Opinion
CLAIM NO. E216857
OPINION FILED JULY 22, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SCOTT G. LAUCK, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the administrative law judge on September 27, 1993. In that opinion and order, the administrative law judge found that the claimant sustained an injury arising out of her employment. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Therefore, we find that the administrative law judge's decision must be reversed.
The claimant contends that she sustained a compensable injury to her left knee on January 13, 1992. At the time, she was working as a part-time sales clerk at respondent's store at Park Plaza Mall in Little Rock. She finished her work and clocked out at 9:06 p.m. After leaving the store through an exit designated for the use of employees only, she walked across the mall parking lot to her automobile. As she was getting into her automobile, she stepped into a hole on the grassy median next to her automobile, causing her to fall and injure her left knee.
For an employee's injury to be compensable under the Arkansas Workers' Compensation Law, she must prove that she sustained an injury "arising out of and in the course of employment." Ark. Code Ann. § 11-9-401 (1987). The phrase "`[a]rising out of the employment' refers to the origin or cause of the accident," so the employee must establish that a causal connection exists between the injury and his employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs "in the course of employment" when it occurs "within the time and space boundaries of the employment, while the employee is carrying out the employer's purpose, or advancing the employer's interests directly or indirectly." City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).
As a general rule, injuries sustained while an employee is going or coming from work are not compensable. Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987); City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 852 (1982). Such injuries are not deemed to arise out of and in the course of employment. Mason v. Lauck, 232 Ark. App. 891, 340 S.W.2d 575 (1960); American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). The rationale for the going and coming rule is based on the fact that all persons, including employees, are subject to the recognized hazards of travel to and from work. City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). Consequently, when traveling to and from the regular place of employment, the employee is not exposed to risks attributable to the employment. Instead, the employee is only exposed to risks which are common to all members of the general public.
Nevertheless, there are a number of exceptions to the going and coming rule, and one of these exceptions is the "premises exception." Under the premises exception, an injury sustained while the employee is coming to or returning from his place of employment may be compensable if it occurs after the employee has reached a place so close to the employer's premises as to be considered a part thereof.Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W.2d 697 (1960); Bales v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 187 S.W.2d 321 (1945). The premises exception to the going and coming rule recognizes that an employee is entitled to a reasonable time to leave his employer's premises and that an injury suffered within that interval may arise out of and in the course of employment. Davis, supra; Johnson v. Clark, 230 Ark. 275, 322 S.W.2d 72 (1959); Bales, supra. However, the basis of the premises exception is the existence of a causal connection between the employment and the particular risk. Wright v. Ben M. Hogan, 250 Ark. 960, 468 S.W.2d 233 (1971). Consequently, even where the claim falls within the premises exception, the claimant still must establish a causal relationship between the employment and the injury by showing that the injury was a natural and probable consequence or incident of the employment and a natural result of one of its risks.Woodward v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990); Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983). Injuries sustained on parking lots may fall under the premises exception if there is a sufficient causal connection between the risk of the employment and the injury. Davis, supra; see also, Woodward v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990). In determining whether an injury that occurs on a parking area falls under the premises exception, relevant factors to consider include the employer's control over the parking area, the connection between the injury and a condition of the employment, and the accessibility of the area to the general public. See, Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983); Wright v. Ben M. Hogan, 250 Ark. 960, 468 S.W.2d 233 (1971); Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W.2d 697 (1960);Johnson v. Clark, 230 Ark. 275, 322 S.W.2d 72 (1959);Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W.2d 757 (1976).
In the claim presently before the Commission, Walter Grammer, the store manager, testified that the respondent does not own the parking lot, and he testified that the respondent does not control the lot. Instead, the mall controls the lot. Mr. Grammer also testified that the respondent does not pay any fees for maintenance of the lot or for landscaping. In addition, he testified that the lot is for the use of customers as well as the employees of all mall merchants. He testified that the respondent does not require employees to park in any particular area. However, he testified that the mall asks that employees park in certain areas so that customers have access to the parking spaces closest to the doors, and he testified that the respondent asks employees to park in these areas on behalf of the mall.
In this regard, the claimant and another former employee of the respondent, Rae Ann Moore, both testified that they were instructed during employee orientation to park in the lot where the injury occurred, and they testified that they only parked in this lot because they were employees. Ms. Moore also testified that she recalled a sign being in this area at one time that indicated it was a parking area for mall employees. Ellen Everett is an employee of the respondent who conducted the claimant's orientation, and she testified that employees are not required to park in any certain area. She testified that employees can park anywhere on the lot, and she testified that she had parked all over the lot. She admitted that she showed the parking area where the injury occurred to new employees during employee orientation at the same time that she was showing them the employee entrance/exit. However, she testified that she did so only because that parking area was more convenient to the employee entrance/exit.
After weighing all of the evidence impartially, we find that the facts of this case do not fall within the premises exception. As the Arkansas Supreme Court has recognized, "the basis for the premises rule is the existence of a causal connection between the employment and the particular risk, as when the employees must cross railroad tracks near the plant entrance." Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971). Furthermore, this Commission has recently found that an employee who was injured after she parked her car on a public street and was walking to her place of employment before work did not sustain an injury arising out of and in the course of her employment because she was only exposed to those risks to which the public as a whole is exposed. Joanne Wentworth v. Sparks Regional Medical Center, Full Workers' Compensation Commission, Jan. 21, 1994 (Claim No. E219812). The evidence establishes that there is little difference between the parking lot at Park Plaza Mall and a public street. In fact, the lot is actually intertwined with public streets. Moreover, access to the lot is open to all members of the general public, without restriction, and all members of the general public are subject to essentially the same risks while on the parking lot as they would be on a public street. As we found in Wentworth, supra, the employee of a business on a city street is not covered by the premises exception after she leaves the facility of the employer and joins the general public to begin her journey home, subject only to the risks common to all members of the general public. The situation is no different in the present claim. When the claimant left the facility of the respondent, she joined the general public to begin her journey home, subject only to the risks common to all members of the general public. Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the premises exception is not applicable to the facts of this claim, and we find that the going and coming rule bars the claim. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment, and we find that the administrative law judge's decision must be reversed. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.