Quality Car Wash v. Cox

• Decision Date: 18 November 1981
• Citation: 438 A.2d 1243
• Parties: QUALITY CAR WASH and the Home Insurance Company, Employer-Appellant, v. Ronald COX, Employee-Appellee.
• Court: Delaware Superior Court

Page 1243

438 A.2d 1243

QUALITY CAR WASH and the Home Insurance Company, Employer-Appellant, v. Ronald COX, Employee-Appellee.

Superior Court of Delaware, New Castle County.

Argued Oct. 15, 1981.

Decided Nov. 18, 1981.

Appeal from a decision of the Industrial Accident Board. Reversed.

Carl Schnee (argued), and Susan C. Del Pesco, Wilmington, for employer-appellant.

Arthur Inden and C. Vincent Scheel (argued), Wilmington, for employee-appellee.

BALICK, Judge.

This is an appeal by the employer from an award of workmen's compensation benefits.

The claimant was struck by a car while crossing a public road. He was walking toward his car, which was parked in the parking lot of a shopping center across the road from the employer's car wash. Although he had just attended the employer's Christmas party, which is customarily held toward the end of the work day on December 24, the Board found that this has no significance, and neither party appeals from that finding. We may therefore say that the claimant was leaving work. The store in the shopping center nearest to the road was formerly a supermarket but had been vacant for several years. The shopping center parking lot is paved. There was also a parking lot next to the car wash. Although the land is not owned by the employer, it is maintained by the employer as a parking lot for employees. The car wash parking lot is unpaved, although the employer has improved it with gravel. Some employees park in that part of the shopping center lot that is directly across the road from the car wash instead of in the car wash lot.

The applicable section of the statute, 19 Del.C. § 2301(14)a. says as follows:

"(14) 'Personal injury sustained by accident arising out of and in the course of the employment':

a. Shall not cover an employee except while he is engaged in, on or about the premises where his services are being performed, which are occupied by, or under the control of, the employer (his presence being required by the nature of his employment),...."

As to employees having a fixed place of work, the generally accepted rule is that injuries occurring while they are going to and from work are compensable if they occur on the employer's premises, but are not compensable if they occur off the premises. 1 Larson's Workmen's Compensation Law § 15.10. Considering the widespread acceptance of the premises rule and the language of the Delaware statute, the Board correctly assumed that the rule applies in Delaware, even though there has been no reported opinion adopting it.

The premises rule is subject to several exceptions. The two possible exceptions in this case are: (1) injuries sustained while the employee travels along or across a public road between two parts of his employer's premises are compensable, and (2) injuries sustained as a result of a special hazard encountered while traveling the normal route to and from work are compensable.

When an employee is injured while traveling between two parts of the employer's premises, courts sometimes refer to the off-premises place of injury as a "special hazard." This can make it unclear whether compensability is based on one or both exceptions. See, for example, the two cases most relied on by the claimant, Goff v. Farmers Union Accounting Service, Inc., Minn.Supr., 308 Minn. 440, 241 N.W.2d 315 (1976), and Wiley Mfg. Co. v. Wilson, 280 Md. 200, 373 A.2d 613 (1977), the latter being the only case cited by the Board. The Board concluded, with one member dissenting, that "the defendant exercised control of the paved lot in such a way as to make it part of defendant's premises" and that the "highway posed a special hazard to those employees who made use of the paved lot." It thus appears that the Board found that both exceptions apply in this case. In the interest of clarity, I will discuss them separately.

Exception (1) applies only if the shopping center parking lot is part of the employer's premises. Larson explains the exception as it applies to parking lots, which I will call "the parking lot exception," thus:

"Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises. But if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected."

1 Larson § 15.14, p. 4-36

The cases differ as to when a parking lot will be considered part of an employer's premises. Larson summarizes the holdings thus:

"As to parking lots owned by the employer, or maintained by the employer for his employees, the great majority of jurisdictions consider them part of the 'premises,' whether within the main company premises or separated from it. This rule is by no means confined to parking lots owned, controlled, or maintained by the employer. The doctrine has been applied when the lot, although not owned by the employer, was exclusively used, or used with the owner's special permission, or just used, by the employees of this employer."

1 Larson § 15.41, p. 4-62

Rohrs v. State Accident Insurance Fund, Or.App., 27 Or.App. 505, 556 P.2d 714, 716 (1976) analyzes the cases cited by Larson in support of his statement of the rule as to parking lots thus:

"With one possible exception the cited cases involve either an employer providing a parking area as an incident of employment, or, where the employer leases his business premises from a lessor, the lessor has provided a parking area for the convenience of employes (sic) and customers of the leased premises. In all of the cases the employer has established, by ownership and control, or by custom, some form of right to use the parking facilities and that right is passed to the employe (sic) at no cost as an employment benefit. The possible exception is Elwood v. Herkimer Central School, 20 N.Y.2d 869, 285 N.Y.S.2d 614, 232 N.E.2d 646 (1967), rev'g, 25 A.D.2d 457, 266 N.Y.S.2d 57 (1966). In Elwood school officials were given permission by a fraternal organization (sic) to allow teachers to park in their lot adjacent to the school."

I agree with this analysis. A parking lot is not considered part of the employer's premises unless the employer in some way provides it for employees. With the possible exception mentioned above, in every case the employee has acquired the right to use the lot through his employment. If the employer does not own the lot or has not otherwise acquired the right to use it, he must at least exercise control over it before it may be considered part of his premises. The mere fact that employees use a parking lot with the employer's knowledge is not enough. Compare Goff, where there was "a mutual understanding" between the owner of the parking lot and the employer. In the "possible exception," the Elwood case, a school teacher was injured in the parking lot across the street from the school. The lot was owned by the Knights of Columbus. The relationship between the Knights of Columbus and the school is not entirely clear, but it seems that school officials had acquired the right for teachers to use the lot by agreement with the Knights of Columbus. The Appellate Division of the Supreme Court voted 4-1 against coverage, but the Court of Appeals reversed by a vote of 4-3. Those who voted against coverage did so on the basis that the arrangement was between the Knights of Columbus and a group of teachers, and that knowledge of the arrangement without any exercise of control over the lot by the employer is not enough to make the parking lot part of the school premises. In short, this is a hard case on the facts and, if an exception, seems to be an exception that proves the rule.

A rule that use of a parking lot by employees with the employer's knowledge makes the lot part of the employer's premises would suffer from the kind of problems described by Larson in his discussion of attempts to broaden the premises rule. 1 Larson § 15.12. Larson there points out that the premises rule is a practical way of defining a reasonable limit for coverage. In determining when a parking lot is part of the employer's premises, the concept of control serves a similar purpose. If we turn from this to a rule that use of a lot by employees with the employer's knowledge is enough, it will become very hard to draw the line that must be drawn in these cases.

The Board stated its conclusions thus:

"Based upon the evidence received, the Board finds that Quality Car Wash exercised sufficient control of the paved parking area to have this area be considered a part of the premises. We base this finding upon the following facts:

1). We find that Quality used the lot to store or accommodate an overflow of cars waiting to use the car wash services. Quality substantially benefited from this use on several occasions. The Board finds that this action made the lot an extension of the car wash area. In this regard, we do not find that the fact that cars were lined up on the property and the fact that cars were parked upon the property so different a use that control would lie for the overflow but not the parking use.

2). We find that even though Quality provided a parking lot for its employees adjacent to the car wash, the paved parking area was also available for its employees. The provided lot was not the only acceptable parking area. We are convinced that company policy allowed parking on either the provided...