Tedford v. Stouffer's Northland Inn, Docket No. 50455

• Citation: 106 Mich.App. 493,308 N.W.2d 254
• Decision Date: 20 May 1981
• Docket Number: Docket No. 50455
• Parties: Mary TEDFORD, Plaintiff-Appellee, v. STOUFFER'S NORTHLAND INN and Employers' Mutual Liability Insurance Company of Wisconsin, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 254

308 N.W.2d 254

106 Mich.App. 493

Mary TEDFORD, Plaintiff-Appellee, v. STOUFFER'S NORTHLAND INN and Employers' Mutual Liability

Insurance Company of Wisconsin, Defendants-Appellants.

Docket No. 50455.

Court of Appeals of Michigan.

May 20, 1981.

Released for Publication July 24, 1981.

George E. Ganos, Taylor, for defendants-appellants.

Jeffrey N. Shillman, Southfield, for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and SULLIVAN, ^*JJ.

SULLIVAN, Judge.

This matter comes before us pursuant to an order of the Supreme Court remanding the case to this Court in lieu of leave to appeal, 408 Mich. 854 (1980).

Defendant employer and its insurance carrier appeal from the decision of the Worker's Compensation Appeal Board awarding compensation to plaintiff for a slip and fall injury occurring in a parking lot between the employer's premises and a public bus stop.

On October 25, 1970, plaintiff, Mary Tedford, was employed as a maid for Stouffer's Northland Inn. At about 6:00 a. m. that day, she had just gotten off a bus and was walking across a large parking lot toward the hotel. On the way, she fell on some broken bricks near a drive-in bank. Although the parking lot was not a part of the employer's premises, and sidewalks were available, the route through the parking lot provided the shortest distance to the hotel. The fall necessitated an operation on and continuing medical treatment of her right ankle. Mrs. Tedford is in pain when she walks and is no longer able to work.

On October 29, 1976, an Administrative Law Judge denied compensation, holding that plaintiff's injury did not arise out of and in the course of her employment. The WCAB reversed on April 19, 1979. On October 15, 1979, a panel of this Court denied leave to appeal. On March 6, 1980, the Supreme Court reversed that decision and remanded the case to the Court of Appeals in lieu of leave to appeal.

Appellants raise several issues on appeal. However, our conclusion that plaintiff's injury did not arise out of and in the course of her employment is dispositive of the case.

Compensation under the Worker's Disability Compensation Act is limited to employees receiving "personal injury arising out of and in the course of" their employment. M.C.L. § 418.301(1); M.S.A. § 17.237 (301)(1). This rule is ameliorated by the "coming and going" provision of M.C.L. § 418.301(2); M.S.A. § 17.237(301)(2), which states:

"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."

The subsection was added to the act by 1954 P.A. 175.

Literally applied, the statute requires that the injury occur on the employer's premises. However, the meaning of the word "premises" as a limitation has gradually been eroded by case law. In interpreting the coming and going rule below, the WCAB relied on Lasiewicki v. Tusco Products Co., 372 Mich. 125, 125 N.W.2d 479 (1963), and Fischer v. Lincoln Tool & Die Co., 37 Mich.App. 198, 194 N.W.2d 476 (1971).

In Lasiewicki, the plaintiff was injured after slipping and falling on ice in a parking area used by employees. The area was publicly owned, lying between the street and the employer's building, but it was maintained by the employer. In affirming an award of compensation, the Court held that inasmuch as the area was used and maintained by the employer, it constituted "premises" within the meaning of the statute. Id., 372 Mich. 130-131, 125 N.W.2d 479. The Court relied on Hills v. Blair, 182 Mich. 20, 27, 148 N.W. 243 (1914):

" 'In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act.' (Emphasis supplied.)" 372 Mich. 125, 131, 125 N.W.2d 479.

Hills v. Blair was decided well before the 1954 amendment. Although the language of the opinion refused to consider the premises test as conclusive, it was viewed as a relevant factor. Interestingly, the case denied compensation to the widow of a worker who was killed while on his employer's premises, a train line running from his workplace. The worker had left the sphere of his employment and was on his way home for lunch. The Court relied on the fact that the decedent was not under the employer's direction or control when the accident took place, and, in fact, could have proceeded home by a safer route. 182 Mich. 20, 28-29, 148 N.W. 243.

The "zones, environments and hazards" principle was also utilized in Fischer v. Lincoln Tool & Die, supra. In Fischer, we affirmed an award of compensation to an employee injured on an icy sidewalk adjacent to his place of employment. The injury occurred after the employee had parked his car on the street on his way to work. The employer provided no alternative parking area. The Court considered Lasiewicki and determined the sidewalk to be part of the employer's premises. Id., 37 Mich.App. 202, 194 N.W.2d 476. The opinion went on to state:

"From the above, we can conclude that an employee is protected by the act when he is within said 'zone, environments, and hazards', while arriving at, departing from, or during the time of his employment by travelling his usual, customary and direct route." 37 Mich.App. 198, 203, 194 N.W.2d 476.

In the instant case, the WCAB applied the "zones, environments and hazards" test in determining that plaintiff was on the hotel's premises, noting that she was travelling her usual, customary and direct route from the bus stop to her place of employment. 1979 WCABO 967, 971.

Other cases have extended the premises rule to parking lots and adjacent areas. In Jean v. Chrysler Corp., 2 Mich.App. 564, 140 N.W.2d 756 (1966), compensation was awarded to the widow of an employee killed while crossing a public highway between his employer's parking lot and his place of work. The case is representative of the increasingly liberal interpretation given to the premises rule.

"Defendant in its brief states an ingenious hypothetical situation as a counter to the decision of the appeal board: assume two employees had left the actual premises of the employer and were crossing the public highway. Assume further that one of these employees was going to catch a bus on the corner of the highway, the other was going to a parking lot on the far side of the street. The parking lot was owned by the employer. Assume further that both employees were struck by the same automobile and both injured. Can it be said that under these circumstances that employee A, the one who was catching the bus, suffered a noncompensable injury while employee B, who was going to the parking lot to get his car, suffered a compensable one?

"We could, of course, say 'this is not the case before us' and utilize the old saw, 'that which is not before us we do not decide.' Instead, we prefer to utilize the considerably older saw: 'Sufficient unto the day is the evil thereof,' appending, however, this admonition: no statute is static; it must remain constantly viable to meet new challenges placed to it. Recovery in a proper case should not be suppressed because of conjectural posture which may never arise and which, if it does, will be decided in the light of then-existing law." (Footnote omitted.) 2 Mich.App. 564, 571-572, 140 N.W.2d 756.

See also Adair v. Metropolitan Building Co., 38 Mich.App. 393, 196 N.W.2d 335 (1972).

Plaintiff seeks a further relaxation of the premises limitation. The present situation is otherwise distinguishable from the earlier cases. There is no claim here that defendant owned, leased or maintained the parking lot where the injury took place. Defendant had no control over the route Mrs. Tedford walked from the bus stop or, for that matter, over where the bus stop itself was located. The injury did not take place while Mrs. Tedford traversed between two separate areas under the hotel's control.

Plaintiff argues that Fischer is controlling. The claimant in Fischer was injured on a public sidewalk while walking to work after parking his car on a public street. The employer had no control or authority over the street or sidewalk. The Court compared the situation with that in Jean v. Chrysler Corp., supra, and concluded that it would be poor public policy to hold liable an employer who provides an employee parking lot while relieving from liability a less concerned employer. 37 Mich.App. 198, 202-203, 194 N.W.2d 476.

Here, plaintiff walked from a public bus stop instead of from an automobile parked on a nearby public street. Plaintiff contends that it would be inconsistent to favor employees who drive to work over those who utilize public transportation. However, t...