Rambo v. International Dry Wall Co.

Thompson, J., delivered the opinion of the Court. ⁶⁹⁴ This is an appeal from a judgment of the Circuit Court for Montgomery County denying Jack B. Rambo, appellant, compensation for injuries received as an employee of International Dry Wall Co., Inc., appellee. The Workmen’s Compensation Commission had awarded compensation. The facts were the subject of a stipulation. On March 23, 1977, the appellant was injured while on his way to lunch as a passenger in an automobile operated by a co-worker.

The car struck a manhole cover which protruded approximately 4 to 6 inches above the partially paved surface of the road. Appellant was leaving his work site, which was located about 400 feet from the manhole cover, on the only road to and from the work site. The developer of the subdivision, Columbia Credit Company, Inc. (Columbia), allowed use of portions of the road by residents and construction workers, and had offered it for dedication, but that portion of the road where the accident occurred had not been accepted by Montgomery County, presumably because it was still under construction. The road was bordered by several houses, some of which were finished and occupied, and others which were in various stages of construction.

The appellee, the appellant’s employer, was a subcontractor of Columbia. The Workmen’s Compensation Act, Md. Code, Art. 101, § 15 provides in part: "Every employer . . . shall pay or provide . . . compensation . . . for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment. . .” Yet the established rule is that injuries sustained while an employee is going to or coming from his place of work are not covered under the Act. Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206 , 373 A.2d 613, 616 (1977).

There are, however, exceptions to the going and coming rule and we think the proximity exception applies here. In Wiley, supra, the Court of Appeals said: "Succinctly stated, the proximity rule is identified with those cases involving accidents which occur at ⁶⁹⁵ a point where the employee is within range of dangers peculiarly associated with the employment. 1 Larson, [Law of Workmen’s Compensation] at § 15.00. This rule, therefore, has two vital components. 'The first is the presence of a special hazard at the particular off-premises point. The second is the close association of the access route with the premises, so far as going and coming are concerned.’ Id. at § 15.13.” Id. at 208. 1 The appellee argues that as the road where the accident occurred was open to the members of the general public who might visit the homes on the street, the manhole cover in the road was a hazard to which the general public was subjected, and therefore was not a special hazard related to the job.

It cites two out of state cases to show that "open to the public” can include private property. The cases are not compensation cases and we fail to see their relevance. Earlier Maryland cases rejecting the application of the proximity rule were probably not cited because of the excellent analysis by the Court of Appeals in Wiley, supra: "Unquestionably, this case is readily distinguishable from those prior Maryland cases in which application of the proximity rule was rejected. As we indicated earlier, in Md. Paper Products Co. v. Judson, 215 Md. 577 , the employee was struck while crossing the street; in Salomon v. Springfield Hospital, 250 Md. 150 , the employee’s car was struck while crossing a public highway; in Pariser Bakery v. Koontz, 239 Md 586, the employee was struck by a careening automobile on a public sidewalk; and in Stoskin v. Bd. of Educ.

Mont. Co., 11 Md. App. 355 ; the employee was injured as she alighted from an ⁶⁹⁶ automobile on a public street. As we have indicated, the proximity rule contains two elements: the presence of a special hazard at the particular off-premises point and the close association of the access route with the premises in respect to the 'going and coming.’ What was lacking in the prior Maryland cases, rejecting application of the proximity rule, was the 'special hazard’ component. In none of those cases was there peculiar and abnormal exposure to a common peril beyond that to which the general public was subjected.” 280 Md. at 215 .

We do not think in the instant case that the general public was exposed to the same perils as the appellant because: (1) the road was the only means of entrance and exit to the place at which the employees of the appellee were working; (2) the construction of the road was not completed and thus the only persons likely to be