Barham v. Food World, Inc.

• Decision Date: 03 June 1980
• Docket Number: No. 123,123
• Citation: 266 S.E.2d 676,300 N.C. 329
• Parties: Martha BARHAM v. FOOD WORLD, INC., Employer and Standard Fire Insurance Company, Carrier.
• Court: North Carolina Supreme Court

Page 676

266 S.E.2d 676

300 N.C. 329

Martha BARHAM v. FOOD WORLD, INC., Employer and Standard Fire Insurance Company, Carrier.

No. 123.

Supreme Court of North Carolina.

June 3, 1980.

McNairy, Clifford & Clendenin by Harry H. Clendenin, III, Greensboro, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr., and William L Young, Greensboro, for defendants-appellants.

BRANCH, Chief Justice.

The sole question presented for review is whether plaintiff sustained an injury arising out of and in the course of her employment with defendant Food World. Defendants maintain that the evidence does not support a finding or conclusion that plaintiff's injury occurred on the premises of the employer and that therefore plaintiff's injury did not arise out of and in the course of employment. Plaintiff, on the other hand, contends that the evidence supports the conclusion that defendant employer had control of the loading zone; thus, she argues that the area should be treated as the employer's premises. Plaintiff submits that, since the injury occurred on the defendant Food World's premises, she sustained an injury arising out of and in the course of her employment.

In reviewing an order and award of the Industrial Commission in a case involving workmen's compensation, this Court is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings. Byers v. Highway Commission, 275 N.C. 229, 166 S.E.2d 649 (1969). Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner's findings in this regard, we are bound by those findings. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

Commissioner Vance's findings of fact in the instant case include the following:

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.

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9. Defendant employer leased space for Store No. 19 and the lease gave the store access to all parking spaces at the shopping center for its employees' and customers' use.

The Commissioner then found as a fact and concluded as a matter of law that plaintiff sustained an injury arising out of and in the course of her employment.

In order to be compensable under our Workers' Compensation Act, an injury must arise out of and in the course of employment. G.S. 97-2(6). The two requirements are separate and distinct, and both must be satisfied in order to render an injury compensable. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). The term "arising out of" refers to the origin or causal connection of the injury to the employment; the phrase "in the course of" refers to the time, place and circumstances under which the injury by accident occurs. Id.

As a general rule, injuries occurring while an employee travels to and from work do not arise in the course of employment and thus are not compensable. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962). "(W)hile admittedly the employment is the cause of the workman's journey between his home and the factory, it is generally taken for granted that workmen's compensation was not intended to protect him against all the perils of that journey." 1 A. Larson, Workmen's Compensation Law § 15.11 (1978). However, 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. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977); Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432 (1966); Larson, supra. Such a rule is not without its problems. See Larson, supra, § 15.12. Even so, the "premises rule" supplies a real and tangible connection between the injury and the employment. Id. Furthermore, the reason for the rule "is, and always has been, the impracticality of drawing another line at such a point that the administrative and judicial burden of interpreting and applying the rule would not be unmanageable." Id. While certain exceptions to the premises rule are recognized, e. g., Larson, supra, § 15.13, none of those exceptions is applicable to the facts of this case.

The resolution of this case thus turns on whether the evidence supports a determination that the loading zone was on defendant Food World's premises so that the injury can fairly be said to have arisen in the course of plaintiff's employment. The Commission and the Court of Appeals both determined that this is essentially an on-premises case. We disagree.

Lowell W. Plunkett, Vice-President of defendant Food World, testified in pertinent part and without contradiction as follows:

Food World does not own or lease the sidewalk in front of the store. The sidewalk is a common area. Food World does not own or lease the pick up and loading lane. The loading lane is a common area. Food World does not own or lease the parking area. The parking lot is a common area. We have a right for our employees to use the parking lot. The loading area extends across the front of King's, Food World and the Country Kitchen.

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Customers at all the stores in the shopping center use the loading area. . . . The pick up and loading lane is for the convenience of all the customers in the shopping center.

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Food World does not have any lease responsibility, ownership or responsibility for the parking lot in King's Shopping Center.

There are numerous cases dealing with parking lot injuries and the vast majority which permit recovery do so on the ground that the employer owned, maintained, provided, controlled, or otherwise exercised dominion over the parking lot, walkway or other area in question. E.g., De Hoyos v. Industrial Commission, 26 Ill.2d 110, 185 N.E.2d 885 (1962); Dewar v. General Motors Corp., 19 N.J.Misc. 297, 19 A.2d 194 (1941); Maurer v. Salem Co., supra; E. I. du Pont de Nemours Co. v. Redding, 194 Okl. 52, 147 P.2d 166 (1944). While the evidence here indicates that defendant Food World instructed its employees not to park in the loading zone, and that occasionally it asked customers to move their cars from the zone, we do not think such evidence rises to that level of control which is necessary to support a determination that this loading zone was a part of defendant Food World's premises. To the contrary, the uncontradicted evidence is to the effect that Food World neither owned nor leased the parking lot or the loading zone. It had no responsibility for the upkeep or maintenance of those areas and had no obligation or authority under its lease with the shopping center to instruct drivers not to park in any particular area. The evidence indicates that the parking lot and loading zone were common areas, and that all of the stores had access to them for the convenience of their customers. We therefore hold that, under the uncontroverted facts of this case, the parking lot and loading zone were not sufficiently under the control of defendant Food World so as to permit the conclusion that those areas constituted a part of the employment premises. See Donzelot v. Park Drug Co., 239 S.W.2d 526 (Mo.Ct.App. 1951); Workmen's Compensation Appeal Board v. Hentish, 20 Pa.Cmwlth. 514, 314 A.2d 926 (1975); Tri-City Towel & Linen Service, Inc. v. Cope, 529 S.W.2d 51 (Tenn. 1975). Furthermore, plaintiff has failed to demonstrate that she was performing any duties for her...