Deseth v. LensCrafters, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: LEVINSON.
• Citation: Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264 (N.C. App. 2003)
• Decision Date: 02 September 2003
• Docket Number: No. COA02-1306.,COA02-1306.
• Parties: Dana L. DESETH, Deceased, Employee/Plaintiff, v. LENSCRAFTERS, INC., Employer, and Liberty Mutual Insurance Company, Carrier/Defendants.

585 S.E.2d 264

160 NC App. 180

Dana L. DESETH, Deceased, Employee/Plaintiff, v. LENSCRAFTERS, INC., Employer, and Liberty Mutual Insurance Company, Carrier/Defendants.

No. COA02-1306.

Court of Appeals of North Carolina.

September 2, 2003.

Womble Carlyle Sandridge & Rice, PLLC, by Clayton M. Custer, Greenville, for plaintiff-appellant.

Nelson Mullins Riley & Scarborough, L.L.P., by Paul J. Osowski, Charlotte, and John E. Schmidt, III, Columbia, for defendants-appellees.

LEVINSON, Judge.

Plaintiff appeals from a unanimous opinion of the North Carolina Industrial Commission denying compensation. We affirm.

Dana Lee Deseth (the decedent) was employed as a retail manager for the LensCrafters store located at Hanes Mall in Winston-Salem, North Carolina. On 14 September 1997, after driving to Hanes Mall to open the LensCrafters store, decedent parked his vehicle at a considerable distance from the entrance and began walking towards the mall. While traversing the mall parking lot, decedent was struck by a vehicle driven by another LensCrafters employee, Rod Pandolfo. Decedent died two days later from resulting injuries.

The findings of fact of the Industrial Commission (Commission) recite the relevant details of the incident leading to decedent's injury and death. The Commission found, in pertinent part, the following:

2. Employee-decedent parked his automobile in the mall parking lot farthest away from the store, as it was his custom to do, and was walking across the empty parking lot towards the LensCrafters store. The LensCrafters store at Hanes Mall has an outside entrance that is accessible to the public. Employee-decedent was carrying the store keys along with other work related material in his hand as he was walking across the parking lot.

3. Employee-decedent had reached the edge of the parking lot and was about to cross the inner loop road into the curtilage of the property in front of the LensCrafters' outside entrance as Rod Pandolfo was driving his automobile along the inner loop of the mall, heading towards the parking lot to park his car. Mr. Pandolfo was running late for work and had been cutting across the empty parking lot to arrive at the parking lot in front of LensCrafters. Mr. Pandolfo was driving his automobile at approximately 30 miles per hour. There was testimony that Mr. Pandolfo intentionally directed his automobile at employee-decedent as if to play the game of chicken with employee-decedent. There was some evidence that employee-decedent had participated in the game of chicken with Mr. Pandolfo and other employees. But on this occasion there was an independent witness who saw the incident and indicated that from her stand point employee-decedent... attempted to get out of the way but could not and the automobile struck him causing him to fly up into the air and coming to rest in front of the automobile.

....

5. Employee-decedent was struck while he stood in the parking lot at the edge of the marked parking stalls in front of the LensCrafters store and Loading Dock C of Hanes Mall. The time of the accident was 12:02 p.m 6.... Under the terms of the lease between LensCrafters and Hanes Mall, LensCrafters received a non-exclusive right to use, along with approximately 200 other Mall tenants, all of the common areas including the parking lot in question. This non-exclusive right was subject to LensCrafters[`] acknowledgment and agreement that, "Landlord shall, at all times, have full control, management and direction of the Common Areas...."

7. The mere right of LensCrafters to use the parking lot under the terms of the lease with the mall does not constitute "sufficient control" over the parking lot to allow a finding that the parking lot was within LensCrafters' premises. LensCrafters had no more control over the area of the parking lot where the accident occurred than any other tenant in the mall. LensCrafters did not control nor [sic] maintain the parking lot referenced above and employee-decedent was not exposed to any danger greater than the public in general.

8. Employee-decedent's injuries did not occur on the employer's premises. Employee-decedent's injuries occurred on property that was controlled exclusively by the landlord ... who owns Hanes Mall.

The Commission reached the following conclusions of law:

1. Employee-decedent did not sustain an injury by accident while in the course and scope of his employment with defendant. N.C. Gen.Stat. § 97-2(6).

2. Employee-decedent's injuries did not occur on the employer's premises. Therefore, employee-decedent's injuries do not fall within the limited exception to the `coming and going' rule that applies when an employee is injured when going to or coming from work on the employer's premises. Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996).

3. Employee-decedent did not sustain an injury by accident while in the course and scope of his employment with defendant. Injuries occurring while an employee travels to and from work that do not arise in the course of employment are not compensable. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676 (1980).

Plaintiff appeals from the opinion and award of the Commission.

Plaintiff does not challenge the Commission's findings of fact, and they are, therefore, binding on appeal. Johnson v. Herbie's Place, ___ N.C.App. ___, ___, 579 S.E.2d 110, 118 (2003); Okwara v. Dillard Dep't Stores, Inc., 136 N.C.App. 587, 591, 525 S.E.2d 481, 484 (2000). Rather, plaintiff contends that the Commission erred in concluding that compensation was unwarranted. This Court reviews the Commission's conclusions of law de novo. Griggs v. E. Omni Constructors, ___ N.C.App. ___, ___, 581 S.E.2d 138, 141 (2003).

Plaintiff advances three separate theories on appeal: (1) the decedent's injury arose out of and in the course of employment because defendant LensCrafters maintained and/or controlled the premises where the accident occurred; (2) the injury arose out of and in the course of employment because, even if the decedent was not on the defendant's premises at the time of the accident, he was, nonetheless, performing the work-related activity of opening his employer's store for business at that time; and (3) the Commission erred by not considering, as an alternative basis for awarding compensation, that the decedent's job placed him at an increased risk of harm. We address each of these arguments in turn.

First, plaintiff contends that the decedent suffered an injury arising out of and in the course of employment because defendant LensCrafters controlled and maintained the parking lot where the injury occurred. This is so, plaintiff argues, because Hanes Mall required defendant to pay "for its share" of parking lot maintenance and was expected to direct and control where its employees parked at Hanes Mall. We disagree.

For an injury to be compensable, it must be an "injury by accident arising out of and in the course of employment[.]" N.C.G.S. § 97-2(6) (2001). "Whether an injury arises out of and in the course of ... employment is a mixed question of fact and law, and our review is thus limited to whether the findings and conclusions are supported by the evidence." Creel v. Town of Dover, 126 N.C.App. 547, 552, 486 S.E.2d 478, 481 (1997) (citing Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982)).

The phrase `arising out of' refers to the requirement that there be some causal connection between the injury and claimant's employment. `In the course of' refers to the time and place constraints on the injury; the injury must occur `during the period of employment at a place where an employee's duties are calculated to take him[.]'

Id. at 552-53, 486 S.E.2d at 481 (quoting Powers v. Lady's Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982)) (citation omitted).

The "coming and going" rule provides that "injuries occurring while an employee travels to and from work do not arise in the course of employment and thus are not compensable." Barham v. Food World, 300 N.C. 329, 332, 266 S.E.2d 676, 678 (1980). A limited exception to the "`coming and going' rule may arise when an employee is injured when going to or coming from work but is on the employer's premises." Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996). "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." Barham, 300 N.C. at 333, 266 S.E.2d at 679; see also Glassco v. Belk-Tyler, 69 N.C.App. 237, 316 S.E.2d 334 (1984) (denying compensation to a mall tenant's employee who was injured in the mall parking lot). Barham and Glassco govern the present analysis.

In Barham, the North Carolina Supreme Court held that an injury had not occurred on an employer's premises where an employee slipped and fell on ice while in the parking lot and loading zone in front of her employer's store:

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

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