{
  "id": 2773475,
  "name": "Gloria HAYES, Plaintiff-Appellant, v. AMPEX CORPORATION, Employer, and Argonaut Insurance Co., c/o New Mexico Adjustment Co., Defendants-Appellees",
  "name_abbreviation": "Hayes v. Ampex Corp.",
  "decision_date": "1973-07-11",
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  "casebody": {
    "judges": [
      "LOPEZ, J., concurs.",
      "SUTIN, J., specially concurring."
    ],
    "parties": [
      "Gloria HAYES, Plaintiff-Appellant, v. AMPEX CORPORATION, Employer, and Argonaut Insurance Co., c/o New Mexico Adjustment Co., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nThis is a workmen\u2019s compensation case. Plaintiff, employed as an assembly worker, had emerged from the door of the employer\u2019s building and was on the way to her car in the employer\u2019s parking lot. Her work shift had ended; she was going home. Three to six feet from the door she slipped and fell. The compensation claim is based on injuries from this fall. The trial court granted summary judgment for defendants; plaintiff appeals. The issue is the applicability of \u00a7 59-10-12.12, N.M.S. A.1953 (Repl.Vol. 9, pt. 1, Supp.1971).\nNew Mexico\u2019s Workmen\u2019s Compensation statute is based on extra-hazardous occupations and pursuits. Sections 59-10-2 and 59-10-10, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). Section 59-10-12.12, supra, states:\n\u201cAs used in the Workmen\u2019s Compensation Act [59-10-1 to 59-10-37], unless the context otherwise requires, the words 'injuries sustained in extra-hazardous occupations or pursuit\u2019 shall include death resulting from injury, and injuries to workmen, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in any place where their employer\u2019s business requires their presence and subjects them to extra-hazardous duties incident to the business, but shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such ditties, the approximate cause of. which injury is not the employer\u2019s negligence.\u201d (Our emphasis)\nUnder \u00a7 59-10-12.12, supra, for an injury to have been sustained in an extra-hazardous occupation or pursuit, it must have been sustained \u201cwhile at work\u201d either in or about the premises of the employer or at any place where the employer\u2019s business requires the presence of the employee. \u201c[W]hile at work\u201d is synonymous with \u201cin the course of the employment.\u201d Whitehurst v. Rainbo Baking Company, 70 N.M. 468, 374 P.2d 849 (1962).\nDefendants\u2019 showing was that plaintiff was not at work when she fell; her shift was over and she was going home. Plaintiff attempts to raise a factual issue preventing summary judgment on the basis that she was wearing her \u201cwork smock\u201d and intended to launder the smock at home. Smocks were required but, by plaintiff\u2019s own admission, she was not required to launder the smock. This did not raise a factual issue as to an injury while at work.\nPlaintiff asserts her factual situation is similar to the facts in Clower v. Grossman, 55 N.M. 546, 237 P.2d 353 (1951) and Whitehurst v. Rainbo Baking Company, supra. This is incorrect. In Clower, supra, the waitress was \u201con call\u201d for additional duties. In Whitehurst, supra, the personal comfort (a coffee break) was undertaken during working hours while waiting for the delivery of a part for an automobile and such personal comfort was a contemplated and permitted aspect of the employment. In both cases, the New Mexico Supreme Court upheld findings that the injury occurred in the course of employment.\nHere, the uncontradicted showing is that the accident occurred after plaintiff\u2019s hours of work had ended and when she was going home. She was not at work when the accident occurred. McDonald v. Artesia General Hospital, 73 N.M. 188, 386 P.2d 708 (1963).\nPlaintiff asserts her accident was covered by the last phrase of \u00a7 59-10-12.12, supra, emphasized above. This phrase is to the effect that injuries in extra-hazardous occupations and pursuits do not include injuries occurring after leaving the duties of employment unless the injury is caused by the employer\u2019s negligence. No claim is made in the appeal that the employer was negligent.\nPlaintiff\u2019s claim is that she had not left the duties of her employment because so long as she was on the employer\u2019s premises she was subject to various rules and regulations of the employer, the breach of which could result in disciplinary action against plaintiff. Plaintiff contends \u201cwork\u201d and \u201cduties\u201d have different meanings and that compensation coverage extends to employees injured before leaving their duties.\nWe have previously pointed out that \u00a7 59-10-12.12, supra, provides workmen\u2019s compensation coverage for injuries \u201cwhile at work\u201d and excludes from coverage non-negligent injuries occurring after leaving the duties of employment. By distinguishing between \u201cwork\u201d and \u201cduties,\u201d plaintiff would introduce a third concept \u2014 injuries while performing \u201cduties\u201d which are not \u201cwork.\u201d Assuming, but not deciding, that plaintiff\u2019s compliance with employer rules and regulations was performance of a duty of employment, we have a situation to which \u00a7 59-10-12.12, supra, does not apply. The fallacy in plaintiff\u2019s argument is that she would distinguish between \u201cwork\u201d and \u201cduties,\u201d but then extend coverage to \u201cduties\u201d although the coverage of \u00a7 59-10-12.-12, supra, applies only to \u201cwork.\u201d The distinction sought by plaintiff does not bring her within the coverage of \u00a7 59-10-12.12, supra.\nFurther, the distinction sought by plaintiff is not supported by New Mexico decisions. The \u201cduties of employment\u201d referred to in the last phrase of \u00a7 59-10-12.-12, supra, is synonymous with \u201cwhile at work,\u201d which in turn (as previously pointed out) is synonymous with \u201cin the course of the employment.\u201d McDonald v. Artesia General Hospital, supra, states: \u201c * * * that proof of negligence of the employer is required under the \u2018going and coming\u2019 provision * * * when work for the employer has ceased, even though the injury may occur while the. employee is still upon the employer\u2019s premises. * * * \u201d (Our emphasis). Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365 (1950) states: \u201cIt is a general rule, and so provided by statute in this state, that an employe is not in the course of his employment while going to and returning from his work. * * * \u201d (Our emphasis).\nThe summary judgment is affirmed.\nIt is so ordered.\nLOPEZ, J., concurs.\nSUTIN, J., specially concurring.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      },
      {
        "text": "SUTIN, Judge\n(specially concurring).\nAll that is necessary to write is that plaintiff made no claim, nor offered any proof, that her employer was negligent, and that its negligence was the proximate cause of her injuries. This is a condition precedent to recovery. McDonald v. Artesia General Hospital, 73 N.M. 188, 386 P. 2d 708 (1963); 1 Larson\u2019s Workmen\u2019s Compensation Law, \u00a7 15.42, note 42.\nAs a matter of public interest, McDonald should be reversed. New Mexico is the only state in the union which has adopted the hazardous employment limitation as an inheritance from the pre 1917 period. 1 A Larson\u2019s Workmen\u2019s Compensation Law, \u00a7 55.10, at 981. In 1934, the Supreme Court said the above rule is a harsh rule, a matter of legislative policy subject to interpretation by the court. Koger v. A. T. Woods, Inc., 38 N.M. 241, 31 P.2d 255 (1934).\nIt would be simple to adopt the \u201con premises\u201d rule. Even though plaintiff was admittedly going home, she was entitled to workmen\u2019s compensation because she was still governed by Ampex rules in walking to her car located on a company parking lot provided for employees. It was an incident of employment. For \u201cparking lot\u201d cases, see, Federal Insurance Company v. Coram, 95 Ga.App. 622, 98 S.E.2d 214 (1957); United States Casualty Company v. Russell, 98 Ga.App. 181, 105 S.E.2d 378 (1958); Brown v. Reed, 209 Va. 562, 165 S.E,2d 394 (1969); Willis v. State Accident Insurance Fund, 3 Or.App. 565, 475 P.2d 986 (1970); 58 Am.Jur. Workmen\u2019s Compensation, \u00a7 221; 1 Larson\u2019s Workmen\u2019s Compensation Law, \u00a7 15.14; 8 Schneider, Workmen\u2019s Compensation Text (Permanent Edition) \u00a7 1712; 99 C.J.S. Workmen\u2019s Compensation \u00a7 234.",
        "type": "concurrence",
        "author": "SUTIN, Judge"
      }
    ],
    "attorneys": [
      "James H. Foley, Adams & Foley, Albuquerque, for plaintiff-appellant.",
      "Joseph J. Mullins, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "512 P.2d 1280\nGloria HAYES, Plaintiff-Appellant, v. AMPEX CORPORATION, Employer, and Argonaut Insurance Co., c/o New Mexico Adjustment Co., Defendants-Appellees.\nNo. 1115.\nCourt of Appeals of New Mexico.\nJuly 11, 1973.\nJames H. Foley, Adams & Foley, Albuquerque, for plaintiff-appellant.\nJoseph J. Mullins, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees."
  },
  "file_name": "0444-01",
  "first_page_order": 506,
  "last_page_order": 508
}