Jennings v. Backyard Burgers of Asheville , 123 N.C. App. 129 ( 1996 )

472 S.E.2d 205 (1996)

Oliver J. JENNINGS, Employee/Plaintiff;
v.
BACKYARD BURGERS OF ASHEVILLE, Employer;
U.S. Fidelity & Guaranty Company, Carrier/Defendants.

No. COA95-849.

Court of Appeals of North Carolina.

July 2, 1996.

Elizabeth G. McCrodden, Raleigh, for plaintiff-appellee.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by Allan R. Tarleton, Asheville, for defendant-appellants.

ARNOLD, Chief Judge.

The sole issue on appeal is whether plaintiff's injury by accident, which resulted from a hazardous condition on property adjacent to his employer's premises, arose out of and in the course of employment when defendant employer instructed him to use that route for ingress and egress. Defendants contend that the "premises" rule limits the compensability of an employee's injuries while going to and from work to those occurring on property the employer owns, controls, or maintains. In light of a recent Supreme Court decision on this issue, we must agree.

To be compensable under the Workers' Compensation Act, an injury must arise out of and in the course of employment. N.C.Gen.Stat. § 97-2(6) (1995). This state's "coming and going" rule provides that an injury occurring while an employee travels to and from work does not arise in the course of employment and therefore is not compensable. Barham v. Food World, 300 N.C. 329, 332, 266 S.E.2d 676, 678, reh'g denied, 300 N.C. 562, 270 S.E.2d 105 (1980). However, the "premises" exception to the "coming and going" rule applies when an employee is injured while going to and coming from work on the employer's premises. Id., 266 S.E.2d at 679.

While we may not agree with our Supreme Court's recent decision in Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996), we are nevertheless bound by it. The Royster Court found noncompensable an employee's injury that occurred when he was struck by a car while crossing a public highway between his place of employment and a parking lot owned and operated by the defendant employer. Id. at 282-83, 470 S.E.2d at 31-32.

In reversing this Court's decision in Royster, the Supreme Court rejected the view adopted by many other jurisdictions that the "premises" exception extends to an injury occurring on an off-premises place that is on a necessary route between the place of employment and the employer's parking lot. See, e.g., 1 Larson, Workmen's Compensation Law, § 15.14(b) (1995); Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Knoop v. Industrial Comm'n, 121 Ariz. 293, 589 P.2d 1325 (App.1978); Wentworth v. Sparks Regional Medical Ctr., 49 Ark.App. 10, 894 S.W.2d 956 (1995); Lewis v. WCAB, 15 Cal.3d 559, 125 Cal.Rptr. 353, 542 P.2d 225 (1975); State Compensation Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960); West Point Pepperell, Inc. v. McEntire, 150 Ga.App. 728, 258 S.E.2d 530 (1979); Gray Hill, Inc. v. Industrial Comm'n, 145 Ill. App.3d 371, 99 Ill.Dec. 295, 495 N.E.2d 1030 (1986), cert. denied, 479 U.S. 1089, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987); Harlan Appalachian Regional Hosp. v. Taylor, 424 S.W.2d 580 (Ky.Ct.App.1968); Thomasee v. Liberty Mut. Ins. Co., 385 So.2d 1219 (La.App.1980), cert. denied, 392 So.2d 675 (La.1980); Wiley Mfg. Co. v. Wilson, 280 Md. 200, 373 A.2d 613 (1977); Smith v. Greenville Prods. Co., 185 Mich.App. 512, 462 N.W.2d 789 (1990); Lewis v. Walter Scott & Co., 50 N.J.Super. 283, 141 A.2d 807 (1958); Gaik v. National Aniline Div., Allied Chem. & Dye Corp., 5 A.D.2d 1039, 173 N.Y.S.2d 409 (1958); Blair v. Daugherty, 60 Ohio App.2d 165, 396 N.E.2d 238 (1978); Swanson v. General Paint Co., 361 P.2d 842 (Okla.1961); Willis v. State Acc. Ins. Fund, 3 Or.App. 565, 475 P.2d 986 (1970); Epler v. North Am. Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978); Branco v. Leviton Mfg. Co., Inc., 518 A.2d 621 (R.I.1986); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn.1989).

The Royster Court instead relied on Barham, in which an employee of a store in a shopping center was injured while walking to her workplace after parking her car in the shopping center parking lot, which was used by both employees and customers. The Barham Court denied compensation because the employer did not own, maintain, or control the parking lot, and the employee was not performing any duties of her employment at the time of the injury and was not exposed to any danger greater than that of the general public. Barham, 300 N.C. at 333-34, 266 S.E.2d at 679-80. Finding Barham analogous, the Royster Court denied compensation "because defendant did not own or control the public street on which plaintiff was injured... [and] plaintiff was not performing any duties for defendant at the time of the injury and was not exposed to any greater danger than that of the public generally." Royster, 343 N.C. at 282, 470 S.E.2d at 31.

Under the narrow "premises" rule articulated by the Royster Court, we are compelled to deny compensation in the case at hand. Although defendant Backyard Burgers instructed plaintiff to use the adjacent parking lot for ingress and egress to the workplace, and the lot was accessible only by using the hazardous stairway, defendant did not own, maintain, or control the stairway or parking lot, and at the time of his injury plaintiff was not performing any duties for defendant. Thus, under Royster, plaintiff's injury does not fall within the "premises" exception to the "coming and going" rule and is not compensable.

In light of Royster, we must reverse the Opinion and Award of the Full Commission.

Reversed.

JOHN C. MARTIN and SMITH, JJ., concur.