the statutory standard is disjunctive, the court’s holding as to the first prong of the
immunity determination is dispositive of Hart’s negligence claims. Even so, both parties have fully
briefed the issues relating to the second prong and the matter is ripe for decision.
The “arising out of employment” prong refers to the causal relationship between the injury
and the injured person’s employment. Ruckman, 81 Ohio St.3d at 121-22, 689 N.E.2d at 922. The
inquiry is based on the totality of the circumstances. Id. (citing Fisher v. Mayfield, 49 Ohio St.3d
275, 277, 551 N.E.2d 1271, 1274 (Ohio 1990)). In the context of “fights and assaults at the place of
employment, Ohio courts have consistently focused on two factors: (1) whether the origin of the
assault was work-related; and (2) whether the claimant was not the instigator.” Lowe v. Cox Paving,
Inc., 190 Ohio App.3d 154, 158-59, 941 N.E.2d 88, 91-92 (Ohio Ct. App. 2010) (citing Foster v.
Cleveland Clinic Found., Nos. 84156, 84169, 2004 WL 2914985, at *3 (Ohio Ct. App. Dec. 16,
2004), and Coleman v. APCOA, Inc., No. 99AP–60, 2000 WL 192560, at *2 (Ohio Ct. App. Sept.
28, 1999)). The “arising out of” prong is satisfied only if both factors are present. Id.
The court finds as a matter of law that Hart’s injury did not arise out of his employment with
NCO. While it is undisputed that Hart was not the instigator, it is equally clear that the origin of the
assault was not work-related. The following facts are not contested by NCO: Hart and Stredney
were once engaged to be married; Stredney was never employed by NCO; and Stredney made
multiple threats to Hart after the engagement was broken off. Hart Aff. at ¶¶ 2-8. The injury to
Hart arose purely out of this dispute about their personal relationship.
On point is the decision in Foster. There, the employee was fatally shot by her husband in
the lobby of the building in which she worked. They had been having marital problems, including
prior “violent outbursts” by the husband. Foster, 2004 WL 2914985, at *3. On the day of the fatal
10

injury, the husband confronted the employee in the parking lot of the place of employment. She
fled to the lobby of the building, where she was shot. The court granted summary judgment against
the death benefits claim of the employee’s estate:
[R]easonable minds could only conclude that [the employee’s] fatal injury arose out of a
personal dispute between [she and her husband] that was unrelated to her employment with
the Clinic. There is simply no evidence to remotely suggest that [the fatal shooting]
originated out of, was related in any way to, or was exacerbated by, her employment at the
Clinic. The quarrel was nothing more than a domestic dispute brought to fruition in the
employment setting. . . .
“Where the animosity or dispute that culminates in an assault is imported into the
employment from claimant’s domestic or private life, and is not exacerbated by the
employment, the assault does not arise out of the employment under any test. . . . . When it
is clear that the origin of the assault was purely private and personal, and that the
employment contributed nothing to the episode, whether by engendering or exacerbating
the quarrel or facilitating the assault, the assault should be held noncompensable.” 1-8
Larson's Workers’ Compensation Law (2003), Sections 8.02(1)(a) and 8.02(1)(c).
Id. See also Lowe, 190 Ohio App.3d at 159-60, 941 N.E.2d at 92 (holding that a fight between two
employees at the workplace was not work-related because the dispute concerned a lunchtime
argument about one employee’s demand that the other employee run an errand for him); Harvey v.
Mayfield, No. CA-2743, 1990 WL 125187, at *2 (Ohio Ct. App. Aug. 20, 1990) (holding that injury
incurred in fight between two employees at the workplace did not arise out of employment because
the dispute concerned alleged damage to one of the employee’s personal property).
The factual scenario here is thus distinguishable from cases in which an assault related
directly to the assailant’s displeasure over how the employee performed his job.

See, e.g.,

Delassandro v. Industrial Comm., 110 Ohio St. 506, 144 N.E. 138 (Ohio 1924) (holding that an
injury to a city street sweeper was compensable because it resulted from an assault by a man who
was upset with the employee for telling him that he had violated city code by sweeping dirt into the
street); Luo, 2007 WL 675635, at *2 (holding that injury arose out of employment where it resulted
from a fight after one restaurant employee spilled hot water on another employee).
NCO argues that the assault was work-related because the shooting would not have
occurred had Stredney not entered onto NCO’s premises. This argument is unavailing for two
reasons. First, Foster held that “but for” causation does not satisfy the causal connection required
for work-relatedness. See Foster, 2004 WL 2914985, at *5 (rejecting the argument that “‘but for [the
injured employee’s] employment, she would she would not have been at the Clinic and would not
have been shot and fatally injured”); see also Lodge v. Knox, No. 58999, 1991 WL 174205, at *3
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(Ohio Ct. App. Aug. 29, 1991) (rejecting “but for” causation). Second, NCO has not produced any
evidence from which it could be found that Hart’s employment exacerbated or facilitated the
dispute. It is true that, according to Hart’s affidavit, that Stredney had once physically assaulted Hart
after gaining unauthorized access into NCO’s building, but Hart states that “the deterioration in
[Hart and Stredney’s] relationship was in no way related to his employment with [NCO].” Hart Aff.
at ¶ 4. That is, the subject matter of their dispute concerned their personal relationship and not any
aspect of Hart’s job duties or employment. Compare with Coleman, 2000 WL 192560, at *2
(holding that there was a genuine issue of material fact on the issue of whether an assault involving
two employees was work-related where the record suggested a mixture of personal and job-related
reasons for the dispute; factfinder could conclude that one employee’s perceived attempt to get the
other employee fired exacerbated an assault that also concerned an argument about their wives).
Because there are facts from which a jury could reasonably find that the origin of the assault
was not work-related, the court finds that NCO is not entitled to summary judgment on the issue of
whether Hart’s injury did not arise out of his employment.
F.

Summary

Section 4123.74 requires that only one of its prongs be satisfied in order for the employer to
be immune from liability for damages at common law. NCO has demonstrated as a matter of law
that Hart’s injury occurred in the course of his employment, and thus NCO is immune from Hart’s
claims for negligence and negligent infliction of emotional distress.
Hart has also asserted a claim for intentional infliction of emotional distress.

Section

4123.74’s grant of immunity does not extend to intentional torts. See O.R.C. § 2745.01 (employer’s
liability for intentional torts); Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250, 255-56,
927 N.E.2d 1066, 1073-74 (Ohio 2010) (citing Blankenship v. Cincinnati Milacron Chems., Inc., 69
Ohio St.2d 608, 433 N.E.2d 572 (Ohio 1982)). Although the first page of NCO’s motion for
summary judgment states that it is directed at the complaint in its entirety, NCO offers no grounds
for why it should be entitled to summary judgment as to the claim for intentional infliction of
emotional distress. Hart’s intentional tort claim will therefore proceed.
IV.

Conclusion
Accordingly, plaintiff’s motion for partial summary judgment (doc. 13) is DENIED.

Defendant’s motion for summary judgment (doc. 11) is GRANTED as to plaintiff’s claims for

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negligence and negligent infliction of emotional distress, and DENIED as to plaintiff’s claim for
intentional infliction of emotional distress.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: July 26, 2013

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