City of Phoenix v. Industrial Commission

• Decision Date: 16 January 1969
• Docket Number: No. 9440--PR,9440--PR
• Citation: 104 Ariz. 120,449 P.2d 291
• Parties: CITY OF PHOENIX, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and John N. Adams, Respondents.
• Court: Arizona Supreme Court

Page 291

449 P.2d 291

104 Ariz. 120

CITY OF PHOENIX, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and John N. Adams, Respondents.

No. 9440--PR.

Supreme Court of Arizona, In Banc.

Jan. 16, 1969.

Rehearing Denied Feb. 18, 1969.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Mahowald, Jr., Phoenix, for petitioner.

Robert D. Steckner, Phoenix, Chief Counsel, for respondent The Industrial Commission of Arizona.

McFARLAND, Justice:

This case is before us on a petition by the City of Phoenix for review of a decision of the Court of Appeals, 8 Ariz.App. 193, 444 P.2d 750, which affirmed an award of the Industrial Commission of Arizona denying compensation to the employee and the petitioner. Decision of the Court of Appeals affirmed.

It should be noted that the claimant, named as respondent here, one John Adams, vigorously opposes any reimbursement under our Workmens' Compensation Act. The facts are as follows:

On June 16, 1966, John N. Adams, an employee of the City of Phoenix, was injured in a fall in an elevator located in the Municipal Building of the City of Phoenix at 251 West Washington Street. He was employed by the City of Phoenix as a civil engineer. His offices were located on the 7th floor of the Municipal Building.

Adams had been afflicted with an arthritic condition for approximately twenty years prior to his injury, and for approximately five years prior to his injury he had been so badly crippled that he required the assistance of crutches to ambulate. Because of this it was his custom to go to the office at 7:30 a.m., prior to the 8:00 o'clock rush, and to leave the building at approximately 4:30 p.m., prior to the 5:00 o'clock rush. Co-employees of Adams assisted him in numerous ways, such as helping him out of his chair, and going with him when he left work for the day to bring his car around to the office building basement so that he would not have to walk to the parking lot.

On the day of the accident Adams left work at approximately 4:30 p.m. He rode down the elevator from the 7th floor to the first floor where the other passenger got off, then rode the elevator alone to the basement. As he was leaving the elevator, something occurred in the closing of the doors to knock him off balance and he fell backwards into the elevator and broke his leg. The elevator went up to the 5th floor where Adams was discovered by another employee of the City of Phoenix.

Adams was unable to say exactly what caused him to fall, although he did state that on other occasions he had had the doors of another of the numbered elevators close on him suddenly. He testified that he had never before had difficulty with the particular elevator on which he was riding that night, but it seemed to him then that the doors closed suddenly. Adams testified that at the time the accident occurred he had completed his work for the day and was on his way home. An employee is covered by our Workmen's Compensation Act if he is injured by accident arising out of and in the course of employment. A.R.S. § 23--1021. We have defined these elements in McCampbell v. Benevolent & Protective Order of Elks, No. 536, 71 Ariz. 244, 226 P.2d 147.

'An injury or accident occurs in the course of his employment if the employee is injured while he is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time. 'The words 'in the course of' refers to the time, place, and circumstances under which it occurred.' Goodyear Aircraft Corp. v. Gilbert, (65 Ariz. 379, 181 P.2d 626) supra; Thomas v. Industrial Commission, 54 Ariz. 420, 96 P.2d 407.

'We believe a fair interpretation of the term 'arising out of' to be that the cause producing the accident must flow from a source within the employment. That source must have its situs in some risk inherent in the employment or incidental to the discharge of the duties thereof. In other words there must be some causal relation between the employment and the injury. Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188. If an employee is injured by accident while engaged in the performance of some duty for an employer reasonably contemplated in the employment, regardless of the cause of the accident, it must be considered as an accident during the course of and arising out of such employment due to a risk inherent in the employment or incidental thereto. The risk or danger to which the employee may be subjected may be one existing independently, over which the employer has no control, and for which he is in no wise responsible. It is enough if the duties of the employee require him to subject himself to such risk or danger. The accident caused thereby arises out of the employment as much so as if the employer were responsible for such risk or danger. Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 100 A.L.R. 1044; Meyer v. Royalton Oil Co., 167 Minn. 515, 208 N.W. 645.'

A corollary to these elements is the well-established rule that 'Our workmen's compensation act, like those of most jurisdictions, was not intended to give protection to workers going to and from work.' Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485. There are exceptions, such as where the employee's actual services commence when he leaves home and continue until his return home, Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550; where the employee is performing a special mission for his employer, Cavness v. Industrial Commission, 74 Ariz. 27, 243 P.2d 459; and where the employer furnishes transportation or compensates the employee for his travel time to and from work, Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709.

The petitioner here however urges upon this Court the so-called 'on premises' rule in that it seeks compensation coverage based on the bare fact of Adams's physical presence in his employer's building, even though he was admittedly going home. Such rule is actually an exception to and an incursion into the 'going and coming' rule, and has been adopted in varying degrees, and in many cases greatly extended, in a number of jurisdictions. See Schneider, Workmen's Compensation Text, §§ 1712 et seq. (Permanent Ed.). While this Court has never rejected the 'on premises' exception in so many words, in Cavness v. Industrial Commission, supra, we stated:

'Protection to workmen and their dependents is limited to injuries by accident arising out of and in the course of employment and we recognize that in no event must the workmen's compensation law be converted into a general health and accident coverage.' 74 Ariz. 27, 30, 243 P.2d 459, 462.

See also Strauss v. Industrial Commission, supra. Each case must be decided on its individual facts, and within the framework of the definitions set forth in the McCampbell case, supra. There is no 'rule of thumb' that an injury is compensable merely because it was incurred between the hours of eight to five or occurred within the linear measurements of the employer's premises. The circumstances must be such that the activity engaged in, at the time of the accident, is an incident of the employment. This was well stated in a Michigan case, a jurisdiction which rejected the categorical doctrine of the 'on premise' exception and reaffirmed the early Massachusetts reasoning of In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306:

'Plaintiff's injury did not arise out of and in the course of his employment and for that reason the award should be set aside. The accident occurred after pl...