Cardwell v. Jenkins Cleaners, Inc. ( 2010 )

MARTIN, Chief Judge,

dissenting.

The majority concludes, and I do not disagree, that competent evidence was presented to support the Commission’s findings of fact that defendant-employer “neither had exclusive control of the parking lot nor cleaned or maintained the parking lot. .. and the lease did not otherwise grant defendant-employer any rights or control over the parking lot.” I also agree with the majority that it was based upon these and similar findings that the Commission concluded plaintiff-employee’s injury did not “arise out of and in the course of’ her employment. However, I do not agree that there was any competent evidence presented to support the Commission’s finding that plaintiff-employee slipped and fell on black ice as she was “walking through the parking lot to the back door.” (Emphasis added.) Instead, the evidence presented indicated that plaintiff-employee slipped and fell on black ice in the cement access area in front of the employee-only entrance door of defendant-employer’s business. Accordingly, as plaintiff-employee argues in her brief,² since this access area — which occupies the three feet between the employee-only entrance door and the six-to eight-inch high cement curbs that mark the end of the paved adjoining parking lot — is “in such proximity and relation” to defendant-employer’s premises so as to be “in practical effect a part of employer’s premises,” I believe the Industrial Commission erred by concluding that plaintiff-employee’s injury did not “arise out of and in the course of’ her employment with .defendant-employer. Therefore, I would vote to reverse the Commission’s Opinion and Award denying plaintiff-employee’s claim, and would remand the matter to the Commission for further proceedings.

As the majority has recognized, “[i]n order to be compensable under our Workers’ Compensation Act, an injury must arise out of and in the course of employment.” Barham v. Food World, Inc., 300 N.C. 329, 332, 266 S.E.2d 676, 678, reh’g denied, 300 N.C. 562, 270 S.E.2d 105 (1980). While it is a general rule “that injuries sustained by an employee while going to or from work are not ordinarily compensable,” see Bass v. Mecklenburg Cty., 258 N.C. 226, 231-32, 128 S.E.2d 570, 574 (1962), “the rule has evolved that an employee injured while going to and from work on the employer’s premises is generally covered by the Act.” Barham, 300 N.C. at 332, 266 S.E.2d at 679; see Bass,³ 258 N.C. at 232, 128 S.E.2d at 574 (“[T]he great weight of authority holds that injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment within the Workmen’s Compensation Acts and are compensable.”). As our Supreme Court has recognized:

“If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and, relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance.”

Bass, 258 N.C. at 232-33, 128 S.E.2d at 575 (emphasis added) (quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 72 L. Ed. 507, 509 (1928)). Thus, “the moment when [an employee] begins his work is not necessarily the moment when he gets into the employment,” because “a reasonable margin must be allowed him to get to the place of work if he is on the premises of the employer or on some access to the premises which the employer has provided.” Hunt v. State,⁴ 201 N.C. 707, 710-11, 161 S.E. 203, 205 (1931) (emphasis added); see also Bass, 258 N.C. at 233, 128 S.E.2d at 575 (“ ‘Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer.’ ” (quoting Bountiful Brick Co., 276 U.S. at 158, 72 L. Ed. at 509)).

According to the testimony of plaintiff-employee, as well as that of defendant-employer’s owner, at the time plaintiff-employee was injured during the early morning hours of 23 January 2008, she had her key in hand, was within three steps of the rear entrance door marked “Authorized Personnel Only,” and was within reach of defendant-employer’s premises where she would begin to carry out her job functions, which included unlocking the door, turning on the lights, setting up the cash register, and getting “ready for business.” Thus, plaintiff-employee presented uncontroverted evidence that both “the origin or causal connection of [her] injury to the employment,” as well as “the time, place and circumstances under which [her] injury by accident occur [red],” rendered her injury compensable. See Barham, 300 N.C. at 332, 266 S.E.2d at 678.

Our Supreme Court has “repeatedly held ‘that our Workers’ Compensation Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction.’ ” Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968)), reh’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). In the present case, I believe the Commission narrowly construed the evidence presented so as to contravene the purpose of the Act. I agree that there is competent evidence to support the Commission’s finding that plaintiff-employee “had not entered the store, or even reached the back door, prior to slipping, falling, and injuring her wrist.” However, the evidence establishes, without contradiction, that the location of plaintiff-employee’s fall was within three steps of the employee-only entrance door to defendant-employer’s premises and that, after her fall, plaintiff-employee was within close enough proximity of said door to be “able to pull herself up and unlock the door with her left hand” in order to enter the premises to call defendant-employer and seek medical attention. Thus, in light of the evidence presented and in keeping with the purpose of the Act, I believe the Commission erred by failing to conclude that plaintiff-employee’s injury “arose out of and in the course of” her employment when she slipped and fell in an area that was within the “reasonable margin” allowed to her to access the premises which defendant-employer provided,” Hunt, 201 N.C. at 710-11, 161 S.E. at 205, and was “in such proximity and relation as to be in practical effect a part of the [defendant-]employer’s premises.” Bass, 258 N.C. at 233, 128 S.E.2d at 575 (internal quotation marks omitted). Therefore, I respectfully dissent.

2 . The majority indicates that plaintiff-employee “does not argue that the cement area was part of [defendant-]employer’s premises.” However, as I read plaintiff-employee’s brief, she argues her injury occurred either on defendant-employer’s premises, or in an area that is “in practical effect a part of the employer’s premises,” on pages 13-15, 19-21, and 24-26 of her brief.

3 . The majority concludes that Bass is inapplicable to the present case. However, the majority repeatedly cites Barham, which itself relies on Bass. Indeed, one of the majority’s direct quotes from Barham is a principle that Barham recognizes as having been borrowed from Bass.

4 . While the majority recognizes, and I do not disagree, that the facts of Hunt are distinguishable from the present case, it is my opinion that the principles of law articulated in Hunt are nevertheless applicable here.