Order Michigan Supreme Court
Lansing, Michigan
April 3, 2009 Marilyn Kelly,
Chief Justice
136940(19) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
STACY J. SAZIMA, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 136940
COA: 281855
WCAC: 06-000269
SHEPHERD BAR & RESTAURANT and
AUTO-OWNERS INSURANCE COMPANY,
Defendants-Appellants.
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By order dated December 17, 2008, this Court peremptorily reversed the ruling of
the Workers’ Compensation Appellate Commission, which had found that the plaintiff’s
injury occurred in the course of her employment. On order of the Court, the plaintiff-
appellee’s motion for reconsideration is GRANTED. We VACATE our order of
December 17, 2008. The application for leave to appeal the June 17, 2008 order of the
Court of Appeals is DENIED, because we are no longer persuaded that the question
presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
I dissent from the majority’s decision to vacate this Court’s previous order, 482
Mich 1110 (2008), and to deny leave to appeal, effectively reversing our previous
decision. The Workers’ Compensation Appellate Commission (WCAC) erred, in my
judgment, by awarding plaintiff benefits for an injury that did not occur “in the course of
employment.” MCL 418.301(1). Rather, plaintiff was injured while walking from her
car parked along a public street to her place of employment. Because the Worker’s
Disability Compensation Act does not extend to an injury occurring under such
circumstances, I would reverse this decision.
Generally, “injuries that occur while traveling to or coming from work are not
compensable.” Camburn v Northwest School Dist, 459 Mich 471, 478 (1999) (quotation
marks and citation omitted); see also Simkins v Gen Motors Corp (After Remand), 453
Mich 703, 723 (1996). Known as the “coming and going” rule, this protects employers
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from incurring liability for injuries occurring in areas over which they have no control.
An employee can avoid this rule only by establishing one of several established
exceptions, Camburn, supra at 478, none of which is applicable here.
For the “special benefit” exception to apply, the “special benefit” must be the
result of the “activity at the time of the injury.” Id. at 478 (quotation marks and citation
omitted). Plaintiff’s activity at the time of injury was walking to work, which provided
no special benefit to defendant. Bowman v RL Coolsaet Construction Co, 275 Mich App
188, 191 (2007). Instead, plaintiff was “master of [her] own movements upon the street
and encountered there a risk incident to any user of the street.” Dent v Ford Motor Co,
275 Mich 39, 42 (1936).
For the “excessive risk” exception to apply, “travel itself [must be] the
employment.” Chrysler v Blue Arrow Transport Lines, 295 Mich 606, 609 (1940).
“[N]ormal traffic hazards encountered while traveling to and from the place of work are
deemed to be risks common to all . . . .” Id. The plaintiff in Chrysler drove a truck for
the employer. The Court emphasized that his injury was compensable because the
additional risk that caused the injury was created by the inherent purpose of the
employment. Id. Here, plaintiff’s case arises only from the normal hazards all
employees encounter while traveling to work.
Established law simply does not support the majority’s decision to reverse our
previous order. The only basis for this reversal is supplied in previous statements by
justices in the majority: “[t]here is but one answer, the makeup of the Court. The law
has not changed. Only the individuals wearing the robes have changed.” Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 256 (2007) (Kelly, J., dissenting in part); “The
only change has been the composition of this Court.” Paige v City of Sterling Hts, 476
Mich 495, 532-533 (2006) (Cavanagh, J., dissenting in part). In the context of a motion
for reconsideration, and without the benefit of an opinion, the majority effectively
reverses precedent. I dissent.
CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 3, 2009 _________________________________________
0331 Clerk