Opinion
No. 7910IC688
Filed 4 March 1980
Master and Servant 62.1 — workers' compensation — grocery store employee — injury in loading zone while going from car to work site — on-premises injury Plaintiff grocery store employee sustained an injury by accident arising out of and in the course of her employment when she slipped and fell on ice in a loading zone in front of defendant employer's store in a shopping center while she was walking to her work site after parking her car in the shopping center parking lot where the loading zone was used for making deliveries to defendant's store and for loading groceries into the cars of the store's customers, and defendant on occasion exercised control over the loading zone by ordering people to move their cars therefrom, since the accident in effect occurred on defendant employer's premises.
APPEAL by defendants from the opinion and award of the North Carolina Industrial Commission filed 18 May 1979. Heard in the Court of Appeals 6 February 1980.
McNairy, Clifford Clendenin, by Harry H. Clendenin III, for plaintiff appellee.
Smith, Moore, Smith, Schell Hunter, by J. Donald Cowan, Jr. and William L. Young, for defendant appellants.
Judge HILL dissenting.
Plaintiff in this workers' compensation case is a woman who was employed by defendant Food World at the time of her accident. She worked in the delicatessen and bakery section of a Food World store located in a shopping center in Greensboro. On 4 February 1977, as plaintiff was walking from where she had parked her car to her work site, she slipped and fell on a patch of ice in front of the Food World store, sustaining injuries.
On 16 January 1979 Commissioner Coy M. Vance filed an opinion and award finding that plaintiff had sustained an injury by accident arising out of and in the course of her employment. Defendants appealed that decision to the full Commission which, with one member dissenting, adopted and affirmed the hearing commissioner's opinion and award. Defendants appeal from the opinion and award of the full Commission.
The issue presented for our review is whether the full Commission erred in adopting and affirming the opinion and award of the hearing commissioner determining that plaintiff sustained an injury by accident arising out of and in the course of her employment. Defendants argue that on the facts of this case plaintiff is not entitled to benefits under the Workers' Compensation Act and that the award in her favor should be reversed.
In affirming Commissioner Vance's award, the full Commission stated: "It is the opinion of the majority of the Full Commission that this is basically an `on-premises' type case and that plaintiff was in the course of her employment." The Commission relies upon a series of cases in arriving at this decision, including Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432 (1966); Davis v. Manufacturing Co., 249 N.C. 543, 107 S.E.2d 102 (1959); and Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47, cert. denied, 274 N.C. 274 (1968). This trio of cases recognized an exception to the general rule that injuries sustained in travel to and from work are not compensable under our statute. Justice Higgins succinctly outlined this exception in Maurer:
". . . the great weight of authority holds that injuries sustained by an employee while going to and from his place of work upon the premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment within the meaning of the Workmen's Compensation Acts and are compensable provided the employee's act involves no unreasonable delay." Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (citing many authorities).
266 N.C. at 382, 146 S.E.2d at 433-34.
The key phrase in this passage is "deemed to have arisen out of and in the course of the employment." Under the law of these cases, if an employee is found to have sustained injuries while going to or from work upon any part of his employer's premises, this is sufficient to hold the employee's injuries compensable. The required causal connection between the injuries and the employment has been satisfied, as set forth in Davis, supra.
It seems clear that claimant's going from this parking lot to her working area, all on her employer's premises, was a necessary incident to her employment, and there was a causal connection between her employment and the injury she received with the result that the injury by accident she suffered arose out of and in the course of her employment.
249 N.C. at 549, 107 S.E.2d at 106.
We think that these cases are still controlling in the area of workers' compensation. Even after the North Carolina Supreme Court's decision in Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977), upon which defendants strongly rely and which we shall discuss infra, all three cases are cited by that same court in Strickland v. King and Sellers v. King, 293 N.C. 731, 239 S.E.2d 243 (1977). In fact, even the passage from Maurer is set out in the Strickland opinion. In Strickland claimant was denied recovery, but on the basis that the accident occurred a substantial distance (1 1/2) miles) from the employer's plant and parking lot.
Our conclusion, therefore, is that if it were determined without error that plaintiff sustained injuries while going to or from work upon any part of her employer's premises, she would be entitled to receive compensation for those injuries.
Commissioner Vance made the following findings of fact:
4. The defendant employer leased the store which gave them access to the entire parking lot of the shopping center to allow their customers and employees to use while shopping and working. There was a sidewalk which ran in front of each store in the shopping center.
5. There was a traffic lane marked off with yellow lines directly in front of defendant employer's store for the convenience of their customers to pick up and load their groceries. Delivery trucks also parked there when unloading supplies delivered to defendant employer. The bag boys employed by defendant employer placed groceries in customers' cars in the loading zone.
6. Mr. James Hill, manager of the store, notified employees where they should park while at work away from directly in front of the store in order that the customers could use the space directly in front of the store.
7. There was a water drain coming from the roof of the store which emptied onto the loading zone. The water had frozen and made a strip of ice from the sidewalk out into the street.
8. On February 4, 1977, plaintiff was walking from where she had been instructed to park to her work position. She started to take a long step over the icy strip that was in the loading zone in front of Store No. 19. Her shoe heel struck the ice and she fell backwards breaking her ankle . . . .
9. Defendant employer leased space for Store No. 19 and the lease gave the store access to all parking space at the shopping center for its employees' and customers' use.
Defendants except to findings 4, 8, and 9. This Court, of course, is limited to determining whether there is any competent evidence in the record to support these findings of fact. Byers v. Highway Comm., 275 N.C. 229, 166 S.E.2d 649 (1969).
We think findings of fact 4 and 9 are supported by the evidence of Food World's vice-president and controller, Lowell Plunkett, who testified: "We have a right for our employees to use the parking lot." On further examination he also stated: "Food World does have the right for its customers to park there if they want to shop at the store." Similarly, we think there is competent evidence to support finding of fact 8. It is uncontested that Food World instructed its employees not to park directly in front of the store. Plaintiff, along with other Food World employees, had parked for more than two years in the west section of the parking lot.
The evidence supports the Commission's finding that plaintiff slipped and fell while in the loading zone in front of the store. This loading zone was not leased by Food World, but was marked with yellow lines on the pavement and used by Food World for delivery and unloading of supplies for the store. It was also used by the store's customers to load their automobiles with products bought in the store and by the store's bag boys who carried groceries to the customers' cars. They were not permitted to carry customers' bags out into the parking lot. On occasions, Food World had also exercised control over the loading zone by ordering people to move their cars out of the zone.
As mentioned previously, defendants strongly rely upon the case of Gallimore v. Marilyn's Shoes, supra, in urging that the award to plaintiff be reversed. In Gallimore, an employee of a shoe store located in a shopping mall was kidnapped and fatally injured when she went to her car after leaving her place of work. The crucial distinguishing feature of Gallimore is that there is absolutely no evidence that it is an "on-premises" case. The employer in no way provided plaintiff with a parking place, and the killing did not occur in an area controlled by the employer or used by it in its business.
The findings of fact adopted by the full Commission support its opinion that the case sub judice is basically an "on-premises" type case.
In order for an accident to be "on-premises" within the meaning of Maurer, it is not necessary that the employer own or lease the area in question. It is enough that the employer controls the area and uses it in his business. The evidence in this case supports the conclusion that plaintiff was injured in an area, the loading zone, controlled by Food World and used in its business. Therefore, we affirm the Commission's conclusion that this is an "on-premises" case and that plaintiff sustained an injury by accident arising out of and in the course of her employment.
Affirmed.
Chief Judge MORRIS concurs.
Judge HILL dissents.