Voorhies v. Park Cafe, Inc. ( 1978 )

No. 13521
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
NELLIE VOORHIES,
Claimant and Appellant,
-vs-
THE PARK CAFE, INC., Employer,
and
STATE COMPENSATION INSURANCE FUND, Insurer,
Defendant and Respondent
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Michael J. P4cKeon argued, Anaconda, Montana
For Respondent:
Andrew J. Utick argued, Helena, Montana
Submitted: November 30, 1977
Filed: J
J N . 5 q-: :)
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from findings of fact, conclusions of
law and judgment entered against claimant by the Workers' Com-
pensation Court. Claimant did not petition for a rehearing,
but appealed directly to this Court.
Claimant Nellie Voorhies was employed by the Park Cafe
in Anaconda, Montana as a fry cook. On February 20, 1975 she
finished her work shift at approximately 2:10 p.m. She left the
cafe by a rear entrance and proceeded to walk down the public
alley toward her car. When she was approximately two car lengths
from the cafe she slipped and fell on the ice, injuring her right
arm and wrist. At the time of her fall claimant was on her way
home from work and had left her employer's premises. Claimant
admitted she was responsible for providing her own transportation
to and from work and that she received no travel pay or specific
allowance for her travel. She testified that all of her duties
were within the restaurant building. The employer did not provide
or designate any specific parking place for claimant and she was
free to park wherever she chose and to use any entrance to and
from the cafe that she might select under any circumstances.
The sole issue on appeal is whether claimant was injured
in the course and scope of her employment which would entitle her
to workers' compensation and medical benefits under the Montana
Workers' Compensation Act,
Claimant presents the argument that her case falls within
an exception to the "premises" rule in that she encountered a
"special hazard" leaving the working premises due to parking her
car in the alley, a benefit to her employer. This is presumed to
place her within the scope and course of her employment. claimant
directs our attention to 1 Larson's Workmen's Compensation Law
S15.13, p. 4-11, where the exception is noted with these two re-
quirements:
"Note that the exception to the premises rule here
involved contains two components. The first is the
presence of a special hazard at the particular off-
remises point. The second is the close association
Ef the access route with the premises, so far as
going and coming are concerned." (Emphasis added.)
Claimant argues that while no parking area was assigned
to her, it was understood the help was to park in the rear or
alley behind the cafe. This in turn, she claims, was a benefit
to her employer by virtue of leaving the metered space in front
of the cafe available to patrons. The record does not support
this argument either in terms of a sacrificial benefit by the
employer or any mandatory parking arrangement of any kind.
There is no legal support in the record to suggest that
Montana has recognized the so-called "special hazard" doctrine.
The fact there was ice in the alley would not present a special
hazard for cafe employees. Any person traversing the alley would
be subject to the same condition. Claimant argues the hazard was
greater than exiting the front door of the cafe. A search of the
record does not reveal any testimony addressed to this point.
The law in Montana applied when there are no recognized
exceptions such as paid travel can be found in Murray Hospital v.
Angrove (1932), 92 l4ont. 101, 109, 10 P.2d 577, in these words:
"While there are certain exceptions to the general
rule, based upon peculiar facts and circumstances,
no court has held-that a workman going to or from
his place of employment in the ordinary manner is
entitled to either compensation or hospitalization
if injured enroute by an instrumentality not under
the control of his employer, either under the ordi-
nary provisions for compensation or treatment after
suffering injury from an industrial accident, and
no such holdinq would be justified under our Act,
- -
as the injury could not arise out of or in the course
of the employment, for the employment ceases ordi-
narily when the period of service is at an end
and the workman leaves the plant for the night, and
does not again begin until he reaches the plant on
the next working shift or day." (Emphasis added.)
92 Mont. 109.
This Court in Hagerman v. Galen State Hospital and State
Compensation Insurance Fund (1977), Mont . , 570 P.2d 893,
34 St.Rep. 1150, 1152, set forth the exception to the law found
in Murray Hospital when authorized travel is involved:
"Unless transportation is made a part of the
employment contract or travel to and from work
is recognized by legislative enactment or contract,
any injuries suffered in such travel are outside
the course and scope of the employment."
Here, claimant was not at the time of her injury carry-
ing out any duties owed to her employer. She was simply return-
ing from her place of employment to her home after completing her
four hour shift and was free to select her own route. Her em-
ployment did not require her to be at the place she sustained
the injury. Therefore, under Montana law, her injury did not
arise out of and in the course of her employment and by reason
thereof she is entitled to neither compensation nor hospitali-
zation.
The judgment of the Workers' Compensation Court is affirmed.
//
/' Justice I/
We concur:
Chief Justice