COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan
Argued at Alexandria, Virginia
DONNA CLEVELAND
OPINION BY
v. Record No. 2615-03-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 3, 2004
FOOD LION, LLC #0578 AND
RISK MANAGEMENT SERVICES, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
James E. Swiger (Swiger & Cay, on brief), for appellant.
P. Jason Cording (William B. Pierce; William B. Pierce &
Associates, PLLC, on brief), for appellees.
Donna Cleveland (claimant) contends the Workers’ Compensation Commission
(commission) erred in finding that her accident of June 5, 2002 did not arise out of her
employment with Food Lion (employer). Finding no error, we affirm the commission’s decision.
I. FACTS
We view the evidence in the light most favorable to the employer, who prevailed below.
See Westmoreland Coal v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The
commission’s factual findings are conclusive and binding on this Court when those findings are
based on credible evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989), and Code § 65.2-706.
Employer was one of five stores located in a strip mall that used a common parking area.1
Employer was not responsible for the maintenance of the lot, but did collect shopping carts from
several “corrals” or collection points located in the lot. Each corral occupied an area
approximately the size of one parking place. Employees did not have a designated place to park
and were allowed to park anywhere in the lot. They were asked to leave the spaces near the store
for customer use. The parking lot was separated from the stores in the strip mall by traffic lanes
that allowed ingress and egress for all the stores. A storm drain surrounded by concrete was
embedded in the asphalt of the parking lot at the edge of the traffic lanes and at the end of the
aisle between rows of parking places.
On June 5, 2002, claimant, a front-end worker for employer, parked her car in the parking
lot and walked toward the store entrance to begin her shift. As she neared the store, it began to
rain and she ran toward the store. As she started to cross the traffic lane in front of the store, she
tripped on gravel surrounding the storm drainage grate and injured her knee. The extent of her
injuries and her period of disability are not at issue in this appeal.
1
Article 7(A) of the employer’s lease states in pertinent part:
Parking and Common Area. Landlord hereby dedicates and grants
to Tenant, its employees, agents, suppliers, customers and invitees
a non-exclusive right to use, . . . all the Common Area. The
Common Area shall be used for parking and for ingress and egress
between the Demised Premises and all other areas of the Shopping
Center and the adjoining streets, alleys and sidewalks. . . . 1.
Parking Area. . . . Landlord covenants and agrees at all times
during the Lease Term to provide and maintain a surfaced parking
area. . . . 2. Common Area, In General. . . . Landlord covenants
and agrees to operate and maintain in good condition all of the
Common Area, and to provide all reasonable services therefore,
including, without limitation, safeguarding, cleaning and sweeping,
snow and ice removal, lighting, landscaping, general repair and
maintenance, repainting, striping, watering and maintenance of the
Common Area.
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The deputy commissioner found that:
the conditions of the lot in conjunction with the claimant’s
hastening as a result of the weather caused her injury.
Nonetheless, she was in an area that was available to the customers
and employees of all the tenants of the shopping center. This area
cannot reasonably be considered an extension of the employer’s
premises.
Claimant appealed to the commission, and they agreed:
[Claimant] fell as she was about to enter a traffic lane in the
parking lot. The lot was provided for the use of employees and
customers of at least five stores. At the time of her fall, she was a
considerable distance from any of the stores. On the facts of this
case, we find that the site of injury by accident was not in such
close proximity to the building that it was “in effect” a part of the
employer’s premises.
Claimant appealed that decision.
II.
Appellant contends the commission erred in finding her accident did not arise out of her
employment. She argues that the parking lot was part of the employer’s premises for the purpose
of Workers’ Compensation Act coverage. Credible evidence supports the commission’s finding
that the parking lot was not part of the employer’s “extended premises.”
The question of “[w]hether an accident arises out of the employment is a mixed question
of law and fact and is reviewable by the appellate court.” Plumb Rite Plumbing Service v.
Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989). An injury arises out of the
employment where “[t]here is apparent to the rational mind upon consideration of all the
circumstances, a causal connection between the conditions under which the work is required to
be performed and the resulting injury.” Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E.
684, 686 (1938).
As a general rule, “an employee going to or from the place
where [her] work is to be performed is not engaged in performing
any service growing out of and incidental to [her] employment.”
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Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355
S.E.2d 347, 347 (1987) (quoting Boyd’s Roofing Co. v. Lewis, 1
Va. App. 93, 94, 335 S.E.2d 281, 282 (1985)). Thus, an injury
sustained while traveling to or from work is generally not
compensable. Id. at 190-91, 355 S.E.2d at 347. An accidental
injury sustained when the employee is “going to” work does not
arise “in the course of” the employment simply because the
employee at that time and place is not yet “on the job.” There are,
however, three exceptions to this rule: (1) where the means of
transportation used to go to and from work is provided by the
employer or the employee’s travel time is paid for or included in
wages; (2) where the way used is the sole means of ingress and
egress or is constructed by the employer; and (3) where the
employee is charged with some duty or task connected to his
employment while on his way to or from work. Id. at 191, 355
S.E.2d at 347-48.
Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 636, 414 S.E.2d 426, 429 (1992). See also
Blaustein v. Mitre Corporation, 36 Va. App. 344, 550 S.E.2d 336 (2001), and Kendrick, 4
Va. App. 189, 355 S.E.2d 347.
The determination that a parking lot, neither owned nor controlled by employer, is part of
the employer’s “extended premises” rests on a combination of criteria, including but not limited
to proximity, authority, and responsibility for maintenance. However, like the commission, we
agree that the rationale of Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d 235
(1995), controls the outcome of the instant case and excludes claimant from coverage. Gilmer
was allowed, but not required, to park in a garage across the street from her employer, and the
cost of the parking was deducted from her wages. We held on those facts that “no evidence
showed that [employer’s] employees were required to park in the [bank] parking garage or that
Gilmer sustained her injury in an area of the parking lot reserved for [employer’s] employees
only. Thus, . . . no evidence disclosed any control or authority by [employer] over the area in
which Gilmer parked.” Id. at 607-08, 460 S.E.2d at 237.
In reversing the commission’s award of compensation to Gilmer, we distinguished
Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987), relied on by claimant in this case. We
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noted that “[t]he Court extended the exception to the general rule of ‘going and coming’ to cover
a section of a parking lot that was neither owned nor maintained by the employer, but was used
exclusively, at the employer’s direction, by the employees . . . .” Gilmer, 20 Va. App. at 606,
460 S.E.2d at 236 (emphasis added). Thus, the situs of Barnes’ injury was deemed controlling
because “the parking area in which Barnes was injured was a designated area reserved for the
employer’s employees only.” Id. at 607, 460 S.E.2d at 237.
In Barnes, the employer controlled the use of the parking area. Food Lion did not. In
Barnes the employer was, by lease, given a specific area large enough to accommodate its entire
staff at that location and required its employees to park in that area. Food Lion was not allocated
a specific area and did not control where its employees parked. In Barnes, the measure of
control over the employees’ method of ingress and egress was determined by the employer. By
specifically designating an area “employee parking” and requiring its employees to park there, an
employer is making that area part of its “extended premises” through its control of the use of that
area by its employees.
Here, as in Gilmer, employees were allowed, but not required to park in the lot. The
general public used the lot, and it was neither controlled nor maintained by employer. Claimant
was injured in a common area on the other side of a traffic lane used by all tenants and customers
of the shopping center. In the instant case, the claimant’s route from her car to the location of
the accident was the same as that of any member of the public. The common area was not “an
essential means of ingress and egress from the public right-of-way.” It is undisputed that
claimant was on her way to work when the accident occurred and the “extended premises”
exception to the “going and coming” rule is not applicable in this situation. The evidence failed
to prove that the traffic lane from the parking lot to the store was the “extended premises” of
employer.
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Lastly, claimant relies on Prince v. Pan American World Airways, 6 Va. App. 268, 568
S.E.2d 96 (1988), to support her claim. This reliance is misplaced. Prince was injured on a
sidewalk approximately five feet from the building’s entrance where the employees were
funneled into the door. Id. at 270, 368 S.E.2d at 97. On those facts, we held that:
the walkway was a common avenue of passage over the grounds
and an essential means of ingress and egress from the public
right-of-way to Pan Am’s place of business. As such, it
constituted the premises of another in such proximity and relation
as to be in practical effect a part of the employer’s premises.
Id. at 274, 368 S.E.2d at 98 (internal quotations and citations omitted). In the instant case, the
traffic lane or parking lot is not the equivalent of the sidewalk entry adjacent to a workplace
which made it in “practical effect” a part of employer’s premises.
Thus, credible evidence supports the commission’s finding that claimant’s injury did not
arise out of her employment. The decision of the commission is affirmed.
Affirmed.
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Benton, J., dissenting.
The principle is long standing “that the words ‘arising out of and in the course of the
employment’ should receive a liberal construction in order to carry out the humane and
beneficent purposes of the act.” Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686
(1938). Equally well established is the following definitional test:
[A]n injury “arises ‘out of’ the employment, when there is
apparent to the rational mind upon consideration of all the
circumstances, a causal connection between the conditions under
which the work is required to be performed and the resulting
injury. Under this test, if the injury can be seen to have followed
as a natural incident of the work and to have been contemplated by
a reasonable person familiar with the whole situation as a result of
the exposure occasioned by the nature of the employment, then it
arises ‘out of’ the employment.”
Id. at 335, 196 S.E. at 686 (citation omitted). These fundamental principles underlie the
Supreme Court’s decisions in Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987), and Brown
v. Reed, 209 Va. 562, 165 S.E.2d 394 (1969), which I believe control this case. In both of those
cases, the Supreme Court ruled that employees, who were going to work, suffered injuries
arising out of and in the course of their employment when they were injured on a parking lot
provided by their employers for the convenience of the employees.
In Barnes, the employer’s offices were located in a building next to a very large parking
lot, which was not owned or maintained by the employer. 233 Va. at 250-51, 355 S.E.2d at
330-31. The employer, however, had been allocated a number of spaces on the parking lot
sufficient for its employees “and was ‘specifically requested’ to require its employees to park
their vehicles in the designated area.” 233 Va. at 251, 355 S.E.2d at 331. The Supreme Court
held that an employee suffered an injury that arose out of and in the course of employment when
she was struck by a motor vehicle as she walked across the parking lot after leaving work. Id. at
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253, 355 S.E.2d at 332. Holding that the injury was causally related to the employment, the
Court noted the following:
In the present case, while the situs of injury was not on property
owned or maintained by [the] employer, nevertheless it was on
premises of another that were in such proximity and relation to the
space leased by the employer as to be in practical effect the
employer’s premises. Even though the evidence showed that
members of the public who were visiting other tenants in the office
building could park randomly on the lot in question, the accident
sued upon occurred in the area specifically allocated to the
employer and at the place where the employees were required to
park their vehicles.
Id. at 252-53, 355 S.E.2d at 332.
The Barnes decision devolves in substantial part from the Supreme Court’s earlier
decision in Brown, where an employee was struck by a car while walking across the parking lot
to the place where he was required to punch the time clock before beginning his work shift. 209
Va. at 563, 165 S.E.2d at 395. Holding that the employee’s injury in the parking lot arose out of
and in the course of employment, the Court noted the causal connection between the injury and
the employment conditions. Specifically, the Court ruled that the provision of on-site parking is
a valuable fringe benefit of employment because “[i]t cuts down on absenteeism, enables
employees to report to work on time, and makes employment at a particular company more
attractive.” Id. at 566, 165 S.E.2d at 398. This benefit obviously is provided by the employer
with the expectation its employees will take advantage of it.
The Supreme Court succinctly explained the rationale for these decisions as follows:
In both Brown and Barnes, [the Court] relied on the rationale of
Bountiful Brick Co. v. Giles, 276 U.S. 154 (1928), to determine
whether the accidents arose out of and in the course of the
employment. [There] . . . , the United States Supreme Court stated
that
[An employee’s] employment includes not only the actual doing
of the work, but a reasonable margin of time and space necessary
to be used in passing to and from the place where the work is to be
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done. If the employee be injured while passing, with the express
or implied consent of the employer, to or from his work by a way
over the employer’s premises, or over those of another in such
proximity and relation as to be in practical effect a part of the
employer’s premises, the injury is one arising out of and in the
course of the employment as much as though it had happened
while the employee was engaged in his work at the place of its
performance. In other words, the employment may begin in point
of time before the work is entered upon and in point of space
before the place where the work is to be done is reached.
Painter v. Simmons, 238 Va. 196, 198-99, 380 S.E.2d 663, 665 (1989).2
2
“This rule is by no means confined to parking lots owned, controlled, or maintained by
the employer.” Larson’s Workers’ Compensation Law, § 13.04(2)(a) (2004). Thus, for
example, the Ohio Court of Appeals further explained the rationale as follows:
It would be impractical and illogical to apply this principle [that
an area cannot be a part of the employer’s premises if he does not
have control over it] to a shopping plaza consisting of multiple
independent businesses, each of which would have to be an owner
in common with all the other tenants in order to share a nebulous
control over its geographical confines and simulate a joint zone of
employment. Such concept is too narrow and restrictive and is as
outmoded as holding that an accident sustained by an employee
going to or leaving work by means of an elevator or stairway in a
building shared in common by different tenants, did not occur in
the course of or arise out of the employment because the elevator
or stairway was not part of the premises over which the
employee’s particular employer exercised any control at the time
and place of the accident.
In contrast, the control of the premises test in this case should
be viewed in the light of the control the employer has over
claimant’s work activities in the employment environment and
whether such activities were reasonably incidental to and part of
the necessary obligations of his job. It is of great significance that
appellant’s employer, . . . , was an inseparable business component
of the shopping center environment in which the injury occurred.
The employment environment, which should be an important test
of control, extended constructively from the actual premises of the
[employer’s] store to and included the parking area of the shopping
center.
* * * * * * *
In the instant case, the parking area was appellant’s normal and
customary means to and from his employer’s premises to which
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In the case we decide today, the record proved that Food Lion provided free parking to its
employees in the lot adjacent to its store both for Food Lion’s convenience and as a fringe
benefit for its employees. See Brown, 209 Va. at 566, 165 S.E.2d at 398. See also Berry v. B.
Gertz, Inc., 21 A.D.2d 708, 709 (N.Y. App. Div. 1964) (noting that the employees’ use of the
parking facilities “‘furthered the interests of their respective employers and the accident having
occurred within the parking area . . . was a reasonable incident of the employment, and arose out
of and in the course thereof’”). As the Supreme Court instructs in Barnes, in determining
whether the Act applies when this type of benefit is provided, the issue of who owns or maintains
the parking lot is not dispositive. 233 Va. at 251, 355 S.E.2d at 331. See also De Hoyos v.
Industrial Comm’n, 185 N.E.2d 885, 887 (Ill. 1962) (holding that “whether the employer owns
or does not own the parking lot is immaterial so long as the employer has provided the parking
lot for its employees”); Wells v. Brown, 33 S.W.3d 190, 192-93 (Mo. 2000) (holding that an
employee’s injury was compensable where the employee was injured in a parking lot that the
employer invited its employees to use and where the employee fell while on a customary and
acceptable route to work). Rather, the more significant issue is whether the employer provides to
such passageway was an indispensable appurtenance. In reality,
the employer and the other tenants of the . . . Shopping Center,
having reciprocal rental rights and privileges, were also accorded
the common use and access of the parking area. Logically, to that
extent, this was tantamount to an essential expansion of their
respective premises for the purpose of adequately serving and
furthering their business interests. It follows that the
appellant-employee, as well as the employees of the other tenants,
derived their similar rights and privileges from the shopping center
by virtue of a vested privity in the objectives of their employers.
The conditions and environments of the employment exposed
appellant to the special hazards created by the trafficking of trucks
and automobiles in the parking area from which his injury resulted.
Frishkorn v. Flowers, 270 N.E.2d 366, 368-69 (Ohio Ct. App. 1971).
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its employees parking as a fringe benefit and whether the employee was at a place where the
employer expected the employee to be for employment purposes.
In short, the evidence proved that Donna Cleveland had parked, as she was required by
Food Lion, in one of the spaces on the parking lot away from the front of the store. See Wells,
33 S.W.3d at 192 (ruling that the injury was compensable where the employer “request[ed] that
his employees park in the perimeter of the lot (to save the closer parking for [customers]”)).
Cleveland was crossing the parking lot to enter her employment at Food Lion when she slipped
on gravel in a depressed area near the storm sewer and injured her leg. She suffered her injury
while traversing the area directly between the approved parking area supplied by Food Lion to its
employees and the front door of the Food Lion store. Apropos this case, the Court in Brown,
quoted with approval the following circumstance:
“The parking facilities were furnished by the employer for the use
of the claimant employee and were furnished as an incident of
employment. Where an employer furnishes an employee parking
facilities on the employer’s premises, it is, of course, necessary for
the employee, before he can commence his actual employment
duties, to park his automobile and walk from that portion of the
employer’s premises to that other portion of the premises where he
performs his actual employment duties . . . . In the instant case it
cannot be said that in proceeding from that portion of the premises
where she parked, to her immediate work area and in returning
therefrom, the claimant was on a purely personal mission. We
think that going to and from the parking lot in order to reach and
leave her immediate working area was a necessary incident to the
claimant’s employment.”
Brown, 209 Va. at 567, 165 S.E.2d at 398-99 (citation omitted). Cf. Fouts v. Anderson, 219 Va.
666, 670, 250 S.E.2d 746, 748 (1979) (holding that no causal connection existed between the
workplace and the injury when employee left the parking lot at the completion of his workday
and returned to the lot on a personal mission).
In Cleveland’s case, as in Barnes, “while the situs of [the] injury was not on property
owned or maintained by [the] employer, nevertheless it was on premises of another that were in
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such proximity and relation to the space leased by the employer as to be in practical effect the
employer’s premises.” 233 Va. at 252, 355 S.E.2d at 332. Therefore, the significant factor in
this case is the same as the Court reiterated in Barnes:
if an employee sustains an injury while passing, with the express or
implied consent of the employer, to or from his or her work by a
way over the employer’s premises, “or over those of another in
such proximity and relation as to be in practical effect a part of the
employer’s premises,” the injury is as causally related to the
employment as if it had been sustained while the employee was
engaged in work at the place of its performance.
233 Va. at 252, 355 S.E.2d at 331 (citation omitted). See also Prince v. Pan Am-World Airways,
6 Va. App. 268, 274, 368 S.E.2d 96, 98 (1988) (injury is causally related if it occurs on a
walkway that “constituted the premises ‘of another in such proximity and relation as to be in
practical effect a part of the employer’s premises’”).
Without any analysis of Barnes or Brown, the commission ruled that our decision in
Hunton & Williams v. Gilmer, 20 Va. App. 603, 460 S.E.2d 235 (1995), controls the disposition
of this case. In Gilmer, however, the employee paid to park in a parking garage owned by the
employer’s lessor. 20 Va. App. at 604-05, 460 S.E.2d at 235. Negating any inference that the
employer provided parking to its employees, the record proved that the employer’s status as a
tenant did not entitle the employee to a discounted parking fee and, furthermore, that the
employer did not subsidize the parking for its employees. Id. at 605, 460 S.E.2d at 236. We also
noted that no evidence proved the employee was restricted to or from parking in particular areas
of the garage because of her employment status. Id. Although the lessor required the employer
to collect the parking fee from the employee and “pay by one check for the parking of all its
employees who park in [the] garage,” id., that arrangement was merely for the convenience of
the lessor and the employee. It was not a fringe benefit bestowed upon the employee by the
employer. Thus, we held that the arrangement was a mere convenience for the employees and
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was not the type of valuable fringe benefit bestowed upon the employee by the employer which
would bring them within the circumstances described in Barnes and Brown. See Gilmer, 20
Va. App. at 608, 460 S.E.2d at 237.
For these reasons, I agree with the dissenting commissioner that the employee
“necessarily was required to cross the traffic lane to access the store [from her parking space],
and her ‘presence [in the traffic lane], therefore, was required and expected by virtue of her
employment.’” I would hold, therefore, that Cleveland’s injury arose out of and in the course of
her employment. Accordingly, I would reverse the order and remand for an award in
Cleveland’s favor.
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