Sparrow v. Louis Dreyfus Corp.

Moore, J., delivered the opinion of the Court. Appellant, Colie J. Sparrow, challenges a judgment of the Court of Common Pleas of Baltimore City which affirmed an order of the Workmen’s Compensation Commission denying his claim for an injury sustained while returning to work from lunch. For the reasons stated, we reverse. I The facts are largely undisputed.

Appellant was employed as a millwright by the Louis Dreyfus Corporation ("Dreyfus”) at its export grain elevator on Pier 2, Port Covington. On April 19, 1979, at approximately 12:50 p.m., he was returning from lunch with three other Dreyfus employees. During the lunch hour, which began at noon, they had gone off the employer’s premises to a nearby restaurant. They rode in a pickup truck which was owned and driven by one of the employees, Raymond Brown.

Dreyfus personnel were permitted to have lunch away from the plant and many did so. Because there was room in the cab of the pickup for only three passengers, the appellant rode in the back of the open truck. Testimony elicited before the Commission and the trial court revealed that the Dreyfus facility could be reached by either of two roads owned by the "Chessie” Railroad System which branched off from a common road. The "front” road was paved and in good condition.

It led to the front of the Dreyfus facility where there was a parking lot. A Dreyfus manager testified that the "bulk” of the employees used the front road. The "back” road was gravel (not paved) and was described by Raymond Brown as "deplorable.” It was used, according to the manager, by about 10% of Dreyfus employees. There was also a parking area in the back of the grain elevator. ⁵⁶⁶ The back road was also used by several other companies in the vicinity.

Both roads, however, at the time of appellant’s injury, were posted "No Trespassing” and were policed by the railroad. Brown also testified that "[a]ny car with no business there is basically not allowed.” (After the accident, Dreyfus repaired the road though it was Chessie System property.) Returning to work after lunch at 12:50 p.m., Raymond Brown took the back road because the front road, which he had used on the way to the restaurant, was blocked by a freight train and they would have been delayed about forty-five minutes. 1 The truck, travelling at a speed of "between ten and twenty” miles per hour, hit a large pothole which caused the claimant to be tossed about in the truck, sustaining a back injury. The Commission, by Order dated July 17,1979, found that the appellant did not sustain an accidental injury arising out of and in the course of his employment. The trial court affirmed, holding that appellant did not come within the "proximity” or "special hazard” exception to the "going and coming” rule.

II As a general proposition, an injury sustained by an employee going to or returning from his place of employment is not an injury arising out of and in the course of employment and therefore is not compensable under the Workmen’s Compensation Act. This is the "going and coming” rule. One exception 2 to the rule is the "proximity” or "special hazard” rule which permits recovery for an injury which, although sustained off the employer’s premises, is viewed as within the "range of dangers peculiarly associated with the employ ⁵⁶⁷ ment.” Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 208 , 373 A.2d 613, 617 (1977), affirming 30 Md. App. 87 (1976). Writing for the Court of Appeals in Wiley, Judge Levine pointed out that this exception has two "vital components,” quoting from 1 Larson, Law on Workmen’s Compensation § 15.13: "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.” Wiley, supra, 280 Md. at 208 , 373 A.2d at 617 . The Court went on to define "special hazard” as "peculiar and abnormal exposure to a common peril beyond that to which the general public [is] subjected.” Id. at 215 , 373 A.2d at 621 . We think the proximity exception is applicable here. The crater-like pothole, jokingly described in the testimony as "a lake” when it rained, was a hazard to employees using it beyond that to which the general public was exposed.

This was a private road, located on private property of the railroad, policed by the railroad, from which the public was excluded. Its use by employees was permitted. On April 19, 1979 at 12:50 p.m. it was the only means of entrance to the place of employment without substantial delay because the front road was blocked by a train. As Brown, the driver, testified, "[i]f one [road] is blocked you have to use the other one, or be late”; and as a result, their pay would be "docked.” In our judgment, there is a striking parallel between the instant case and the case of Rambo v. International Dry Wall Co., Inc., 44 Md. App. 693 , 410 A.2d 627 , cert. denied, 287 Md.