Rohrs v. State Acc. Ins. Fund

• Decision Date: 29 November 1976
• Citation: 556 P.2d 714,27 Or.App. 505
• Parties: In the Matter of the Compensation of JoAnn ROHRS, Claimant, Appellant, v. STATE ACCIDENT INSURANCE FUND, Respondent.
• Court: Oregon Court of Appeals

Page 714

556 P.2d 714

27 Or.App. 505

In the Matter of the Compensation of JoAnn ROHRS, Claimant, Appellant, v. STATE ACCIDENT INSURANCE FUND, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Sept. 22, 1976.

Decided Nov. 29, 1976.

Richard O. Nesting, Portland, argued the cause for appellant. On the brief were Ralph C. Barker and Buss, Leichner, Barker & Nesting, Portland.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

THORNTON, Judge.

Claimant appeals a circuit court ruling which affirmed an order of the Workmen's Compensation Board denying compensation to claimant. The sole issue is whether claimant's injury arose out of and in the course of her employment as required by the Workmen's Compensation Law.

The evidence in this case was admitted on the stipulation of counsel. Claimant, a restaurant waitress, suffered a severe concussion with cervical strain and myositis when she slipped and fell while approaching her automobile following the end of her shift. The employer's restaurant was situated in the Georgia-Pacific Building (Building) in downtown Portland. The automobile was located on the third or fourth floor of the Georgia-Pacific Garage (Garage), which is located across the street from the Building. The Building and the Garage are linked by an underground tunnel which lies under Southwest Fourth Avenue. City Center Parking, Inc. operates the parking concession in the Garage.

The stipulated evidence indicates that claimant's employer did not designate parking areas for employes and did not reimburse parking expenses, but that employes generally made a practice of parking in the Garage for convenience and safety reasons and the employer's manager recommended parking in the Garage.

The relationship between the Garage and the employer's landlord is not explained in the stipulation, except to the extent that the parties agree the Garage is operated by City Center Parking, Inc., as a concession.

The general rule is that in the absence of special circumstances an employe injured while going to or coming from work is excluded from the benefits of the Workmen's Compensation Act. Davis v. SAIF, 15 Or.App. 405, 515 P.2d 1333 (1973). Claimant advances two exceptions to the going and coming rule which she contends are applicable here.

First, claimant advances what may be termed the 'parking lot' rule. The parking lot rule is expressed by Larson as follows:

'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. Thus, if the owner of the building in which the employee works provides a parking lot for the convenience of all his tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the rule is applicable. * * *' 1 Larson, Workmen's Compensation Law 4--38, 4--41 to 4--46, § 15.41 (1972).

Claimant relies on the cases cited by Larson to support compensability in this case. With one possible exception the cited cases involve either an employer providing a parking area as an incident of employment, ¹ or, where the employer leases his business premises from a lessor, the lessor has provided a parking area for the convenience of employes and customers of the leased premises. ² 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 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 oganization to allow teachers to park in their lot adjacent to the school.

In this case no evidence was introduced on the issue of whether and to what extent the employer or the lessor had a right, either customary or legal, to use the Garage. The use of the Garage by employes was not treated as an incident of employment by the employer or...