Hayes v. Gibson Hart Co.

789 S.W.2d 775, 1990 Ky. LEXIS 53, 1990 WL 68112
CourtKentucky Supreme Court
DecidedMay 24, 1990
DocketNo. 89-SC-563-DG
StatusPublished
Cited by12 cases

This text of 789 S.W.2d 775 (Hayes v. Gibson Hart Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayes v. Gibson Hart Co., 789 S.W.2d 775, 1990 Ky. LEXIS 53, 1990 WL 68112 (Ky. 1990).

Opinions

LEIBSON, Justice.

This is a workers' compensation case. The issue, broadly defined, is whether the employee’s injury qualifies as an “injury” covered under KRS 342.0011(1), which is a “work-related harmful change in the human organism, arising out of and in the course of employment.” Narrowly defined, the issue is whether the place where the employee was injured should be classified as part of the “operating premises” of his employer included within the coverage [776]*776of the workers’ compensation law even though the employee is in a “going and coming” status. Cf. Ratliff v. Epling, Ky., 401 S.W.2d 43, 45 (1966).

As stated in Larson’s treatise, Workmen’s Compensation Law, Yol. 1, § 15.11, while “[t]he course of employment is not confined to the actual manipulation of the tools of the work, nor to the exact hours of work[,] ... it is generally taken for granted that workmen’s compensation was not intended to protect [the worker] against all the perils of [the] journey” between his home and his place of work. The employee is not entitled to coverage while “still subject to the common risks of the street.” This is the “basic going and coming rule.” Nevertheless, as Larson states, “with a surprising degree of unanimity” the cases applying this rule interpret “course of employment” to cover “going and coming” injuries occurring “on the employer’s premises.” The question in the present case is whether this “on premises” protection applies to the facts of this case.

The appellant, Freddie Lee Hayes, was employed out of the Plumbers and Pipe Fitters Union in Owensboro, Ky., to work for Gibson Hart, a contractor performing services at the T.V.A. Paradise Power Plant located in Muhlenberg County, Ky. On June 16, 1985, Hayes proceeded from his home in Owensboro to the Paradise facility where he was required to check in through a T.V.A. guard gate and walk from the gate about a quarter of a mile to the job site within the plant. Appellant was general foreman of a crew of twenty doing pipe fitting work on cooling towers within the plant. The route from the gate required that he cross some rough terrain and then travel a sidewalk leading to the building where he would report for work. It was about 7:15 a.m., and he was due to start work at 7:30 a.m. He was walking on the sidewalk some three hundred feet from the building when he tripped over a gob of concrete and fell, breaking his wrist. There were two other persons walking with him, also on their way to start work, one a carpenter working for T.V.A. and the other a machinist whose employment was not identified.

The argument for the appellee, Gibson Hart, is that Hayes was in a “going and coming” status because he had not yet reported on the job and the “operating premises” modification did not apply because the place of injury was under the physical control of T.V.A., not Gibson Hart. The appellee argues that only the job site within the plant where Gibson Hart was carrying out its contract should qualify as “operating premises.” The appellee persuaded the Workers' Compensation Board, Daviess Circuit Court, and the Court of Appeals, that the present ease falls squarely under the holding of K-Mart Discount Stores v. Schroeder, Ky., 623 S.W.2d 900 (1981), wherein we decided that an employee who sustained an injury while traversing a shopping center parking lot on the way to report in to her employer's store was not covered by the “operating premises” rule. The employer’s store was one of twenty renting space in the shopping center. We held the injury would be classified as nonwork-related, falling under the going and coming rule. We stated:

“Two factors must be present to fix liability on the employer. First of all, the employer must control the area, and second, a work-related injury must have been sustained on the area.” Id. at 902.

We also stated:

“The ‘operating premises’ rule must be applied on a case by case basis.”

The appellant maintains there are critical factual differences between the K-Mart case and the present case which calls for application of the “operating premises” modification of the “going and coming” rule. The appellant argues the language used in the K-Mart case, while appropriate to that fact situation, should not be narrowly construed to mean that “operating premises” coverage applies only where the employer has physical control over the area where the injury occurred. Specifically, it is the appellant’s position that, although the property here was owned by and under physical control of T.V.A., he should be covered because he had access to the area only by reason of his employment by Gib[777]*777son Hart. His access was provided by a badge issued by Gibson Hart that provided entry. As distinguished from cases excluding coverage on the “common risks of the street” theory, Larson, supra, Hayes not only would not have been where the injury occurred, he could not have been there, but for his employment. Appellant maintains it may be appropriate to exclude coverage under the “going and coming” rule while the employee is in transit on streets, sidewalks and parking lots where the public shares access, but not to exclude coverage in the enclosed area where access is provided only by reason of his employer’s contract; that this should be considered a part of the “operating premises” of his employer.

The problem here is how to apply these rules to present circumstances with due regard to precedent. We view both concepts embodied in the definition of “injury” in KRS 342.0011 as bearing on the solution: (1) “work-related,” and (2) “arising out of and in the course of employment.” Both concepts should be applied when using the “going and coming” rule and the “operating premises” modification. That was the approach in Ratliff v. Epling, supra. The employee was injured in the collapse of a “high wall” on the coal company’s operating premises within a reasonable time after quitting work and while the employee was on his way home, but he had tarried along the way to gather loose coal for his personal use. We decided the “on premises” factor was outweighed by the nonwork-re-lated factor, stating:

“Here the delay in departure plus the nature of the deviation unreasonably compounded the risks to which the employer should be subjected.” Id. at 46.

Thus, the employer’s physical control of the operating premises was not the exclusive determinant of what qualifies as “operating premises.” In Ratliff, the employer had such physical control, and nevertheless we applied the “going and coming” rule, because the employer’s physical control of the premises was outweighed by the “increased hazard” by reason of “a personal mission.”

On the other hand, a long line of Kentucky cases have recognized the “positional risk” theory to extend coverage to employees where the work assignment places them where they were exposed to the injury for which compensation is sought even though the injury producing mechanism was not “work-related.” Corken v. Corken Steel Products, Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
789 S.W.2d 775, 1990 Ky. LEXIS 53, 1990 WL 68112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-gibson-hart-co-ky-1990.