{ "id": 8549092, "name": "MARTHA BARHAM, Employee v. FOOD WORLD, INC., Employer, and STANDARD FIRE INSURANCE COMPANY, Carrier", "name_abbreviation": "Barham v. Food World, Inc.", "decision_date": "1980-03-04", "docket_number": "No. 7910IC688", "first_page": "409", "last_page": "416", "citations": [ { "type": "official", "cite": "45 N.C. App. 409" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "166 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558328 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0229-01" ] }, { "cite": "239 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567203 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0731-01" ] }, { "cite": "233 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "128 S.E. 2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560169 ], "opinion_index": 0, "case_paths": [ "/nc/258/0226-01" ] }, { "cite": "274 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559813, 8559784, 8559826, 8559801, 8559771, 8559837 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0274-04", "/nc/274/0274-02", "/nc/274/0274-05", "/nc/274/0274-03", "/nc/274/0274-01", "/nc/274/0274-06" ] }, { "cite": "162 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553835, 8553878 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0448-01", "/nc-app/1/0448-02" ] }, { "cite": "107 S.E. 2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1959, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "249 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618878 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0543-01" ] }, { "cite": "146 S.E. 2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0 }, { "cite": "266 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560912 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0381-01" ] }, { "cite": "393 P. 2d 847", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10579943 ], "year": 1964, "opinion_index": 1, "case_paths": [ "/p2d/393/0847-01" ] }, { "cite": "155 S.E. 728", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "730" } ], "opinion_index": 1 }, { "cite": "199 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614106 ], "year": 1930, "pin_cites": [ { "page": "735" } ], "opinion_index": 1, "case_paths": [ "/nc/199/0733-01" ] }, { "cite": "233 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "128 S.E. 2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "258 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560169 ], "pin_cites": [ { "page": "231-2" } ], "opinion_index": 1, "case_paths": [ "/nc/258/0226-01" ] }, { "cite": "107 S.E. 2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 1 }, { "cite": "249 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618878 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/nc/249/0543-01" ] }, { "cite": "146 S.E. 2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 1 }, { "cite": "266 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560912 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/nc/266/0381-01" ] } ], "analysis": { "cardinality": 733, "char_count": 16819, "ocr_confidence": 0.832, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.34065055530264504 }, "sha256": "7f0a7f54c668a6f94df9ef2eceb11e5eba6f53fbf8af8eba3603e2c198fc1965", "simhash": "1:3764e16eeaa9f2fb", "word_count": 2918 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS concurs.", "Judge HILL dissents." ], "parties": [ "MARTHA BARHAM, Employee v. FOOD WORLD, INC., Employer, and STANDARD FIRE INSURANCE COMPANY, Carrier" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nThe issue presented for our review is whether the full Commission erred in adopting and affirming the opinion and award of the hearing commissioner determining that plaintiff sustained an injury by accident arising out of and in the course of her employment. Defendants argue that on the facts of this case plaintiff is not entitled to benefits under the Workers\u2019 Compensation Act and that the award in her favor should be reversed.\nIn affirming Commissioner Vance\u2019s award, the full Commission stated: \u201cIt is the opinion of the majority of the Full Commission that this is basically an \u2018on-premises\u2019 type case and that plaintiff was in the course of her employement.\u201d The Commission relies upon a series of cases in arriving at this decision, including Maurer v. Salem Co., 266 N.C. 381, 146 S.E. 2d 432 (1966); Davis v. Manufacturing Co., 249 N.C. 543, 107 S.E. 2d 102 (1959); and Harless v. Flynn, 1 N.C. App. 448, 162 S.E. 2d 47, cert. denied, 274 N.C. 274 (1968). This trio of cases recognized an exception to the general rule that injuries sustained in travel to and from work are not compensable under our statute. Justice Higgins succinctly outlined this exception in Maurer:\n\u201c. . . the great weight of authority holds that injuries sustained by an employee while going to and from his place of work upon the premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment within the meaning of the Workmen\u2019s Compensation Acts and are compensable provided the employee\u2019s act involves no unreasonable delay.\u201d Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E. 2d 570 (citing many authorities).\n266 N.C. at 382, 146 S.E. 2d at 433-34.\nThe key phrase in this passage is \u201cdeemed to have arisen out of and in the course of the employment.\u201d Under the law of these cases, if an employee is found to have sustained injuries while going to or from work upon any part of his employer\u2019s premises, this is sufficient to hold the employee\u2019s injuries compensable. The required causal connection between the injuries and the employment has been satisfied, as set forth in Davis, supra:\nIt seems clear that claimant\u2019s going from this parking lot to her working area, all on her employer\u2019s premises, was a necessary incident to her employment, and there was a causal connection between her employment and the injury she received with the result that the injury by accident she suffered arose out of and in the course of her employment.\n249 N.C. at 549, 107 S.E. 2d at 106.\nWe think that these cases are still controlling in the area of workers\u2019 compensation. Even after the North Carolina Supreme Court\u2019s decision in Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 233 S.E. 2d 529 (1977), upon which defendants strongly rely and which we shall discuss infra, all three cases are cited by that same court in Strickland v. King and Sellers v. King, 293 N.C. 731, 239 S.E. 2d 243 (1977). In fact, even the passage from Maurer is set out in the Strickland opinion. In Strickland claimant was denied recovery, but on the basis that the accident occurred a substantial distance (IV2) miles) from the employer\u2019s plant and parking lot.\nOur conclusion, therefore, is that if it were determined without error that plaintiff sustained injuries while going to or from work upon any part of her employer\u2019s premises, she would be entitled to receive compensation for those injuries.\nCommissioner Vance made the following findings of fact:\n4. The defendant employer leased the store which gave them access to the entire parking lot of the shopping center to allow their customers and employees to use while shopping and working. There was a sidewalk which ran in front of each store in the shopping center.\n5. There was a traffic lane marked off with yellow lines directly in front of defendant employer\u2019s store for the convenience of their customers to pick up and load their groceries. Delivery trucks also parked there when unloading supplies delivered to defendant employer. The bag boys employed by defendant employer placed groceries in customers\u2019 cars in the loading zone.\n6. Mr. James Hill, manager of the store, notified employees where they should park while at work away from directly in front of the store in order that the customers could use the space directly in front of the store.\n7. There was a water drain coming from the roof of the store which emptied onto the loading zone. The water had frozen and made a strip of ice from the sidewalk out into the street.\n8. On February 4, 1977, plaintiff was walking from where she had been instructed to park to her work position. She started to take a long step over the icy strip that was in the loading zone in front of Store No. 19. Her shoe heel struck the ice and she fell backwards breaking her ankle\n9. Defendant employer leased space for Store No. 19 and the lease gave the store access to all parking space at the shopping center for its employees\u2019 and customers\u2019 use.\nDefendants except to findings 4, 8, and 9. This Court, of course, is limited to determining whether there is any competent evidence in the record to support these findings of fact. Byers v. Highway Comm., 275 N.C. 229, 166 S.E. 2d 649 (1969).\nWe think findings of fact 4 and 9 are supported by the evidence of Food World\u2019s vice-president and controller, Lowell Plunkett, who testified: \u201cWe have a right for our employees to use the parking lot.\u201d On further examination he also stated: \u201cFood World does have the right for its customers to park there if they want to shop at the store.\u201d Similarly, we think there is competent evidence to support finding of fact 8. It is uncontested that Food World instructed its employees not to park directly in front of the store. Plaintiff, along with other Food World employees, had parked for more than two years in the west section of the parking lot.\nThe evidence supports the Commission\u2019s finding that plaintiff slipped and fell while in the loading zone in front of the store. This loading zone was not leased by Food World, but was marked with yellow lines on the pavement and used by Food World for delivery and unloading of supplies for the store. It was also used by the store\u2019s customers to load their automobiles with products bought in the store and by the store\u2019s bag boys who carried groceries to the customers\u2019 cars. They were not permitted to carry customers\u2019 bags out into the parking lot. On occasions, Food World had also exercised control over the loading zone by ordering people to move their cars out of the zone.\nAs mentioned previously, defendants strongly rely upon the case of Gallimore v. Marilyn\u2019s Shoes, supra, in urging that the award to plaintiff be reversed. In Gallimore, an employee of a shoe store located in a shopping mall was kidnapped and fatally injured when she went to her car after leaving her place of work. The crucial distinguishing feature of Gallimore is that there is absolutely no evidence that it is an \u201con-premises\u201d case. The employer in no way provided plaintiff with a parking place, and the killing did not occur in an area controlled by the employer or used by it in its business.\nThe findings of fact adopted by the full Commission support its opinion that the case sub judice is basically an \u201con-premises\u201d type case.\nIn order for an accident to be \u201con-premises\u201d within the meaning of Maurer, it is not necessary that the employer own or lease the area in question. It is enough that the employer controls the area and uses it in his business. The evidence in this case supports the conclusion that plaintiff was injured in an area, the loading zone, controlled by Food World and used in its business. Therefore, we affirm the Commission\u2019s conclusion that this is an \u201con-premises\u201d case and that plaintiff sustained an injury by accident arising out of and in the course of her employment.\nAffirmed.\nChief Judge MORRIS concurs.\nJudge HILL dissents.", "type": "majority", "author": "MARTIN (Harry C.), Judge." }, { "text": "Judge Hill\ndissenting.\nI must dissent from the opinion of the majority. I do not believe this to be an \u201con-premises\u201d accident.\nPlaintiff parked her car on the west side of the parking lot, walked across the parking lot, slipped on some ice located within the loading area in front of Food World, and sustained injuries.\nThe general rule is that injuries sustained in travel to and from work are not compensable. See Bass v. Mecklenburg County, 258 N.C. 226, 231-2, 128 S.E. 2d 570 (1962). The exception cited by the majority and set forth by Justice Higgins in Maurer v. Salem Co., 266 N.C. 381, 146 S.E. 2d 432 (1966), holds that injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and within the course of his employment.\nI object to the application of the rule in the Maurer case to the facts here. The present case is not an exception to the general rule.\nThe loading zone was an \u201cin common area,\u201d not leased for the specific use of Food World. At least three stores out of a block of eight or nine stores had use of the loading zone, which extended across King\u2019s, Food World and Country Kitchen, and was separated from the stores by a sidewalk over which Food World had no control. The purported control found by the Commission arises only out of an instruction to the employees not to park in front of the store and a request by Food World to people to move their cars. There is no evidence that the cars were moved right away, if at all. Since there was no lease of the loading zone area to Food World specifically, there was no legal means by which Food World could keep anybody from using and controlling the loading zone. The voice of Food World could be no louder than that of a stranger and never was more than a request.\nOne of the purposes of the Worker\u2019s Compensation Act is to encourage employers to provide accident-free working conditions for their employees. When there is no legal right to control possession \u2014 by ownership or by lease \u2014 there can be no legal right to go onto the premises to correct danger and thereby prevent injuries such as the one suffered by the plaintiff. The absence of a lease to the loading area vesting some interest in Food World indicates the right of possession was retained by the owners of the shopping center.\nThe majority opinion attempts to distinguish Gallimore v. Marilyn Shoes, 292 N.C. 399, 233 S.E. 2d 529 (1977), by indicating that it is not an \u201con-premises\u201d case, in contrast to Davis v. Manufacturing Co., 249 N.C. 543, 107 S.E. 2d 102 (1959), where all of the property was under the maintenance and supervision of the employer, and in contrast to Maurer, supra, where the automobile was in the company\u2019s lot, adjacent to the building where claimant worked.\nIn the Gallimore case, supra, Justice Moore dealt with the question of whether an injury did \u201carise out of\u201d employment. Quoting from Harden v. Furniture Co., 199 N.C. 733, at 735, 155 S.E. 728, at 730 (1930), the Court said:\n\u2018[T]he causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relationship of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence.\u2019 Gallimore, at p. 403.\nJustice Moore went on to say in Gallimore, supra, at page 403,\n[T]he Court further held that to be compensable, the injury must be caused by a risk which is reasonably related to and created by the employment.\nAnd again Justice Moore says, quoting from the case of Walk v. S. C. Orbach Co., 393 P. 2d 847 (Okla. 1964):\nThe court reasoned that no recovery should be permitted for an injury caused by a risk to which all persons are exposed. Thus, in the absence of any evidence that the nature of her employment increased the risk of injury or that the employer\u2019s parking lot increased the risk of injury (i.e., it was less safe than any other parking lot), the employee could not recover. This \u2018increased risk\u2019 test has been applied in decisions in other jurisdictions. (Citations omitted.)\nIt is a well settled rule that, \u201c. . . the controlling test of whether an injury \u2018arises out of\u2019 the employment is whether the injury is a natural and probable consequence of the nature of the employment.\u201d Gallimore at 404. A contributing proximate cause of the injury must be a risk to which the employee is exposed because of the nature of the employment. This risk must be such that it might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. \u201cThe test \u2018excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment ....\u2019\u201d Gallimore at 404.\nIn my opinion, the injury sustained by the plaintiff did not \u201carise out of\u201d her employment. Stated simply, she had never reached her place of employment. Neither the parking lot in general nor the loading zone in particular was owned or under the control of the employer. She parked in one of the many parking spaces in the shopping center available to all employees. She walked some distance within the parking lot serving eight or nine stores to an area designated \u201cloading zone\u201d owned by the shopping beriter landlords. She saw ice in the loading zone over which Food World had no legal control, but was used by delivery trucks and shoppers alike patronizing several stores in the shopping center. She attempted to cross the landlord\u2019s property by stepping over the ice, slipped and fell, sustaining injuries. The ice had formed from water draining out of a downspout running from the top of the huge shopping complex owned by the landlord and going under the \u201cpublic\u201d sidewalk. Nothing in this record indicates responsibility or control by Food World over the downspout.\nOther people were readily able to detect the ice in the loading area. It was a risk common to the area and in no way peculiar to the work of the employee, who worked in the delicatessen and bakery section of Food World. In no way can slipping on ice in a public area en route to work be contemplated as a risk incidental to such employment in a bakery shop and delicatessen. This was a danger to the public at large and should have been avoided.\nIn my opinion, the order of the Full Commission should be vacated and the case remanded for entry of an order dismissing the claim.", "type": "dissent", "author": "Judge Hill" } ], "attorneys": [ "McNairy, Clifford & Clendenin, by Harry H. Clendenin III, for plaintiff appellee.", "Smith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr. and William L. Young, for defendant appellants." ], "corrections": "", "head_matter": "MARTHA BARHAM, Employee v. FOOD WORLD, INC., Employer, and STANDARD FIRE INSURANCE COMPANY, Carrier\nNo. 7910IC688\n(Filed 4 March 1980)\nMaster and Servant \u00a7 62.1\u2014 workers\u2019 compensation \u2014 grocery store employee \u2014 injury in loading zone while going from car to work site \u2014 on-premises injury\nPlaintiff grocery store employee sustained an injury by accident arising out of and in the course of her employment when she slipped and fell on ice in a loading zone in front of defendant employer\u2019s store in a shopping center while she was walking to her work site after parking her car in the shopping center parking lot where the loading zone was used for making deliveries to defendant\u2019s store and for loading groceries into the cars of the store\u2019s customers, and defendant on occasion exercised control over the loading zone by ordering people to move their cars therefrom, since the accident in effect occurred on defendant employer\u2019s premises.\nJudge Hill dissenting.\nAPPEAL by defendants from the opinion and award of the North Carolina Industrial Commission filed 18 May 1979. Heard in the Court of Appeals 6 February 1980.\nPlaintiff in this workers\u2019 compensation case is a woman who was employed by defendant Food World at the time of her accident. She worked in the delicatessen and bakery section of a Food World store located in a shopping center in Greensboro. On 4 February 1977, as plaintiff was walking from where she had parked her car to her work site, she slipped and fell on a patch of ice in front of the Food World store, sustaining injuries.\nOn 16 January 1979 Commissioner Coy M. Vance filed an opinion and award finding that plaintiff had sustained an injury by accident arising out of and in the course of her employment. Defendants appealed that decision to the full Commission which, with one member dissenting, adopted and affirmed the hearing commissioner\u2019s opinion and award. Defendants appeal from the opinion and award of the full Commission.\nMcNairy, Clifford & Clendenin, by Harry H. Clendenin III, for plaintiff appellee.\nSmith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr. and William L. Young, for defendant appellants." }, "file_name": "0409-01", "first_page_order": 437, "last_page_order": 444 }