Compton v. SAIF Corp.
Compton v. SAIF Corp.
Opinion of the Court
Claimant
We take the following facts from the administrative law judge’s (ALJ) findings, as modified by the board, and the record. Claimant worked for employer, a fraternal organization, as a bartender. On July 5, 2001, claimant took a cab to work. The street on the south side of employer’s building was congested with traffic, and the cab pulled into the parking lot of a restaurant, which is to the east of the building’s parking lot. Claimant got out of the cab through the passenger-side door of the back seat. He walked behind the cab and out of the parking lot. Claimant rounded a comer from the restaurant parking lot onto a public sidewalk that rims along the south side of employer’s parking lot and building. Claimant walked several steps up the sidewalk toward the lodge. He reached at least the second expansion joint counting from the parking-lot comer. He then fell down on the sidewalk. There was no hazard or defect in the sidewalk. As a result of the fall, claimant suffered a fractured knee.
SAIF, employer’s insurer, denied the claim. The ALJ determined that the injury was not compensable because it did not arise out of claimant’s employment. The board affirmed, albeit using somewhat different reasoning. The board concluded that the claim was not compensable because the injury did not occur in the course of claimant’s employment and that it “did not arise out of a risk of the employment [.]” Claimant seeks judicial review of the board’s order.
To be compensable, an injury must “arise [ ] out of and in the course of employment.” ORS 656.005(7)(a). The Supreme Court has said that the “arising out of’ and “in the course of’ tests are two prongs of a single inquiry: whether
“although the ‘arising out of and ‘in the course of prongs provide guidance, the unitary work-connection test does not supply a mechanical formula for determining whether an injury is compensable. We evaluate those factors in each case to determine whether the circumstances of a claimant’s injuries are sufficiently connected to employment to be compensable.”
Robinson, 331 Or at 185.
Injuries sustained while an employee is going to and coming from the employee’s regular place of employment generally are not considered to have occurred in the course of employment. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994). One exception to the “going and coming” rule is the “parking lot” rule: An injury sustained on an employer’s premises while an employee is proceeding to or from work is considered to have occurred in the course of employment. Id. at 366-67. The parking lot exception applies to any area over which an employer exercises some control. See Cope v. West American Ins. Co., 309 Or 232, 239, 785 P2d 1050 (1990) (“[W]hen an employee traveling to or from work
The board concluded that claimant’s injury did not fall within the parking lot exception to the “going and coming” rule, based on the following reasoning:
“[Tjhere is no evidence that the employer ever maintained the public sidewalk where claimant fell, it excluded no one from the sidewalk, and it exercised no control whatsoever over the area. Thus, although a municipal ordinance assigned some responsibility for maintaining the injury site[], *** we conclude that there is no evidence of ‘employer control’ over the injury site here and McTaggart is distinguishable on its material facts. Under these circumstances, we conclude that the ‘going and coming’ rule applies (without exception) and claimant’s injury on the way to work did not occur in the course of his employment.”
We review the board’s conclusion as a matter of law, Henderson v. S.D. Deacon Corp., 127 Or App 333, 337, 874 P2d 76 (1994), and agree that claimant’s injury did not occur in the course of employment. It is true, as claimant asserts, that, at the time of his fall, a Seaside municipal ordinance provided that it was
“the duty of all owners of land adjoining any street or road in Seaside to reconstruct, repair and maintain in good order, the sidewalks in front of their land.”
Seaside General Regulation § 38. Moreover, we have said that the parking lot exception might apply to an area over which an employer could exercise control. McTaggart, 170 Or App at 496. Nevertheless, although an obligation to maintain a public sidewalk in good order shows a right of control, such control is limited by its terms to keeping the sidewalk in a
Here, the board expressly found that there was no hazard that would have triggered employer’s obligation to exercise control of the public sidewalk by performing maintenance or repairs. Further, there is no evidence that employer ever exercised control over the sidewalk. Neither the Supreme Court nor this court has extended the parking lot exception to circumstances such as the ones existing here. Cf. Cope, 309 Or at 240 (“When an employee is injured on a public sidewalk over which the employer has no control, and on which there are no employer-created hazards, the connection between the injury and the employment is insufficient to make the injury compensable.”). We conclude that, in the absence of a connection between claimant’s injury and employer’s duty to maintain the public sidewalk in good order, employer’s limited right of control over the condition of the sidewalk was insufficient to bring the sidewalk within the purview of the parking lot exception to the going and coming rule. Cf. Montgomery Ward v. Malinen, 71 Or App 457, 692 P2d 694 (1984) (claimant’s injury occurred in course of employment when she fell on icy public sidewalk that employer was required to maintain).
Therefore, we conclude that claimant’s injury did not occur in the corase of his employment. For that reason, we need not address the board’s conclusion that claimant’s injury also did not arise out of his employment.
Affirmed.
Claimant died of unrelated causes, and his wife carried out the claim. We refer to her throughout the opinion as claimant.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.