Cleveland v. FOOD LION, LLC 0578

600 S.E.2d 138, 43 Va. App. 514, 2004 Va. App. LEXIS 375
CourtCourt of Appeals of Virginia
DecidedAugust 3, 2004
Docket2615034
StatusPublished
Cited by14 cases

This text of 600 S.E.2d 138 (Cleveland v. FOOD LION, LLC 0578) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleveland v. FOOD LION, LLC 0578, 600 S.E.2d 138, 43 Va. App. 514, 2004 Va. App. LEXIS 375 (Va. Ct. App. 2004).

Opinions

FITZPATRICK, Chief Judge.

Donna Cleveland (claimant) contends the Workers’ Compensation Commission (commission) erred in finding that her accident of June 5, 2002 did not arise out of her employment with Food Lion (employer). Finding no error, we affirm the commission’s decision.

I. FACTS

We view the evidence in the light most favorable to the employer, who prevailed below. See Westmoreland Coal v. Russell, 31 Va.App. 16, 20, 520 S.E.2d 839, 841 (1999). The commission’s factual findings are conclusive and binding on this Court when those findings are based on credible evidence. See James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989), and Code § 65.2-706.

Employer was one of five stores located in a strip mall that used a common parking area.1 Employer was not responsible [517]*517for the maintenance of the lot, but did collect shopping carts from several “corrals” or collection points located in the lot. Each corral occupied an area approximately the size of one parking place. Employees did not have a designated place to park and were allowed to park anywhere in the lot. They were asked to leave the spaces near the store for customer use. The parking lot was separated from the stores in the strip mall by traffic lanes that allowed ingress and egress for all the stores. A storm drain surrounded by concrete was embedded in the asphalt of the parking lot at the edge of the traffic lanes and at the end of the aisle between rows of parking places.

On June 5, 2002, claimant, a front-end worker for employer, parked her car in the parking lot and walked toward the store entrance to begin her shift. As She neared the store, it began to rain and she ran toward the store. As she started to cross the traffic lane in front of the store, she tripped on gravel surrounding the storm drainage grate and injured her knee. The extent of her injuries and her period of disability are not at issue in this appeal.

The deputy commissioner found that:

the conditions of the lot in conjunction with the claimant’s hastening as a result of the weather caused her injury. Nonetheless, she was in an area that was available to the customers and employees of all the tenants of the shopping [518]*518center. This area cannot reasonably be considered an extension of the employer’s premises.

Claimant appealed to the commission, and they agreed:

[Claimant] fell as she was about to enter a traffic lane in the parking lot. The lot was provided for the use of employees and customers of at least five stores. At the time of her fall, she was a considerable distance from any of the stores. On the facts of this case, we find that the site of injury by accident was not in such close proximity to the building that it was “in effect” a part of the employer’s premises.

Claimant appealed that decision.

II.

Appellant contends the commission erred in finding her accident did not arise out of her employment. She argues that the parking lot was part of the employer’s premises for the purpose of Workers’ Compensation Act coverage. Credible evidence supports the commission’s finding that the parking lot was not part of the employer’s “extended premises.”

The question of “[w]hether an accident arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court.” Plumb Rite Plumbing Service v. Barbour, 8 Va.App. 482, 483, 382 S.E.2d 305, 305 (1989). An injury arises out of the employment where “[t]here is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938).

As a general rule, “an employee going to or from the place where [her] work is to be performed is not engaged in performing any service growing out of and incidental to [her] employment.” Kendrick v. Nationwide Homes, Inc., 4 Va.App. 189, 190, 355 S.E.2d 347, 347 (1987) (quoting Boyd’s Roofing Co. v. Lewis, 1 Va.App. 93, 94, 335 S.E.2d 281, 282 (1985)). Thus, an injury sustained while traveling to or from work is generally not compensable. Id. at 190-91, 355 [519]*519S.E.2d at 347. An accidental injury sustained when the employee is “going to” work does not arise “in the course of’ the employment simply because the employee at that time and place is not yet “on the job.” There are, however, three exceptions to this rule: (1) where the means of transportation used to go to and from work is provided by the employer or the employee’s travel time is paid for or included in wages; (2) where the way used is the sole means of ingress and egress or is constructed by the employer; and (3) where the employee is charged with some duty or task connected to his employment while on his way to or from work. Id. at 191, 355 S.E.2d at 347-48.

Sentara Leigh Hospital v. Nichols, 13 Va.App. 630, 636, 414 S.E.2d 426, 429 (1992). See also Blaustein v. Mitre Corporation, 36 Va.App. 344, 550 S.E.2d 336 (2001), and Kendrick, 4 Va.App. 189, 355 S.E.2d 347.

The determination that a parking lot, neither owned nor controlled by employer, is part of the employer’s “extended premises” rests on a combination of criteria, including but not limited to proximity, authority, and responsibility for maintenance. However, like the commission, we agree that the rationale of Hunton & Williams v. Gilmer, 20 Va.App. 603, 460 S.E.2d 235 (1995), controls the outcome of the instant case and excludes claimant from coverage. Gilmer was allowed, but not required, to park in a garage across the street from her employer, and the cost of the parking was deducted from her wages. We held on those facts that “no evidence showed that [employer’s] employees were required to park in the [bank] parking garage or that Gilmer sustained her injury in an area of the parking lot reserved for [employer’s] employees only. Thus, ... no evidence disclosed any control or authority by [employer] over the area in which Gilmer parked.” Id. at 607-08, 460 S.E.2d at 237.

In reversing the commission’s award of compensation to Gilmer, we distinguished Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987), relied on by claimant in this ease. We noted that “[t]he Court extended the exception to the general [520]

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600 S.E.2d 138, 43 Va. App. 514, 2004 Va. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-v-food-lion-llc-0578-vactapp-2004.