COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
Argued at Richmond, Virginia
BARBARA H. CAMPBELL
MEMORANDUM OPINION* BY
v. Record No. 3156-03-2 JUDGE ROBERT J. HUMPHREYS
JULY 27, 2004
FOOD LION LLC, #835 AND
RISK MANAGEMENT SERVICES, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Robert L. Flax (Flax & Stout, on brief), for appellant.
P. Jason Cording (William B. Pierce; William B. Pierce &
Associates, PLLC, on brief), for appellees.
Barbara H. Campbell appeals a decision of the Workers’ Compensation Commission
denying her claim for benefits. Specifically, Campbell contends the commission erred in failing
to find that her injury arose out of and in the course of her employment. For the reasons that
follow, we affirm the decision of the commission.
We first note it is well established on appeal that we consider the evidence in the light
most favorable to the party prevailing below - in this case, Food Lion LLC, #835 and Risk
Management Services, Inc. (collectively “Food Lion”). States Roofing Corp. v. Bush Constr.
Corp., 15 Va. App. 613, 616, 426 S.E.2d 124, 126 (1993).
So viewed, the evidence established that on February 1, 2000, Campbell was employed
with Food Lion, performing duties such as cake decorating, bread cutting and re-stocking. The
store was located in Glen Eagle Shopping Center. When Campbell arrived at work that day, she
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
parked in the shopping center parking lot on a “slanted hill” that was “about a football field[’s]”
distance away from the entrance to the Food Lion store. Campbell parked away from the
entrance to the store because managers had “asked” the employees not to park too close to the
store and to “park up on the hill like that.”
By about 2:00 p.m., Campbell had not yet had lunch, but was able to take a ten-minute
break. Campbell did not “clock[] out” for that break. She bought “some bread and some lunch
meat” and walked outside to her car. The parking lot was covered with some “lumpy ice,” but in
sections, the “pavement just looked like wet rain water.” As Campbell reached to open her car
door, her left “leg slipped out on [her].” All of her “weight went down” on her right knee.
Although Campbell’s knee was “numb” and “bleeding,” she returned to work and finished her
shift. Approximately one year later, on March 26, 2001, Campbell filed an accident report with
Food Lion claiming an injury to her right knee and leg. Campbell subsequently filed a claim for
benefits with the commission.
After a hearing, the deputy commissioner held that Campbell failed to “satisfy her burden
to prove that she sustained a compensable injury by accident.” Specifically, he found that
Campbell failed to prove her injury arose out of and in the course of her employment because:
1) the evidence established Campbell was not “engaged in performing any work for the
employer” at the time of her fall; and 2) the extended premises doctrine did not apply because
the “parking lot was neither owned [n]or maintained by the employer” and Campbell testified
that she could park anywhere in the lot, “although the employer requested that she not park
directly in front of the store.” On review, the full commission affirmed.
On appeal, Campbell contends the commission erred in determining that the extended
premises and “personal comfort break” doctrines do not apply to her claim. We disagree.
-2-
“A finding by the commission that an injury arose out of and in the course of
employment is a mixed question of law and fact and is properly reviewable on appeal.” Wetzel’s
Painting & Wallpapering v. Price, 19 Va. App. 158, 160, 449 S.E.2d 500, 501 (1994). Further,
factual findings made by the “commission that are supported by credible evidence are conclusive
and binding upon this Court on appeal.” So. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134,
428 S.E.2d 32, 34 (1993). Indeed, “[t]he commission’s findings, if supported by credible
evidence or reasonable inferences drawn from the evidence, will not be disturbed upon review,
even though the record may contain evidence to support a contrary finding.” Estate of Kiser v.
Pulaski Furniture Co., 41 Va. App. 293, 297-98, 584 S.E.2d 464, 467 (2003). Moreover, it is the
claimant’s burden to prove that his or her injury arose out of and in the course of the
employment. See Winegar v. International Telephone & Telegraph, 1 Va. App. 260, 261, 337
S.E.2d 760, 760 (1985).
“The language ‘arising out of’ refers to the origin or cause of the injury while the
language ‘in the course of’ refers to the time, place, and circumstances under which the accident
occurred.” Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836-37 (1990). “An
accident occurs during the course of the employment if it takes place within the period of
employment, at a place where the employee may reasonably be expected to be, and while the
employee is reasonably fulfilling the duties of the employment or is doing something reasonably
incidental to it.” Id.
As a general rule, “an employee going to or from the place where
his work is to be performed is not engaged in performing any
service growing out of and incidental to his employment.” Boyd’s
Roofing Co., Inc. v. Lewis, 1 Va. App. 93, 94, 335 S.E.2d 281, 282
(1985) (quoting Kent v. Virginia-Carolina Chem. Co., 143 Va. 62,
66, 129 S.E. 330, 332 (1925)). Thus, an injury incurred while
-3-
going to or from work is generally not compensable. However,
several exceptions to the general rule have been recognized.
Wetzel’s, 19 Va. App. at 160, 449 S.E.2d at 501.1
The three exceptions to the “going to and from work” rule are: (1)
when the means of transportation is provided by the employer or
the time consumed is paid for or included in the employee’s
wages; (2) when the way used is the sole and exclusive way of
ingress and egress with no other way, or where the way of ingress
and egress is constructed by the employer; and (3) when the
employee on his or her way to or from work is still charged with
some duty or task in connection with the employment. [Kent, 143
Va. at 66, 129 S.E. at 332].
Ramey v. Bobbitt, 250 Va. 474, 478 n.1, 463 S.E.2d 437, 440 n.1 (1995). Campbell conceded
during the hearing that, at the time of her fall, she was not “doing anything associated with
work.” Thus, she contends, essentially, that the parking lot is an extension of Food Lion’s
premises, because it is necessary for employer’s employees to use the lot. Campbell, therefore,
argues the parking lot is analogous to the “exclusive way of ingress and egress.”
As stated above, the Supreme Court of Virginia has held:
[E]mployment includes not only the actual performance of the
work, but also “a reasonable margin of time and space necessary to
be used in passing to and from the place where the work is to be
done.” [Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397
(1969)] (internal quotation marks omitted). Apropos this case and
again quoting from Giles, we stated that 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
1
We have found that principles applicable to going “to and from” the workplace are also
applicable to the journey to and from a lunch break.
“[W]hen the employee has a definite place and time of work, and
the time of work does not include the lunch hour, the trip away
from and back to the premises for the purpose of getting lunch is
indistinguishable in principle from the trip at the beginning and
end of the work day.”
Prince v. Pan American Airways, 6 Va. App. 268, 272, 368 S.E.2d 96, 97 (1988) (quoting 1 A.
Larson, Workmen’s Compensation Law § 15.51 (1985)).
-4-
premises, “or over those of another in such proximity and relation
as to be in practical effect a part of the employer’s premises,” id.,
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.
Barnes v. Stokes, 233 Va. 249, 252, 355 S.E.2d 330, 331 (1987) (quoting Bountiful Brick Co. v.
Giles, 276 U.S. 154, 158 (1928)) (emphasis added).
We thus review the key appellate decisions addressing parking lot accidents to determine
if the parking lot adjacent to Food Lion can be considered “in practical effect a part of the
employer’s premises” – or, in other words, an extension of Food Lion’s premises. Id. In
reviewing those cases, we note the Supreme Court of Virginia has recognized that “[m]erely
being in a parking lot utilized by employees is not enough to impose coverage of the Virginia
Workers’ Compensation Act.” Painter v. Simmons, 238 Va. 196, 198, 380 S.E.2d 663, 664
(1989).
In Brown, the Supreme Court of Virginia upheld an award of benefits where the claimant
was injured in a parking lot maintained by the employer and located on the employer’s property.
In essence, the Supreme Court of Virginia held that the employer in that case furnished the
parking lot as an incident of employment. Brown, 209 Va. at 568, 165 S.E.2d at 399.
In Barnes, the claimant was struck by a car operated by a fellow employee, in a private
parking lot adjacent to their place of employment. Barnes, 233 Va. at 250, 355 S.E.2d at 330.
“The lot was neither owned nor maintained by the employer, but the employer was allocated a
portion of the lot, which accommodated all of its employees, and directed its employees to park
in the designated area.” Stone v. Keister’s Market & Grill, 34 Va. App. 174, 180-81, 538 S.E.2d
364, 367 (2000) (explaining Barnes, 233 Va. at 250, 355 S.E.2d at 330).
In finding that the claim was compensable, the Supreme Court of
Virginia held: 1) the injury occurred in an area specifically
allocated to the employer at a place where the employees were
required to park their vehicles and 2) the claimant’s injury was
-5-
sustained while she passed to her work, with the consent of the
employer, over the premises of another “‘in such proximity and
relation as to be in practical effect a part of the employer’s
premises.’” Barnes, 233 Va. at 252-53, 355 S.E.2d at 331-32
(citation omitted).
Id. at 181, 538 S.E.2d at 367 (emphasis added).
In Hunton & Williams v. Gilmer, 20 Va. App. 603, 604, 460 S.E.2d 235, 235 (1995), the
claimant slipped and fell on ice that accumulated in a parking garage across the street from the
employer’s premises. Like Food Lion, the employer did not own or maintain the parking garage.
Id. “The garage was owned by the employer’s landlord.” Stone, 34 Va. App. at 181, 538 S.E.2d
at 368 (explaining Gilmer, 20 Va. App. at 604-05, 460 S.E.2d at 235-36). “The claimant paid to
park in the garage,” but “[t]he employer did not require its employees to park in the garage.” Id.
at 181, 538 S.E.2d at 368. Further, “[n]o evidence established that the employer’s workers were
assigned to a particular location within the garage.” Id. On those facts, this Court refused to
apply the “extension of the premises” doctrine beyond the Supreme Court’s holding in Barnes.
Id. In so holding,
[w]e wrote that the Barnes decision was predicated on the
employer’s authority and control over the location of the accident.
[Gilmer, 20 Va. App. at 607-08, 460 S.E.2d at 237]. Because there
was no evidence that the employer required its employees to park
in the garage or that the claimant was injured in an area reserved
only for the employer’s workers, we found that the claimant failed
to prove that the employer had any control or authority over the
area in which she parked. Id.
Id.
In Ramey, the claimant was killed on a public street adjacent to the employer’s premises
while on the way to work. 250 Va. at 476-77, 463 S.E.2d at 439. “The employer did not provide
parking for the employees, who generally parked on public streets.” Stone, 34 Va. App. at 182,
538 S.E.2d at 368 (explaining Ramey, 250 Va. at 476, 463 S.E.2d at 439). “The Supreme Court
-6-
of Virginia held that the public street was not part of the employer’s premises and it was not a
place where the employer expected decedent to be for employment purposes.” Id.
Thereafter, in Stone, we denied compensation where claimant was injured by an
oncoming car when she was crossing a public highway in order to get from a parking lot to her
employer’s premises. Stone, 34 Va. App. at 177-78, 538 S.E.2d at 365-66. Employees were not
permitted to park in the strip shopping center parking lot where the employer was located, and
there was no on-street parking nearby. Id. at 177, 538 S.E.2d at 366. Accordingly, employees
often parked in a lot directly across the highway from the employer’s premises. Id. at 177-78,
538 S.E.2d at 366. The lot, however, was not owned, leased or maintained by the employer and
there were no designated parking spaces for the employees. Id. We found that,
[w]hile employees could not park on the employer’s premises, they
could park any other place they chose. Employer did not pay for
employees’ parking, did not designate parking spaces for the
employees, and the lot was not used exclusively by employees.
Unlike in [Brown], the parking lot was neither owned nor
maintained by employer and its use was not an incident of
employment. Unlike in Barnes, the accident did not occur in an
area specifically allocated to employer at a place where employees
were required to park.
Id. at 182, 538 S.E.2d at 368.
Similar to this line of cases, and unlike Barnes and Brown, it is clear that here, Food Lion
did not possess the requisite control over the location of Campbell’s fall, nor did her fall occur at
a place Food Lion expected her to be for purposes of her employment. Although, under the
terms of its lease, Food Lion could have exercised control over the maintenance of the parking
lot, Food Lion did not own the parking lot, nor did it assume primary responsibility for the
maintenance of the lot.2 In fact, the lease merely allowed Food Lion to conduct regular
2
Food Lion’s lease specifically provided as follows, in relevant part:
Landlord covenants and agrees to operate and maintain all the
Common areas as herein defined, and provide therefore all such
-7-
maintenance of the parking lot, after the landlord, upon 30 days written notice, failed to do so.
Although the lease allowed Food Lion to contract only for “snow and ice removal,” without such
prior notice, the terms of the lease clearly reflected that the landlord assumed primary
responsibility for contracting for such services. Further, the testimony established that prior to
Campbell’s accident, the landlord, as provided for in the lease, had always done so. Thus, while
the parking lot was no doubt convenient for Food Lion’s employees and, therefore, valuable to
Food Lion, it hardly compared to the “company parking lot” at issue in Brown. Brown, 209 Va.
at 566, 165 S.E.2d at 398. For that reason, absent the conditions noted in Barnes, where 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,” Barnes, 233 Va. at 253, 355 S.E.2d at
332, “the Workers’ Compensation Act does not apply.” Gilmer, 20 Va. App. at 608, 460 S.E.2d
at 237.
In the case at bar, and contrary to Barnes, Food Lion was not allocated a portion of the lot
to accommodate its employees, nor did it direct or require its employees to park in any
designated area (other than asking them not to park near the store entrance). In fact, Food Lion’s
services as are reasonably required including, but without
limitation, cleaning and sweeping, snow and ice removal, lighting,
policing, general repair and maintenance, repainting, striping,
watering and maintenance of the Common Areas. If the Landlord
after thirty (30) days of receipt of written notice from Tenant to do
so, shall fail to make the repairs or perform the services described
in this paragraph Tenant shall have the right to make such repairs
or cause such services to be performed in its behalf . . . . Nothing
to the contrary withstanding, Landlord and Tenant hereby agree
that Tenant may contract for snow and ice removal in the Common
Areas, on behalf of the Landlord without prior notice and Landlord
shall reimburse Tenant for the cost of said snow and ice removal
within 30 days after Landlord has received a paid copy of the
invoice.
(Emphases added).
-8-
ability to use the parking lot was non-exclusive with regard to the other businesses located in the
strip shopping mall. Moreover, Campbell’s injury occurred while she was walking to her car,
which was nearly 100 yards away from the store – not in an area that could arguably be
characterized as the exclusive means of ingress and egress into the Food Lion store. Compare
Prince v. Pan American Airways, 6 Va. App. 268, 270, 274, 368 S.E.2d 96, 97-98 (1998)
(finding that a walkway leading from a public sidewalk onto the grounds surrounding the
building in which employer’s office was located, and to the entrance of that building, was an
essential means of ingress and egress from the public right-of-way to employer’s place of
business where claimant was injured on that walkway, approximately five feet from the building
entrance). For these reasons, we find no error in the commission’s determination that
Campbell’s fall occurred in an area that was beyond that which could be viewed as one “‘in such
proximity and relation as to be in practical effect a part of the employer’s premises.’” Barnes,
233 Va. at 252, 355 S.E.2d at 332.
We further find no merit in Campbell’s contention that the commission erroneously failed
to extend the “personal comfort doctrine” to her claim. “The personal comfort doctrine, as
applied to workers’ compensation claims, in theory has general acceptance among the
authorities.” Cadmus Magazines v. Williams, 30 Va. App. 129, 132, 515 S.E.2d 797, 798
(1999).
“Employees who, within the time and space limits of their
employment, engage in acts which minister to personal comfort do
not thereby leave the course of employment, unless the extent of
the departure is so great that an intent to abandon the job
temporarily may be inferred, or unless, in some jurisdictions, the
method chosen is so unusual and unreasonable that the conduct
cannot be considered an incident of the employment.”
Id. (quoting 2 Larson, The Law of Workmen’s Compensation ch. 21, p. 21-1 (1999)). The
Supreme Court of Virginia has likewise approved the doctrine, noting:
-9-
It is uniformly held that “[a]n injury sustained by an employee
while engaged in the performance of an act essential to his
personal comfort and convenience, but ultimately for the benefit of
the employer, is compensable as ‘arising out of’ and ‘in the course
of’ the employment.”
Id. (quoting Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686 (1938) (citation
omitted)).
However, the decisions in which this doctrine has been applied have specifically noted
that the injury occurring during the “personal comfort” time occurred, on the employer’s
premises. See id. (noting the parking lot where the injury took place was enclosed by a fence,
that access was controlled by employer’s security guards, that the general public had no right to
use the lot, and that claimant did not leave company parking lot); Bradshaw, 170 Va. at 336-37,
196 S.E. at 687 (noting that it is well settled that “[a]n injury sustained by an employee while in
the act of satisfying his thirst ordinarily arises ‘out of’ and ‘in the course of’ the employment,”
“provided the employee uses the facilities furnished to him by the employer, or does not depart
from the employer’s premises, or go to some place thereon where he has no right to be” (internal
quotation omitted)); see also Prince, 6 Va. App. at 272, 368 S.E.2d at 97 (holding that the “going
to and from work” doctrines apply to those employees leaving the premises to take a lunch
break, but noting that such doctrines apply in the case of the extended premises doctrine when
the employee was in an area “‘in such proximity and relation as to be in practical effect a part of
the employers’ premises’” (quoting Barnes, 233 Va. at 252, 355 S.E.2d at 331)). That is not the
case here. Thus, as we have found that Campbell’s injury did not occur on the employer’s
premises or an extension thereof, we do not address this issue further.
Finally, we find no merit in Campbell’s implied claim that the commission erred in
failing to hold that Food Lion violated Code § 65.2-300(A). That code section provides that
Every employer and employee, except as herein stated, shall be
conclusively presumed to have accepted the provisions of this title
- 10 -
respectively to pay and accept compensation for personal injury or
death by accident arising out of and in the course of the
employment and shall be bound thereby. Except as otherwise
provided herein, no contract or agreement, written or implied, and
no rule, regulation or other device shall in any manner operate to
relieve any employer in whole or in part of any obligation created
by this title.
Code § 65.2-300 (emphasis added). Campbell contends that by failing to undertake maintenance
of the parking lot, or by failing to take exclusive possession of the parking lot by its contract with
the landlord, Food Lion violated this statute. However, the statute clearly requires only that an
employer not attempt to “contract out” of his or her duties and obligations under the Act. It does
not require – contrary to Campbell’s implicit assertion – that an employer make agreements that
would effectively extend its liability beyond the bounds of its own premises.
For these reasons, we affirm the decision of the commission.
Affirmed.
- 11 -