Fred Meyer, Inc. v. Hayes , 325 Or. 592 ( 1997 )

GRABER, J.,

dissenting.

I respectfully dissent. Although this is a close case, in my view claimant did not establish that her injury was compensable.

“The burden of proving that an injury * * * is compensable * * * is upon the worker. The worker cannot carry the burden of proving that an injury * * * is compensable merely by disproving other possible explanations of how the injury * * * occurred.” ORS 656.266.

On review, the facts are not contested. The Board accepted the parties’ stipulated facts, adopted the “notice [d] facts” found by the administrative law judge, and made its own findings.

The parties stipulated to these facts:

“[C]laimant was assaulted within a half hour of finishing her work shift on a parking lot owned and controlled by the employer. The assault caused injuries which required medical treatment and resulted in disability. At the time she was assaulted, claimant’s vehicle was parked in an area of the lot where the employer had specified that employees could park.”

Among the “notice [d] facts” that the Board adopted were that:

• the distance from the south side of the employer’s building to the sidewalk is about 225 feet;

• light was provided to the parking lot by a publicly owned light at an intersection adjacent to the employer’s premises, by five light fixtures in the parking lot, and by three larger light fixtures at a parking lot across the street from the area where claimant’s car was parked;

• employer’s light fixtures are located about 80 feet south of employer’s building, in between parking spaces; and

• the nearest vehicular entrances and exits are about 160 feet to the west and 200 feet to the north of where claimant’s car was parked at the time of the assault.

The Board made these additional findings, among others:

“On March 20, 1994, claimant finished her shift working in the employer’s apparel department at 8:00 PM. She did some personal grocery shopping in the employer’s grocery department which took about 15 to 20 minutes. After completing her shopping, claimant left the store through the grocery exit and walked toward her car pushing a cart containing groceries. The parking lot was approximately half full of cars when claimant left the store. Claimant’s car was parked approximately 72 yards from the grocery exit.

“On the night of her injury, the upper parking lot was full and claimant parked in an area around the perimeter of the main lot in a space which the employer had designated for employees to park. The area where claimant parked on March 20,1994 was not well lit. The closest lights were half way across the parking lot.

“As claimant approached her car, she was attacked by a man with a knife who apparently attempted to force her into his vehicle. The man had apparently driven his vehicle onto the employer’s lot. * * * Claimant did not know her attacker and the attacker was not known to have any connection with the employer or with claimant.

«H* Hí * ‡ *

“The employer required employees to park on the upper parking lot of the store where claimant worked, or if that lot was full, in areas specified by the employer around the perimeter of the main parking lot. Employees could be disciplined if they parked in areas other than those specified by the employer. On the night claimant was assaulted, there was no security guard in the parking lot. Transients occasionally came onto the employer’s premises including the parking lot area. If transients or other individuals bothered employees or customers, the employer took steps to ask them to leave or called the police. The employer has a policy to escort employees who wished such an escort out to their cars.”

For an injury to be compensable under the Workers’ Compensation Law, it must “aris[e] out of’ and occur “in the course of’ employment. ORS 656.005(7)(a). To determine compensability, the court assesses the sufficiency of the relationship between the injury and the employment.¹ That unitary approach has two parts: the “in the course of’ prong (time, place, and circumstances of the injury) and the “arising out of’ prong (causal connection between the injury and the employment). Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994). Both prongs of the compensability test must be satisfied to some degree. Krushwitz v. McDonald’s Restaurants, 323 Or 520, 531, 919 P2d 465 (1996).

In Norpac Foods, the court relied on Phil A. Livesley Co. v. Russ, 296 Or 25, 29, 672 P2d 337 (1983), for the proposition that being injured on the employer’s premises during work hours is not necessarily a sufficient work connection. 318 Or at 368-69. Rather, the court must “determine whether the injury had its origin in a risk connected with the employment or rationally and naturally incidental thereto.” Livesley, 296 Or at 32. In Livesley, the court quoted with approval from Professor Larson’s explanation of the two-pronged, but unitary work-connection approach:

“ ‘One is almost tempted to formulate a sort of quantum theory of work-connection that a certain minimum quantum of work-connection must be shown, and if the “course” quantity is very small, but the “arising” quantity is large, the quantum will add up to the necessary minimum, as it will also when the “arising” quantity is very small but the “course” quantity is relatively large. But if both the “course” and “arising” quantities are small, the minimum quantum will not be met.’ 1A Larson, Workmen’s Compensation Law § 29.10 at 5-355.” 296 Or at 28 (footnote omitted).

I turn first to the “course” prong of the test. In this case, claimant was injured after leaving work. Ordinarily, an employee who is going to or coming from work is not “in the course of’ employment. Norpac Foods, 318 Or at 366. “The reason for the going and coming rule is that ‘[t]he relationship of employer and employee is ordinarily suspended from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer.’ Heide/Parker v. T.C.I. Incorporated, 264 Or 535, 540, 506 P2d 486 (1973) (internal quotation marks omitted).” Krushwitz, 323 Or at 526-27. An exception to that general rule is recognized for employer-controlled parking lots. Norpac, 318 Or at 366-67. But, because the employee who comes within the parking-lot exception no longer is actually working (as recognized by the general rule against compensating injuries sustained while going to or coming from work), “the ‘course’ quantity is very small.” See Livesley, 296 Or at 28 (quoting Larson).

The “course” quantity is made even smaller in this particular case by the fact that, after her work shift ended, claimant spent more than a quarter of an hour engaged in the personal activity of grocery shopping, before going to the parking lot. Both the length of time and the nature of the activity are such as to be toward the outer edge of the course of employment. See 2 Larson’s Workers’ Compensation Law § 21.60 at 5-45 to 5-56 (rebound ed 1997) (collecting cases on “personal comfort doctrine”; “The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after official working hours while the employee is on the premises engaged in preparatory or incidental acts.”). In all the circumstances of this case, the “course” quantity is so slight that the “arising” quantity must be weighty for claimant’s injury to be compensable under the principles embraced in Livesley.

However, the “arising” quantity is not weighty. The court in Livesley noted that an attack on the job by an unknown person, whose motive may have been personal or related to the employment, is a “neutral” risk rather than a risk distinctly associated with the employment. 296 Or at 30 n 6.

The factors associated with claimant’s employment on which the Board relied are: claimant’s shift ended at 8:00 p.m. when it was dark outside; employer required claimant to park in an area on the perimeter of the parking lot if she drove a car to work and chose not to park on a public street; that area was not well lit, in that the closest lights were half way across the parking lot; and there had been an earlier problem with “transients” in the parking lot.

Taking the last factor first, “transients” are not criminals. There is no finding and no evidence that a “transient” (or, indeed, anyone else) ever had attacked anyone in employer’s parking lot. There is no finding and no evidence that claimant’s attacker, who arrived by car, was a “transient.” There is no finding and no evidence that the earlier presence of “transients” in the parking lot created a risk of assault. Indeed, as the Board found, “the attacker was not known to have any connection with the employer.”²

That leaves time, location and lighting. The Board found that the assault occurred at about 8:30 p.m. and that it was dark outside. The Board further found that claimant’s car was parked about 216 feet (72 yards) from the building, that the lot is adjacent to a public street, that the light fixtures were located about 80 feet from the building, and that the overall width of the parking lot was 225 feet. Accordingly, the Board’s finding that the nearest light was “half way across the parking lot” translates into a finding that the nearest light was about 136 feet (216 feet minus 80 feet) from claimant’s car. Her car was about 160 feet from the nearest vehicular entrance through which the attacker could have driven.

In order for claimant’s injuries to be compensable, one must conclude that a requirement to work until 8:00 p.m. and to park near a public street at a point 216 feet from the employer’s building and 136 feet from the nearest lamppost — without more — creates a risk of assault. As noted above, there is no finding and no evidence of prior assaults at that time or in that location. There also is no finding and no evidence that the neighboring street near which claimant parked was dangerous or that the area was deserted. In fact, although the Board did not make a finding one way or another with respect to the point, the undisputed evidence was that there were customers in the parking lot at the time of the attack. In other words, there is no evidence that the time, location and lighting (employment conditions) created a risk of assault. There is only the post hoc determination that this assault happened to occur under those conditions. Post hoc is not propter hoc, and fear is not causation.

As noted, under ORS 656.266, claimant bears the burden to prove compensability. Moreover, that statute specifies that a claimant cannot carry the burden of proving compensability “merely by disproving other possible explanations of how the injury * * * occurred.” In general, a claimant can carry the burden to prove that injuries sustained in an assault arise out of employment in one of three ways.

In general, an assault arises out of employment if the nature of the work or the setting of the work creates a risk of assault, or if the reason for the assault was a quarrel having its origin in the work. See 1 Larson’s § 11.00 at 3-22 (discussing concept). Here, the only possible basis, and the basis on which the majority relies, is that the time and the setting where employer required claimant to park (if she chose to drive to work and not to park on the public street) created a risk of assault. See id. at § 11.11(b) (assault may arise out of employment when employment required employee to work in or travel through a dangerous locality, or when employee is required to work late at night or in an isolated area). As explained above, claimant’s evidence on this point is weak.

I am aware of no decided case that authorizes workers’ compensation when the “arising” prong and the “course” prong are as tenuous as they are in this case. Even when the “course” prong is stronger than it is in this case, courts often have denied compensation to victims of unknown assailants when the “arising” prong is comparable to what exists here. For example, in Hill City Trucking, Inc. v. Christian, 238 Va 735, 385 SE2d 377 (1989), the Supreme Court of Virginia denied compensation to a truck driver who was assaulted on the road by robbers. The claimant did not show that he was targeted for assault as a truck driver, and anyone traveling at 3:00 a.m. was subject to the same risk. 385 SE2d at 380. The claimant thus failed to supply a causal link between the risk and the employment and, accordingly, failed to show that his injuries arose out of his employment. Ibid.

Similarly, the court in Walk v. S.C. Orbach Co., 393 P2d 847 (Okla 1964), held that the claimant’s injuries from an assault in the employer’s parking lot were not compensable, because they did not “arise out of’ employment. There, the “course” prong was stronger than in this case, because the claimant left for the parking lot immediately after checking out from her work shift, which ended at 6:00 p.m. The court held that the injuries did not arise out of employment, however, because there was no evidence to show that the claimant’s work environment created a risk of assault. The connections on which the claimant relied were that she was required to park in a specified part of the parking lot, where the assault took place, and that her regular work shifts required her to frequent that area at the time the assault took place. Id. at 851. There was no showing, however, that assault was common at that location or time. Ibid. For an injury to be compensable, “there must exist some causal connection between the injury and the employment,” such as the conditions under which the work is required to be performed. Id. at 849-50 (citing Indian Territory Illumination Oil Co. v. Lewis, 165 Okla 26, 24 P2d 647 (1933).

In Gibberd by Gibberd v. Control Data Corp., 424 NW2d 776 (Minn 1988), the claimant was working late and was shot and killed by an unknown assailant while returning to work from a meal break at a nearby restaurant. The court held that the claimant’s death was not compensable, because the claimant was away from the premises on a meal break (making the “course” prong weak) and because there was no evidence to suggest that the assault bore any connection to employment (making the “arising” prong weak). Id. at 781-84.

In Williams v. Salem Yarns, 23 NC App 346, 208 SE2d 855 (1974), the court denied compensation to an employee who was shot by a nearby resident while walking toward the mill’s parking lot. The employee had left the mill after completing his shift, making the “course” prong stronger than in the present case. The court held that the “arising” prong was insufficient, because the assault had an insufficient connection with employment to make it logical to conclude that employment created the risk of the attack. 208 SE2d at 856. The court found, for example, that there was no evidence that the assailant held an animus toward all employees at the mill. Ibid.

In Foster v. Johnson, 264 Ark 894, 576 SW2d 187 (1979), the Supreme Court denied compensation to a claimant who was the victim of an unexplained shooting. The shooting took place on the employer’s parking lot after the employee had left work. 576 SW2d at 188. Although the “course” prong was stronger than is true here, the “arising” prong was not met, because there was no evidence that the assault bore any connection to employment. Id. at 189. See also 1 Larson’s § 11.33 n 5 (collecting cases in which courts have denied compensation for unexplained assaults by nonemployees).

To summarize, claimant failed to establish that her injuries are compensable, because the quantities of both the “course” and “arising” prongs of the work connection test are small. I dissent from the majority’s contrary holding.

Carson, C. J., joins in this dissenting opinion.

1 See ORS 656.012(1) (Legislative Assembly finds that “those injuries that bear a sufficient relationship to employment * * * merit incorporation of their costs into the stream of commerce.”).

2 The majority appropriately does not rely on this factor.