Quintero v. N.M. Dept. of Transp.

Decision Date31 August 2010
Docket NumberNo. 28,875.,28,875.
PartiesSarah QUINTERO, Plaintiff-Appellant, v. STATE OF NEW MEXICO DEPARTMENT OF TRANSPORTATION and Does 1 through 5, inclusive, Defendants-Appellees.
CourtCourt of Appeals of New Mexico

Branch Law Firm, Turner W. Branch, Frank Balderrama, Albuquerque, NM, for Appellant.

Long, Pound & Komer, P.A., Mark E. Komer, Santa Fe, NM, for Appellees.


VIGIL, Judge.

{1} This case presents an issue of first impression: whether the Workers' Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2007), is the exclusive remedy for a clerical worker, who was injured as a result of the alleged negligence of a State agency while in the course of commuting on public transportation to her job, because she happened to work for a separate State agency. We hold that the exclusivity provisions of the Act do not bar Plaintiff's negligence action. The district court having held otherwise, we reverse.


{2} The material facts are undisputed. Plaintiff lives in Albuquerque and was an employee of the New Mexico Department of Public Safety (DPS) in Santa Fe. Her duties with DPS consisted of clerical work, fingerprinting members of the public, and filing documents. Her job did not require travel. Plaintiff commuted to her place of employment in Santa Fe via the "Park and Ride" during the entire two and one-half years she was employed with DPS.

{3} "Park and Ride" is a private bus service providing transportation to the public between Albuquerque and Santa Fe. Typically, riders boarded the "Park and Ride" at Balloon Fiesta Park in Albuquerque; however, a Department of Transportation (DOT) parking lot was temporarily used during the 2006 Balloon Fiesta. Before dawn on October 19, 2006, Plaintiff drove to and parked in the DOT parking lot for her daily commute. According to the complaint, while walking through the parking lot, Plaintiff was injured when she fell into an unlit hole that was neither clearly marked, barricaded, nor cordoned off. As a result, she received a compound fracture to her leg. DPS eventually terminated Plaintiff's employment because her injuries were deemed non-work related.

{4} Plaintiff filed a complaint against DOT alleging premises negligence. In its answer, DOT acknowledged that it held itself open to the public and had a duty to make a reasonable inspection of the premises and warn visitors, including Plaintiff, of any dangerous conditions. In addition, DOT admitted that it owed a duty to Plaintiff as a visitor to exercise ordinary care to keep the premises safe.

{5} DOT filed a motion to dismiss on the basis that the district court lacked subject matter jurisdiction of Plaintiff's tort claims. It asserted that because Plaintiff was a State employee seeking damages from the State arising out of the alleged negligence of the State while going to or coming from work, Plaintiff's exclusive remedy is a workers' compensation claim under the Act. The district court agreed and granted DOT's motion. Plaintiff appeals.


{6} Section 52-1-6(E) reads in part:

No cause of action outside the Workers' Compensation Act shall be brought by an employee or dependent against the employer or his representative, including the

[148 N.M. 905, 242 P.3d 472]

insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers' Compensation Act.

Under this section, if the Act provides benefits for a work-related injury, an employee is precluded from pursuing a negligence action against her employer. See Galles Chevrolet Co. v. Chaney, 92 N.M. 618, 620, 593 P.2d 59, 61 (1979) ("If the Workmen's Compensation Act applies, the employee's negligence action, if any, is precluded."). Thus, the question before us is whether the Act applies to Plaintiff's claim and therefore precludes her claim of premises negligence against DOT.

{7} Our review of a district court order granting a motion to dismiss for lack of subject matter jurisdiction is de novo. Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 6, 132 N.M. 207, 46 P.3d 668. Interpretation of the Act is a question of law which we also review de novo. Ortiz v. Overland Express, 2010-NMSC-021, ¶ 18, 148 N.M. 405, 237 P.3d 707 ("[W]e review issues concerning legislative intent de novo."); Espinosa v. Albuquerque Publ'g Co., 1997-NMCA-072, ¶ 7, 123 N.M. 605, 943 P.2d 1058 (stating that we are not required to defer to the district court's interpretation of a statute because statutory interpretation is a question of law).

The Act Does Not Provide Workers' Compensation Benefits to Ordinary Commuters

{8} A basic purpose of the Act is to compensate employees for injuries suffered in the course of their employment. See Rivera v. N.M. Highway & Transp. Dep't, 115 N.M. 562, 565, 855 P.2d 136, 139 (Ct.App.1993). Accordingly, the Act defines compensable injuries as those "arising out of and in the course of employment." § 52-1-19.

{9} Importantly, the Act excludes injuries suffered by employees during the ordinary commute to and from their employment. See, e.g., Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 14, 144 N.M. 782, 192 P.3d 777; Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128 N.M. 601, 995 P.2d 1043. This restriction, known as the "going and coming" rule, is codified at Section 52-1-19 in the following language:

As used in the Workers' Compensation Act, unless the context otherwise requires, "injury by accident arising out of and in the course of employment" shall include accidental injuries to workers and death resulting from accidental injury as a result of their employment and while at work in any place where their employer's business requires their presence but shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer's negligence.

{10} The going and coming rule recognizes that the relationship between the worker and the employer is suspended between the time the worker leaves his place of employment, until he returns to work. See Flores, 2008-NMCA-123, ¶ 14, 144 N.M. 782, 192 P.3d 777 ("[T]he going and coming rule exists to make everyday commuting between home and the workplace the employee's business rather than the employer's."). Because a commuting worker is subject to the same perils faced by all ordinary commuters, injuries suffered as a result of travel to and from work are noncompensable under the Act absent special circumstances. See 1 Arthur Larson, Larson's Workers' Compensation Law § 13.01 [1], at 13-3 (2008) ("[I]t is generally taken for granted that workers' compensation was not intended to protect against all the perils of [the worker's journey between home and factory]."); Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 9, 142 N.M. 583, 168 P.3d 155 (" '[A]n employee [en route] to, or returning from, his place of employment, using his own vehicle[,] is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee.' " (third alteration in original) (quoting Nabors v. Harwood Homes, Inc., 77 N.M. 406, 408, 423 P.2d 602, 603 (1967))). A principle reason for the rule is "the employee's means of transportation, as well as his route are entirely within his discretion, unfettered by any control or power of control on the part of the

[148 N.M. 906, 242 P.3d 473]

employer." Dombach v. Olkon Corp., 163 Conn. 216, 302 A.2d 270, 273 (1972).

{11} The going and coming rule is subject to several exceptions. See Dupper v. Liberty Mut. Ins. Co., 105 N.M. 503, 506, 734 P.2d 743, 746 (1987) (discussing employee premises exception); Ramirez, 2000-NMCA-011, ¶¶ 11-17, 128 N.M. 601, 995 P.2d 1043 (discussing traveling employee exception); Arias v. AAA Landscaping, 115 N.M. 239, 240-41, 849 P.2d 382, 383-84 (Ct.App.1993) (discussing the employer's conveyance exception, the special errand exception, and the dual purpose exception). DOT does not argue that Plaintiff's claim falls within one of the recognized exceptions; rather, DOT asserts that because Plaintiff alleges negligence on the part of DOT, her claim falls within the scope of Section 52-1-19. We disagree.

The Context of This Case Limits the Literal Application of Section 52-1-19

{12} The statutory expression of the going and coming rule in New Mexico bases coverage on whether the employer was negligent in causing the worker's injuries rather than on whether the accident occurred on the employer's premises. Section 52-1-19 of the Act provides that "injury by accident arising out of and in the course of employment" for which compensation is required "shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer's negligence." § 52-1-19 (emphasis added). DOT argues that under the complaint, the State is both Plaintiff's employer (through DPS) and the alleged negligent owner and operator of the parking lot (through DOT). Therefore, asserts DOT, the literal definition of "injury by accident arising out of and in the course of employment" of Section 52-1-19 applies, and Plaintiff's exclusive remedy is under and pursuant to the Act. We disagree.

{13} DOT's argument overlooks the exception in Section 52-1-19 that "injury by accident arising out of and in the course of employment" means what it describes " unless the context otherwise requires [.]" (Emphasis added.) The phrase "unless the context otherwise requires" explicitly acknowledges that certain factual situations do not fall within the literal language of Section 52-1-19. For example, in Vukovich v. St. Louis, Rocky Mountain & Pacific Co., 40 N.M. 374, 60 P.2d 356 (1936), the plaintiff...

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