P.B. Bell & Associates v. Industrial Commission

JACOBSON, Chief Judge,

dissenting.

I dissent.

As indicated in the majority opinion, the Administrative Law Judge’s determination was based upon the rationale of Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App.1978), that is, that either the parking lot generally or the parking lot which encompassed the “covered” spaces are a portion of the employer’s premises and therefore travel between these separate portions of the premises (as an exception to the coming and going rule) arises out of and in the course of the employment. Specifically, the Administrative Law Judge and the majority do not base compensability in this case on a finding that the “stoop” leading from the building housing the employer’s offices were part of the employer’s premises.1 I therefore accept the basic premise underlying the majority’s opinion, that this is an “off premise” injury case.

It is also important to emphasize that the claimant’s activity in going to lunch clearly falls within the well recognized “coming and going” rule, that is, that injuries occurring during such activity are not compensable as either arising out of or in the course of the employment. Pauley v. Industrial Commission, supra.

Since I agree with the rationale of Knoop, the question presented is whether the parking lot in this case is the same type of parking lot as was presented in Knoop. This requires an understanding of the “premise” rule itself. Prior to the decision of Pauley v. Industrial Commission, supra, Arizona adhered to a strict interpretation of the coming and going rule, that is, until a worker actually commenced his duties of employment, the worker was still in the process of “coming” to work and therefore was not yet within the course of his employment. See McCampbell v. Benevolent & Protective Order of Elks, 71 Ariz. 244, 226 P.2d 147 (1950) (denying coverage to an employee who slipped and fell while climbing steps outside the Elks Lodge on his way to work). This prior rule was subject to criticism because it was based upon a proximity test to the actual work site resulting in somewhat arbitrarily drawn distances. See 1 Larson's Workmen’s Compensation, §§ 15.11 and 15.12, and examples cited therein.

Most courts have now adopted a test, not based upon proximity to the actual job site, but upon whether the accident occurred on the employer’s premises. This rule was adopted in Pauley when the court held:

... [Wjhen an employee is going to or coming from his place of work and is on the employer’s premises he is within the protective ambit of the Workmen’s Compensation Act____

109 Ariz. at 302, 508 P.2d at 1164.

This “premise” liability is based, not upon the special risks or hazards which are encountered on the employer’s premises, but because the employer controls those premises and thus makes injuries occurring thereon arising out of and in the course of employment. This is made clear by the following passage from Pauley:

*510... [B]ut we think workmen’s compensation should not be expanded to injuries sustained while off the employer’s premises, when the hazards encountered are not peculiarly within the employer’s control. (Emphasis added)

109 Ariz. at 302, 508 P.2d at 1164.

With this in mind, I turn to the “premise to premise” rule adopted in Knoop. In Knoop, the employer maintained and controlled a parking lot located across a public street from the employer’s place of business. This parking lot was clearly part of the employer’s premises. Not only was the parking lot maintained and controlled by the employer, the employees were ordered to use that lot. The claimant Knoop was injured on a public street while crossing from the parking lot to the employer’s business. In finding the injury compensable the court in Knoop held:

After careful consideration, we believe that the exception to the going and coming rule for travel across a public road between two portions of the employer’s premises is a reasonable exception, at least where, as here, the employee was told to park in the lot where she parked on the day she was injured. In this situation, petitioner was subjected to the risk involved in crossing 14th Street as a result of her employment. By locating the lot where it did so that petitioner had to cross 14th Street, and by telling petitioner to park there, respondent employer helped create the situation which caused her accident. (Emphasis added)

121 Ariz. at 297, 589 P.2d at 1329.

In analysis, then, Knoop is merely a logical extension of the premise “control” rationale, that is, the employment subjected the employee to a risk “as a result of her employment” which the “employer helped create.”

This is completely in keeping with Larson’s analysis of the rationale for the compensability of travel between two parts of the employer’s premises:

... [I]n this instance, as in many others, the concept of “course of employment” follows that of “arising out of employment”; that is, the employment-connected risk is first recognized, and then a course-of-employment theory must be devised to permit compensation for that obviously occupational risk.
We have, then, a workable explanation of the exception to the premise rule: it is not proximity, or reasonable distance, or even the identifying of surrounding areas with the premises: it is simply that, when a court has satisfied itself that there is a distinct “arising out of” or causal connection between the conditions under which the claimant must approach and leave the premises and the occurrence of the injury, it may hold that the course of employment extends as far as those conditions extend.”

1 Larson, Workmen’s Compensation, § 15.15 p. 4-42 to 4-43.

Thus, if the basis of “premise” liability is employer control, the basis of “travel” liability between employer’s premises is the causal connection of the employment created risk that such travel entails. The “arising out of” or causal connection in Knoop was the employer imposed requirement that employees use a parking lot which exposed them to the hazards of crossing a public street.

With this identification of rationale in mind, I turn to the facts and legal premises of this case. First, I must disagree with the cases cited in the majority opinion that employee parking, regardless of employer ownership, control or maintenance are part of the employer’s premises. In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo.App. 92, 554 P.2d 705 (1976), cited by the majority, the landlord of the employer tenant allowed the employer’s employees to use its parking lot. There is no indication that the employer paid any additional rental for this privilege, but it is clear that the employer had no control over the lot, did not maintain it or require its employees to utilize that parking. The claimant was injured when she stepped on ice in the parking lot. The Colorado court *511after determining that there must exist a causal connection between the employment and this off-premise injury found that connection as being a “parking privilege” which was a “fringe benefit” and that the claimant was enjoying that “fringe benefit” when she was injured, hence a causal connection. The problem with this reasoning is that the “fringe benefit” does not appear to have been bestowed by her employer, but rather by her employer’s landlord. It also appears to have been a “fringe benefit” shared with the world at large, that is, all the other employees and customers of the landlord’s tenants. In my opinion this is not a sufficient employment causally related connection to satisfy Larson’s “arising out of the employment” rationale. Also, this opinion ignores the requirement that something in the employment itself must impose the exposure to risk that the travel to and from work entails.

Likewise, Frishkorn v. Flowers, 26 Ohio App.2d 165, 270 N.E.2d 366 (1971), which is also cited by the majority, ignores any employment imposed risk, but rather defines a “zone of employment” which includes a parking lot at a shopping center with 43 tenants. No Arizona case, to my knowledge, has embraced such a concept.

To utilize the travel between two parts of the employer’s premise rationale of Knoop, it is first necessary to have two separated employer’s premises. In determining what constitutes an employer’s premises, the employer, at a minimum, must exercise some measure of control over that area. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676 (1980). To ignore this requirement is to ignore what gives rise to the premise liability in the first instance — control. Also to ignore this requirement is to simply return to the discredited theory of proximity to the employer’s premises under the guise of defining what constitutes that premises. This is exactly what the majority has done by inference in defining the parking lot in general as being a portion of the employer’s premises. The majority’s protestations not to the contrary, this is also exactly what was warned against in Knoop.

The majority points out, however, on the occasion of this injury the claimant was accompanying a fellow employee who utilized a covered parking stall, for which the employer paid additional rent. I would agree in the broadest sense that such covered stalls could be considered as part of the employer’s premises because presumably the employer at least exercised control over which employees enjoyed this protection from the Arizona sun and presumably could have other less fortunate individuals ejected from the shade. However, simply defining the two separated employer’s premises, contrary to the majority’s conclusion, does not mean that travel between these two premises automatically places the traveler in the course of his employment. Rather, both Larson and Knoop require that the employee travel arise out of the employment, that is, have a causal connection to the employment. As to this claimant, no such causal connection exists. There is nothing in the employment relationship which required that the claimant accompany her fellow worker to lunch.2 Nor is the going to lunch itself within the course of employment. Thus, I am unable to find any employment created risk which would take this normally noncompensable journey out of the universally followed coming and going rule. In this regard the majority’s conclusion that the rule in Knoop is satisfied by merely identifying two separated portions of the employer’s premises and placing the injured claimant in a position between these two points is, in my opinion, erroneous. To put the matter in proper perspective, if the reasoning of the majority’s rule is given its logical extension, a workman who lived between two separated work places of his employer would be within the course of his employment if he fell on his front steps as he was leaving for work.

*512For the reasons stated I would set aside the award.

. Since this theory was urged upon the Administrative Law Judge and the Administrative Law Judge determined the issue upon other grounds, there was an implied rejection of this theory. I conclude that factually and legally that rejection is supportable. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973).

. The Administrative Law Judge specifically found that the luncheon engagement was not a business related activity, a finding which is factually supportable in the record.