Board of County Commissioners v. Vache

CATHELL, Judge. Frederick County Board of County Commissioners and Great American Insurance Company, appellants, appeal from an order entered in the Circuit Court for Frederick County. That order affirmed an award by the Maryland Workers’ Compensation Commission (the Commission) of workers’ compensation benefits to Bridget Yache, appellee, for injuries she sustained after slipping on an icy sidewalk upon returning to work from lunch on February 10,1994. We hold that because the circumstances surrounding appellee’s injuries do not fall within any exception to the going and coming rule, her injuries do not arise out of and in the course of her employment and, therefore, are not compensable under the Maryland Workers’ Compensation Act.

Accordingly, we shall reverse the trial court. I. Facts The facts in this case are not disputed. On February 10, 1994, appellee was employed by the Frederick County Board of Commissioners (employer). Parking privileges were not a part of her employment in that the employer did not provide appellee with a parking space.

The employer leased office space from the Frederick County Board of Education (BOE) inside BOE’s building. A lease between BOE and the employ ⁵³⁰ er, which was introduced as evidence, reflects that BOE agreed to maintain the area outside the building, including the removal of snow and ice. On the day in question, snowy, icy, and slippery conditions existed throughout the region because of a severe snow storm. BOE closed its offices due to the inclement weather.

Frederick County government offices, however, remained open. On the morning of February 10, appellee parked in BOE’s parking lot. Normally, she was not permitted to park there, but because BOE was closed, there were ample open spaces. Appellee left that lot during her lunch break to run some errands in her car and, upon her return, found the BOE lot full.

Appellee drove around the area to find another space, but because the public streets were piled up with snow, no street parking was available. Consequently, appellee parked in the St. John’s Catholic Church parking lot behind the BOE lot. Appellee waited at the back door of the BOE building, which was locked and for which appellee had no key, for a few minutes to see if someone might open the door. The back door was the closest door into the building from the church’s lot.

No one opened the door, so appellee decided to walk around to the front entrance of the building. To get to the front entrance, appellee had to walk on the sidewalk along Church Alley. Appellee testified that she saw ice on the Church Alley sidewalk, but that there were no other walkways to the front of the building and she could not walk on the street because cars were traveling on it. Appellee fell on the icy sidewalk and sustained injuries.

Appellee subsequently filed a workers’ compensation claim against appellants, which they contested. On March 27, 1995, the Commission issued an order finding “that [appellee] sustained an accidental injury arising out of and in the course of employment on February 10, 1994, and that the disability of [appellee] is the result of the aforesaid accidental injury.” Appellants appealed this finding to the Circuit Court for Frederick County. That court affirmed the Commission’s ⁵³¹ award on May 13, 1997. Appellants filed a timely notice of appeal to the Court of Special Appeals.

On November 4, 1997, the parties filed a Joint Petition for Writ of Certiorari before the Court of Special Appeals heard arguments in the matter. We granted the petition on January 16, 1998 to address the scope of the proximity or “special hazard” exception to the going and coming rule. Appellants present the following questions for our review: 1. Does the “going and coming rule” bar a workers’ compensation claim by a Claimant who falls on a walkway just outside her place of employment when she is going to work? 2.

Does the “proximity exception,” or “special hazards exception,” to the going and coming rule apply to a Claimant who falls on the sidewalk just outside of her place of employment, when the fall is caused by ice and snow all over the region?

II

Discussion The Maryland Workers’ Compensation Act, Maryland Code (1991 RepLVol., 1997 Supp.), sections 9-101 through 9-1201 of the Labor and Employment Article, 1 provides benefits to persons who suffer “an accidental injury that arises out of and in the course of employment.” § 9-101(b)(l). Generally speaking, injuries the employee incurs by going to or coming from work are not compensable under the act because they do not arise out of and in the course of employment. Morris v. Board of Educ., 339 Md. 374, 380 , 663 A.2d 578, 580 (1995); Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44 , 617 A.2d 572, 573-74 (1993); Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206 , 373 A.2d 613, 616 (1977); Saylor v. Black & Decker Mfg.

Co., 258 Md. 605, 607-08 , 267 A.2d 81, 83 (1970). “The reason for this rule is because getting to work is considered to be an employee’s own responsibility and ordinarily does not ⁵³² involve advancing the employer’s interests.” Morris, 339 Md. at 380 , 663 A.2d at 580 (citing Oaks v. Connors, 339 Md. 24 , 660 A.2d 423 (1995)); see also Wiley, 280 Md. at 206 , 373 A.2d at 616 . This general rule has come to be known as the “going and coming rule.” Several exceptions to the going and coming rule, however, have evolved. We described all four exceptions in Alitalia, 329 Md. at 44 , 617 A.2d at 574 , where we stated: Onto this general rule, however, the courts have engrafted several exceptions when compensation benefits may properly be granted. [1.] Thus, where the employer furnishes the employee free transportation to and from work, the employee is deemed to be on duty, and an injury sustained by the employee during such transportation arises oút of and in the course of employment. Tavel v. Bechtel Corporation, 242 Md. 299, 304 , 219 A.2d 43 (1966); Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350, 357 , 118 A.2d 486 (1955). [2.] Compensation may also be properly awarded where the employee is injured while traveling along or across a public road between two portions of the employer’s premises.

Wiley Mfg., 280 Md. at 206 , 373 A.2d 613 ; Procter[Proctor]-Silex v. DeBrick, 253 Md. 477, 482 , 252 A.2d 800 (1969). [3.] The “proximity” exception allows compensation for an injury sustained off-premises, but while the employee is exposed to a peculiar or abnormal degree to a danger which is annexed as a risk incident to the employment. Pariser Bakery v. Koontz, 239 Md. 586, 591 , 212 A.2d 324 (1965); see Md. Paper Products Co. v. Judson, 215 Md. 577, 584-588 , 139 A.2d 219 (1958). [4.] Injuries incurred while the employee travels to or from work in performing a special mission or errand for the employer are likewise compensable. Reisinger-Siehler Co. v. Perry, 165 Md. 191, 199 , 167 A. 51 (1933); see Dir. of Finance v. Alford, 270 Md. 355, 359-364 , 311 A.2d 412 (1973). The only exceptions at issue in this case are the second and third, the “premises” exception and the “proximity” or “special hazard exception.” ⁵³³ Under the premises exception, although the notion of “premises” does not necessarily include all of the property owned by the employer, it does contemplate “compensation for injuries occurring on parking lots provided for the use of the employees,” Saylor, 258 Md. at 609 , 267 A.2d at 88 , and where there is an “integral relationship between the place of injury on the employer’s property and where [the employee] worked.” Furthermore, the employee can receive compensation for injuries he or she suffers when the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursing his active duties....

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. DeBrick, 253 Md. at 482-83 , 252 A.2d at 803 (quoting 1 Larson, Workmen’s Compensation Law, § 15.14 (1968)). The principle behind this exception has been stated as: “Since ... 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.... ” Wiley, 280 Md. at 206-07 , 373 A.2d at 616 (quoting 1 Larson, Law oe Workmen’s Compensation § 15.14 (1972)). Accordingly, the premises exception can apply when the employee’s injuries occur on a parking lot maintained by the employer for the use of its employees or when the injuries occur between that employer-controlled parking lot and the physical place of employment.

Under the proximity exception, an employee can recover workers’ compensation benefits while going to and coming from work and off of the employer’s premises when the employment itself involves peculiar and abnormal exposure to a common peril which is annexed as a risk incident ⁵³⁴ to the employment, i.e., where the location of the plant is at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard which causes the injury. Pariser Bakery, 239 Md. at 591 , 212 A.2d at 327 . In Pariser Bakery , the employee, Koontz, who regularly worked the night shift, was leaving the bakery at the end of his shift at approximately 4:00 a.m. As he departed the building and was stepping from the building’s property line and onto the public sidewalk, Koontz heard a loud noise, looked to his right, and saw an object headed in his direction.

As he stepped back toward the building, the object, an out-of-control automobile, ran onto the sidewalk and knocked down a street light. This street light fell on top of and injured Koontz. Koontz sought workers’ compensation benefits, claiming that his injuries arose out of and in the course of his employment. The circuit court agreed, granting Koontz relief under the proximity exception to the going and coming rule.

On appeal, we disagreed. These injuries, we said, occurred on an ordinary sidewalk and [t]he danger which caused his injury was not a regular or frequent one to which his employment exposed him to a greater degree than was the general public. There was no evidence that he was placed near the danger by reason of his work, such as a railroad or a dock, to allow him compensation under the proximity rule. Id.

We then went on to clarify: “The gravamen of that rule is not that the employee is in close proximity to his place of employment, but rather that by reason of such proximity the employee is subjected to danger peculiarly or to an abnormal degree beyond that to which the general public was subjected.” Id. We examined the application of the proximity exception in Salomon v. Springfield State Hospital, 250 Md. 150 , 242 A.2d 126 (1967). In that case, Salomon, an employee of the hospital, was struck by another car and injured as she crossed a newly opened portion of highway on her way to the hospital. ⁵³⁵ The car struck Salomon’s car just inside the hospital grounds. Holding that the proximity exception did not apply in those circumstances, this Court noted: We have held in the past that traveling upon and crossing busy streets and highways, while it does entail some degree of danger, does not subject an employee traveling to and from work, to a greater degree of danger than he would be exposed to as a member of the general public.

Id. at 154 , 242 A.2d at 129 . See also Morris, 339 Md. at 380 , 663 A.2d at 580-81 (“[T]he hazards encountered by an employee while commuting to work are common to all workers, no matter what their job, and, hence, such risks cannot be directly attributable to a person’s particular