Burton v. Logic Software, LLC

2. All parties have been properly designated and there is no question as to misjoinder or nonjoinder of parties.

3. On the alleged date of injury, the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

4. At all relevant times, an employment relationship existed between the parties.

5. Erie Insurance was the compensation carrier on the risk.

6. All of plaintiff's medical records will be submitted as a Stipulated Exhibit.

7. All of the Industrial Commission forms and filings will be submitted as a Stipulated Exhibit.

8. Plaintiff's average weekly wage is to be determined.

9. Plaintiff's alleged date of injury is January 28, 2004.

10. The parties agree that the contested issues are: Did plaintiff suffer a compensable injury by accident in the course and scope of employment with defendant-employer and, if so, what medical and other benefits is plaintiff entitled to as a result of his alleged injury.

2. Stipulated Exhibit No. 2 — Industrial Commission forms;

3. Stipulated Exhibit No. 3 — Defendants lease for their place of business; *Page 3

4. Plaintiff's Exhibits No. 1-6 — Photographs of workplace;

5. Plaintiff's Exhibit No. 7 — Form 18M by Dr. Speers; and

6. Plaintiff's Exhibit No. 8 — Plaintiff's statement to the carrier.

2. Defendant-employer terminated plaintiff on April 30, 2004, due to poor job performance. Four other employees were terminated at the same time. After his termination, plaintiff received unemployment benefits.

3. Plaintiff returned to work earning greater wages on October 1, 2004, with Yardi Systems.

4. Defendant-employer's office was located at 1001 Navajo Drive in Raleigh, North Carolina, in a two-story brick building. The offices of defendant-employer occupied 7,200 square feet in a suite on the second floor. Defendant-employer did not own the building or the adjacent parking lot. The building and parking lot were owned and maintained by landlord Drucker and Falk, L.L.C. Defendant-employer was one of twelve to eighteen tenants occupying *Page 4 the building. Tenants included a transportation company, an electrolysis office, a masseuse, the North Carolina State Cemetery Office, and a hotel extension.

5. The parking lot adjacent to the building was for the use of the building's tenants and their customers. Both employees and customers of the tenants parked in this lot. All of the tenants in the building shared the parking lot, and there were no assigned spaces. Although a sign in the parking lot provided for the towing of unauthorized vehicles at the owner's expense, no decals or markers identifying authorized vehicles were issued. A fence separated the parking lot from the public street, but the parking lot's entrance was not gated.

6. Defendant-employer did not have exclusive control of the parking lot. Defendant-employer did not clean or maintain the parking lot. If there was any repair needed to the parking lot, defendant-employer reported this need to the landlord. If a car blocked another car, the problem was reported to the landlord. It was the responsibility of the landlord to remove the ice and snow. No employee of defendant-employer was responsible for cleaning the parking lot or clearing the parking lot of ice and snow. The lease did not grant defendant-employer any rights or control over the parking lot.

7. Plaintiff contends that the lease agreement between defendant-employer and Drucker and Falk, L.L.C., conferred to defendant-employer a certain degree of control over the parking lot. However, the Full Commission finds that the mere right of defendant-employer to use the adjacent parking lot does not constitute sufficient control over the parking lot to allow a finding that the parking lot was within defendant-employer's premises. Defendant-employer had no more control over the parking lot than any other tenant of the building. Defendant-employer did not control or maintain the parking lot and plaintiff was not exposed to any danger greater than the public in general. Moreover, the parking lot was not listed under the "Demised *Page 5

Premises" section of the lease, which delineates the actual property that defendant-employer rented from Drucker and Falk, L.L.C. Rather, the only mention of parking in the lease agreement was under the section entitled "Services by Landlord" and contained merely the language that: "Landlord shall further provide a reasonable amount of free parking in common with the other tenants, for tenant's employees and visitors." The Full Commission finds that the language regarding parking in the lease agreement between defendant-employer and Drucker and Falk, L.L.C., was insufficient to confer any control of the parking lot to defendant-employer.

8. Plaintiff's injuries did not occur on defendant-employer's premises. Plaintiff's injuries occurred on property that was controlled exclusively by the landlord, Drucker and Falk, L.L.C.

2. A limited exception to the "coming and going" rule applies where an employee is injured when going to or coming from work on the employer's premises. Royster, 343 N.C. at 281, 470 S.E. 2d at 31. Although defendant-employer's lease provides for its use of the parking lot, the evidence of record is that the parking lot was a common area in which all tenants had access. The Court of Appeals held in Barham that where an employer has "no responsibility for the upkeep or maintenance" of the premises where an injury occurred, and had "no obligation or authority under its lease" to take action regarding the condition of the premises, then the premises in question are not sufficiently under the control of the employer to permit the conclusion that the premises constituted a part of the employment premises. Barham, 300 N.C. at 333,266 S.E.2d at 679. In the instant case, the evidence of record shows that defendant-employer had no responsibility for the upkeep or maintenance of the parking lot, which includes the removal of ice, and had no obligation or authority under its lease to take action regarding the accumulation of ice in the parking lot. Id. Plaintiff has failed to show that the parking lot was sufficiently under the control of the defendant-employer to permit the conclusion that the premises constituted a part of the employment premises. Id. Because plaintiff's injuries did not occur on the employer's premises, plaintiff is not entitled to the limited exception to the "coming and going" rule that applies when an employee is injured when going to or coming from work on the employer's premises. Royster, 343 N.C. at 281, 470 S.E. 2d at 31. *Page 7

3. Based on the totality of the evidence of record, plaintiff did not sustain an injury by accident while in the course and scope of his employment with defendants. N.C. Gen. Stat. § 97-2(6).

2. Each side shall bear its own costs.

This 23^rd day of April 2007.

S/__________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/__________________________ BERNADINE S. BALLANCE COMMISSIONER

DISSENTING:

S/__________________________ CHRISTOPHER SCOTT COMMISSIONER

I respectfully dissent from the Opinion and Award of the majority in this matter. Although an injury sustained by an employee while going to or coming from work does not arise out of and in the course of employment, a limited exception to the "coming and going" rule applies where an employee is injured when going to or coming from work on the employer's premises. Royster v. Culp, Inc., 343 N.C. 279, 281,470 S.E. 2d 30, 31 (1996). The majority in the present case erred in failing to apply the premises exception to the coming and going rule in this matter, thereby creating two disparate classes of employees: (1) those whose employers own the premises in which they work; and (2) those whose employers lease the premises in which they work.

In matters such as the present case, where an employer's premises is not, for the purposes of the Workers' Compensation Act, extended to include parking provided to an employee merely because the employer leased its office or work space, the employee is denied the same protection he would be granted had his employer actually owned the premises on which the injury occurred. An employee does, of course, have a right to seek a civil remedy against the actual owner of the premises, but this remedy does not extend the same protection or benefits that the Workers' Compensation Act was designed to provide to injured employees.

In the present case, the employer was granted use of the parking lot by virtue of its lease. The undersigned would find that an employer who leases its property has a duty to maintain that property for the safety of its employees. The employer in the present case should have taken *Page 9 steps to remove the unsafe ice that had accumulated in the parking lot or, at the least, taken steps to have the landlord remedy the unsafe situation. The employer's duty to provide safe parking for its employees is a logical extension of the case law.

As the North Carolina Supreme Court stated in Johnson v. AshevilleHosiery, Co., 199 N.C. 38, 153 S.E. 591 (1930), the Worker's Compensation Act is to be liberally construed to effectuate the broad intent of the Act to provide compensation for employees sustaining an injury arising out of and in the course of the employment, and no technical or strained construction should be given to defeat this purpose. Id. Moreover, it is well settled that "the evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Doggett v. South Atl.Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval inAdams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).

For these reasons, I respectfully dissent.

This 20th day of June 2007.

S/_______________________ CHRISTOPHER SCOTT COMMISSIONER