{ "id": 1590210, "name": "Martha LOVATO, Claimant-Appellant, v. MAXIM'S BEAUTY SALON, INC. and Fireman's Fund Insurance Company, Respondents-Appellees", "name_abbreviation": "Lovato v. Maxim's Beauty Salon, Inc.", "decision_date": "1989-10-10", "docket_number": "No. 11285", "first_page": "138", "last_page": "142", "citations": [ { "type": "official", "cite": "109 N.M. 138" }, { "type": "parallel", "cite": "782 P.2d 391" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "106 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708419 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nm/106/0027-01" ] }, { "cite": "74 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2800947 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0320-01" ] }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "252 A.2d 800", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1969, "pin_cites": [ { "page": "807" } ], "opinion_index": 0 }, { "cite": "253 Md. 477", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1920270 ], "year": 1969, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/md/253/0477-01" ] }, { "cite": "196 N.W.2d 335", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1972, "pin_cites": [ { "parenthetical": "employee who, while walking to parking lot maintained by employer, slipped and fell in driveway that was not owned by employer, was within \"zone, environments and hazards\" of employee's labor at time of fall so as to be considered on premises for workers' compensation purposes" } ], "opinion_index": 0 }, { "cite": "38 Mich.App. 393", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2087610 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/mich-app/38/0393-01" ] }, { "cite": "270 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "parenthetical": "injury occurring in parking lot was covered by workmen's compensation where employer was located in shopping center that had control over parking area for entire center" } ], "opinion_index": 0 }, { "cite": "26 Ohio App.2d 165", "category": "reporters:state", "reporter": "Ohio App. 2d", "case_ids": [ 6705166 ], "year": 1971, "pin_cites": [ { "parenthetical": "injury occurring in parking lot was covered by workmen's compensation where employer was located in shopping center that had control over parking area for entire center" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-2d/26/0165-01" ] }, { "cite": "249 N.Y.S.2d 285", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1964, "pin_cites": [ { "parenthetical": "injury suffered by employee of department store located in shopping center in parking area intended for shopping center employees as well as customers arose out of and in course of employment although parking area was not owned, controlled or maintained by employer" } ], "opinion_index": 0 }, { "cite": "21 A.D.2d 708", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5516456, 5514154 ], "year": 1964, "pin_cites": [ { "parenthetical": "injury suffered by employee of department store located in shopping center in parking area intended for shopping center employees as well as customers arose out of and in course of employment although parking area was not owned, controlled or maintained by employer" } ], "opinion_index": 0, "case_paths": [ "/ad2d/21/0708-02", "/ad2d/21/0708-01" ] }, { "cite": "307 Md. 692", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2064078 ], "weight": 3, "year": 1986, "pin_cites": [ { "parenthetical": "shopping mall parking lot constituted \"premises\" and injuries sustained on parking lot by employee of store in mall covered by workers' compensation" }, { "parenthetical": "shopping mall parking lot constituted \"premises\" and injuries sustained on parking lot by employee of store in mall covered by workers' compensation" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/md/307/0692-01" ] }, { "cite": "541 N.E.2d 665", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "133 Ill.Dec. 454", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1989, "opinion_index": 0 }, { "cite": "129 Ill.2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567377 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/129/0052-01" ] }, { "cite": "185 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "pin_cites": [ { "parenthetical": "whether employer owns parking lot immaterial so long as employer has provided the parking lot for its employees" } ], "opinion_index": 0 }, { "cite": "26 Ill.2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357338 ], "year": 1962, "pin_cites": [ { "parenthetical": "whether employer owns parking lot immaterial so long as employer has provided the parking lot for its employees" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0110-01" ] }, { "cite": "105 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599004 ], "weight": 9, "year": 1987, "pin_cites": [ { "page": "506" }, { "page": "746" }, { "page": "506-7" }, { "page": "746-7", "parenthetical": "emphasis in original" }, { "page": "506" }, { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0503-01" ] } ], "analysis": { "cardinality": 615, "char_count": 11858, "ocr_confidence": 0.766, "pagerank": { "raw": 9.815202136991285e-08, "percentile": 0.5331306960367187 }, "sha256": "0754b688a1fd5087a1d44c91b824a685eb4c1e67040c7aca993346083dac8199", "simhash": "1:6b64a8085ceb32f6", "word_count": 1948 }, "last_updated": "2023-07-14T16:43:28.780053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and MINZNER, JJ., concur." ], "parties": [ "Martha LOVATO, Claimant-Appellant, v. MAXIM\u2019S BEAUTY SALON, INC. and Fireman\u2019s Fund Insurance Company, Respondents-Appellees." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nClaimant Martha Lovato (claimant) appeals the denial of her claim for benefits under the Workers\u2019 Compensation Act, NMSA 1978, Sections 52-1-1 to -68 (Cum.Supp.1986) (Interim Act). The hearing officer concluded that her claim was barred by the going and coming rule and that her injury did not occur on the premises of her employer as the term was defined in Dupper v. Liberty Mutual Insurance Co., 105 N.M. 503, 734 P.2d 743 (1987). We disagree with the hearing officer\u2019s determination and hold that the claim falls within an exception to the going and coming rule. We thus remand for the entry of findings and conclusions on the merits of claimant\u2019s claim.\nClaimant was employed by Maxim\u2019s Beauty Salon, Inc. (Maxim\u2019s), a national chain of beauty salons that leases space in department stores. She worked in the salon located on the lower level of the Montgomery Ward department store (Montgomery Ward), an anchor store that occupies a part of a large shopping mall. Maxim\u2019s employees were instructed to park in the parking lot immediately east of Montgomery Ward and to walk through the store to get to the salon.\nOn the day of the accident, claimant parked in the designated location and walked into the shopping mall. Although claimant\u2019s brief-in-chief states that after parking, claimant \u201cwalked into the Montgomery Wards Store to go to work,\u201d Maxim\u2019s takes issue with this rendition of the facts. Instead, Maxim\u2019s maintains, claimant, having parked in the designated area, entered the mall not through Montgomery Ward but through another separate public and common entrance.\nOnce inside the mall, Maxim\u2019s contends, claimant met a coworker and they stopped at a mall restaurant for coffee. After-wards, they walked through the mall and then entered Montgomery Ward through the inside mall entrance. Because of the basis for our disposition of this appeal, we believe that it makes no difference whether claimant entered Montgomery Ward immediately after parking her car, or whether the facts are as related by Maxim\u2019s in its answer brief. In the store, she slipped, fell and was injured. From claimant\u2019s deposition testimony, we understand that she was in a portion of the store in which she would have been had she gone directly to work and that she slipped on a heavily waxed floor. As a result, she received workers\u2019 compensation benefits from Maxim\u2019s for a temporary period.\nThe going and coming rule is codified at Section 52-1-19. That statute provides n that the term \u201c \u2018injury by accident arising out of and in the course of employment\u2019 \u201d does not include injuries to a worker \u201cwhile on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer\u2019s negligence.\u201d\nIn Dupper, our supreme court adopted the premises rule as an exception to the going and coming rule. The court held that \u201ca workman, while on the employer\u2019s premises coming to or going from the actual workplace is in a place where the employee is reasonably expected to be, and * * * is engaged in a necessary incident of employment.\u201d Id. at 506, 734 P.2d at 746. Dupper also held that \u201c[t]he need to prove negligence arises under Section 52-1-19 if, and only if, the employee's injury is sustained while going to or coming from work, and the injury does not fall within the premises rule or any of the generally recognized exceptions to the \u2018going-and-coming\u2019 rule.\u201d Id. at 506-7, 734 P.2d at 746-7 (emphasis in original).\nThe hearing officer found that: (1) claimant\u2019s accident occurred before she had reached the premises of her work place and before she had assumed her employment duties; (2) the accident did not occur within the course and scope of her employment'; and (3) the accident did not happen on Maxim\u2019s premises. He then concluded that the claim was barred under the going and coming rule and that the accident did not occur on Maxim\u2019s premises within the meaning of Dupper.\nClaimant raises two issues on appeal: (1) whether her claim was barred under the going and coming rule; and (2) whether this court, on review, can make its own findings as a basis for entering judgment for claimant.\nFor purposes of the rule adopted in Dupper, \u201cpremises\u201d includes \u201cparking lots intended for employees or customers, whether \u2018within the main company premises or separated from it.\u2019 \u201d Id. at 506, 734 P.2d at 746 (quoting 1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 15.42(a) at 4-98 (1985)). This is the rule in the majority of jurisdictions and is not limited to parking lots owned, controlled, or maintained by the employer. 1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 15.42(a) (1989). \u201cThe doctrine has been applied when the lot, although not owned by the employer, was exclusively used, or used with the owner\u2019s special permission, or just used, by the employees of this employer.\u201d Id. at 4-98 to -99 (footnotes omitted).\nParking lots in shopping malls have been held to be part of the premises of employers whose main premises are located within the mall. See, e.g., De Hoyos v. Industrial Comm\u2019n, 26 Ill.2d 110, 185 N.E.2d 885 (1962) (whether employer owns parking lot immaterial so long as employer has provided the parking lot for its employees), holding limited by Caterpillar Tractor Co. v. Industrial Comm\u2019n, 129 Ill.2d 52, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989); May Dep\u2019t Stores Co. v. Harryman, 307 Md. 692, 517 A.2d 71 (1986) (shopping mall parking lot constituted \u201cpremises\u201d and injuries sustained on parking lot by employee of store in mall covered by workers\u2019 compensation); Berry v. B. Gertz, Inc., 21 A.D.2d 708, 249 N.Y.S.2d 285 (1964) (injury suffered by employee of department store located in shopping center in parking area intended for shopping center employees as well as customers arose out of and in course of employment although parking area was not owned, controlled or maintained by employer); Frishkorn v. Flowers, 26 Ohio App.2d 165, 270 N.E.2d 366 (1971) (injury occurring in parking lot was covered by workmen\u2019s compensation where employer was located in shopping center that had control over parking area for entire center).\nMaxim\u2019s concedes that if claimant\u2019s injury had taken place in the parking lot itself, the accident would be deemed to have occurred on the premises and thus come under the Dupper exception. The question presented to us in this appeal, however, is whether the claim was barred simply because the accident occurred after claimant had left the parking lot but before she had arrived at Maxim\u2019s. More precisely, is there an exception to the going and coming rule that applies to the facts of this appeal? We believe that there is.\nA well-recognized exception to the going and coming rule is travel between two parts of an employer\u2019s premises. See Larson, supra, \u00a7 15.14(a). Because a parking lot is generally treated as part of the premises, most courts hold that an injury occurring in a public street or other off-premises location between the place of business and the parking lot is on a necessary route between the two portions of the premises and thus is in the course of employment. Id., \u00a7 15.14(b). See id., \u00a7 15.21 (criticizing any distinction between public and private property in this situation as irrelevant in workers\u2019 compensation cases). See also Adair v. Metropolitan Bldg. Co., 38 Mich.App. 393, 196 N.W.2d 335 (1972) (employee who, while walking to parking lot maintained by employer, slipped and fell in driveway that was not owned by employer, was within \u201czone, environments and hazards\u201d of employee\u2019s labor at time of fall so as to be considered on premises for workers\u2019 compensation purposes).\nWe agree with the observation made in Harryman. In that case, the Maryland court stated that \u201cit would be unreasonable to hold that injuries sustained by [the worker] on the parking lot or between the building entrance and the time clock would be compensable, but injuries sustained between the parking lot and the building entrance would not be compensable.\u201d Id. at 695-6, 517 A.2d at 73 (quoting Proctor-Silex v. Debrick, 253 Md. 477, 489, 252 A.2d 800, 807 (1969)). We thus hold that claimant\u2019s right to compensation was not barred by Section 52-1-19.\nMaxim\u2019s nonetheless argues that Section 52-1-19 requires an injured employee to prove the employer\u2019s negligence for an injury sustained while the employee is on the way to or from work, but off the employer\u2019s premises. Under Dupper, however, negligence need be shown only if the injury does not fall within one of the generally recognized exceptions to the going and coming rule. Because we hold that claimant\u2019s injury does fall within such an exception, proof of such negligence is not required.\nMaxim\u2019s further contends that, in relying on several cases cited in her brief-in-chief, claimant has attempted to come under the special hazards exception to the going and coming rule. See Larson, supra \u00a7 15.13 et seq. A special hazard arises when the employer subjects the employee to a particular risk beyond those risks shared by the general public. Id., \u00a7 15.13. We have not viewed claimant\u2019s argument on appeal as relying solely on the special hazards exception. Neither does our disposition depend on such exception. Instead, we have based our holding on another, distinct exception, that of an employee traveling between two parts of an employer\u2019s premises. We believe that our holding in this appeal is but a reasonable extension of the exceptions principle enunciated in Dupper to facts not present there.\nUnder her second issue, claimant contends we can determine independently that the evidence established she was totally disabled. Claimant relies on Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988) for the principle that we, as a reviewing court, can make independent findings. Maxim\u2019s likewise maintains on appeal that this court, under SCRA 1986, 12-201(C), can affirm the hearing officer\u2019s decision for reasons other than that the claim was barred by the going and coming rule. See also Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438 (1964). Apparently, Maxim\u2019s argues, as does claimant, that we can independently determine the merits of claimant\u2019s claims, even though the hearing officer, based on his holding that the claim was barred, found it unnecessary to enter findings and conclusions on the merits. Specifically, Maxim\u2019s asserts the evidence supports a conclusion that claimant failed to prove causation under the Interim Act.\nIn Tallman, we spoke of independent findings in conjunction with the question of substantial evidence and the whole record standard of review. Here, we are not presented with a substantial evidence question, since the hearing officer did not enter findings and conclusions on claimant\u2019s disability. We believe the hearing officer should be given the opportunity to enter such findings and conclusions and that, as a reviewing court, we should not usurp this function. Neither do we interpret Rule 12-201(C) to permit us to affirm under such circumstances. We therefore remand for entry of such findings. See SCRA 1986, 1-052; Hickey v. Griggs, 106 N.M. 27, 738 P.2d 899 (1987).\nIn summary, we reverse the hearing officer\u2019s determination that the claim was barred by the going and coming rule. We remand for entry of findings and conclusions on the merits of claimant\u2019s disability. Claimant is awarded appeal costs.\nIT IS SO ORDERED.\nALARID and MINZNER, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Narciso Garcia, Jr., Garcia Law Firm, Albuquerque, N.M. for claimant-appellant.", "H. Kevin Haight, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, N.M., for respondents-appellees." ], "corrections": "", "head_matter": "782 P.2d 391\nMartha LOVATO, Claimant-Appellant, v. MAXIM\u2019S BEAUTY SALON, INC. and Fireman\u2019s Fund Insurance Company, Respondents-Appellees.\nNo. 11285.\nCourt of Appeals of New Mexico.\nOct. 10, 1989.\nNarciso Garcia, Jr., Garcia Law Firm, Albuquerque, N.M. for claimant-appellant.\nH. Kevin Haight, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, N.M., for respondents-appellees." }, "file_name": "0138-01", "first_page_order": 174, "last_page_order": 178 }