Kansas Case Law
RINKE v. BANK OF AMERICA, 93,868 (Kan. 12-22-2006) PEGGY A.
RINKE, Claimant/Appellee, v. BANK OF AMERICA and ROYAL &
SUN ALLIANCE INSURANCE COMPANY (AMERICAN INSURANCE
COMPANY), Respondents/Appellants. No. 93,868. Supreme
Court of Kansas. Updated: December 22, 2006.
SYLLABUS BY THE COURT
1. The Workers Compensation Act specifically adopts the
Kansas Act for Judicial Review and Civil Enforcement of
Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers
compensation cases. The appellate court’s review of the
Workers Compensation Board’s decision shall be upon
questions of law. K.S.A. 44-556(a).
2. The interpretation of K.S.A. 44-508(f)-containing the
coming and going rule and exceptions-is a question of law
subject to de novo review. Although the Workers
Compensation Board’s interpretation of the statute is
persuasive, it is not binding on the courts.
3. Whether the Workers Compensation Board’s findings of
fact are supported by substantial competent evidence is a
question of law. Whether the injury occurred on the
employer’s premises is a question of fact. The ultimate
issue, i.e., whether an accident arises out of and in the
course of employment entitling claimant to compensation, is
also a question of fact.
4. In workers compensation cases, substantial evidence is
evidence possessing something of substance and relevant
consequence and carrying with it fitness to induce
conviction that the award is proper, or furnishing a
substantiating basis of fact from which the issue tendered
can be reasonably resolved.
5. In workers compensation cases, an appellate court
reviews the evidence in the light most favorable to the
prevailing party below and does not reweigh the evidence or
assess the credibility of witnesses. The court must also
accept as true all inferences to be drawn from the evidence
which support or tend to support the findings of the
factfinder.
6. The burden of proof is on the workers compensation
claimant to establish his or her right to an award of
compensation and to prove the various conditions on which
the right depends. K.S.A. 44-501(a). The party asserting
the Workers Compensation Board’s action is invalid,
however, bears the burden of proving the invalidity. K.S.A.
77-621(a)(1).
7. In any employment to which the Workers Compensation Act
applies, if an employee is injured by an accident that
arises out of and in the course of employment, the employer
is liable to compensate the employee. K.S.A. 44-501(a).
8. The two phrases arising “out of” and “in the course of
employment,” as used in our Workers Compensation Act,
K.S.A. 44-501 et seq., have separate and distinct meanings;
they are conjunctive, and each condition must exist before
compensation is allowable.
9. In workers compensation cases, the phrase “out of”
employment points to the cause or origin of the worker’s
accident and requires some causal connection between the
accidental injury and the employment. An injury arises out
of employment when there 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. Thus, an
injury arises out of employment if it arises out of the
nature, conditions, obligations, and incidents of the
employment.
10. In workers compensation cases, the phrase “in the
course of employment” relates to the time, place, and
circumstances under which the accident occurred and means
the injury happened while the worker was at work in the
employer’s service.
11. Given an appellate court’s limited standard of review
on questions of fact, the Workers Compensation Board’s
finding in this case that the claimant’s injury occurred on
the employer’s premises is supported by substantial
competent evidence.
Review of the judgment of the Court of Appeals in 34 Kan.
App. 2d 591, 121 P.3d 472 (2005). Appeal from the Workers
Compensation Board. The judgment of the Court of Appeals
reversing the Workers Compensation Board is reversed. The
judgment of the Workers Compensation Board is affirmed.
Terry J. Torline, of Martin, Pringle, Oliver, Wallace &
Bauer, L.L.P., of Wichita, argued the cause and was on the
brief for respondents/appellants.
Randy S. Stalcup, of Affiliated Attorneys of Pistotnik Law
Offices, PA, of Wichita, argued the cause and was on the
brief for claimant/appellee.
The opinion of the court was delivered by
NUSS, J.
This case requires us to determine whether an employee is
entitled to receive workers compensation when, while
leaving her office building after work, she fell in an
adjoining parking lot leased by her employer. Both the
Administrative Law Judge (ALJ) and the Kansas Workers
Compensation Board (Board) found that she was injured while
on her employer’s premises and therefore entitled to
compensation. The Court of Appeals, however, held the lot
was not part of the employer’s premises and compensation
was therefore excluded under the “going and coming” rule of
K.S.A. 44-508(f). Rinke v. Bank of America, 34 Kan. App. 2d
591, 121 P.3d 472 (2005). We granted Rinke’s petition for
review; our jurisdiction is pursuant to K.S.A. 20-3018(b).
The issues on appeal, and this court’s accompanying
holdings, are as follows:
1. Does substantial competent evidence support the Board’s
finding that Rinke was injured on the Bank’s premises? Yes.
2. Does the “special risk” exception to the going and
coming rule apply? Moot. Accordingly, we reverse the Court
of Appeals and affirm the Board and the ALJ.
FACTS
Peggy Rinke worked for the Bank of America (Bank) in
Wichita. Her normal working hours were 6 a.m. to 2:45 p.m.
On March 5, 2001, Rinke left work between 3:10 and 3:15
p.m., using the only door authorized for anyone to exit and
enter the building. The exit and covered walkway lead to an
adjacent parking lot to the south. According to Rinke,
employees have to go through the parking lot to enter and
exit the building. As she approached her car parked in the
lot four or five stalls from the walkway, she slipped on a
patch of sand that was placed to prevent people from
slipping on an ice patch. Rinke’s right hip, shoulder, and
elbow hit the pavement.
At the time of the accident the Bank rented and occupied
approximately 94% (156,000 square feet of space) of its
building from Argora Properties, L.P. (Argora). The Bank
paid $1.56 million per year in rent. The remaining 6% of
the building is occupied by Wesley Occupational Services
(Wesley).
This facility is essentially a telephone banking operation,
with most of the employees devoted to receiving incoming
calls regarding banking services. There is no sign posted
informing the public the building houses a bank.
Accordingly, there is no walk-in traffic, except for use of
an ATM on the first floor. The building is “secured,” i.e.,
once one enters the main lobby, further access is denied
unless he or she possesses an access badge.
In addition to the building, Argora also owns the parking
lot. Section 1.2 of the lease agreement specifically
granted the Bank the right to use, as an “appurtenance to
the leased premises,” the “Parking Facility” (lot). Among
other things, it entitled the Bank to install and maintain
a drive-up ATM facility, at the Bank’s expense, in an area
along the lot’s eastern edge. It also granted the Bank the
right to use 737 of the lot’s 757 parking spaces as
“reserved spaces.” According to the lease agreement rider,
the reserved spaces represented by the “reserved parking
permits” would at all times be located within an area of the
lot designated for use solely by the Bank.
The lot’s 20 remaining spaces, located in the eastern and
southern corner of the lot away from the building, are
reserved for Wesley employees and patients. As with all
others, they were authorized only to enter and exit from
the one building door. The spaces are marked with a sign
stating “Wesley Occupational Health Parking.”
After Rinke filed her workers compensation claim, she
testified that Bank employees were told they could not park
in Wesley’s 20 parking spaces. If they did, they were
subject to being ticketed by the Wichita police department
with the assistance of security. She has been ticketed for
doing so. She also testified that the remaining spaces,
although not marked or specifically designated for Bank
employees, were utilized by them.
These non-Wesley spaces also could be utilized by the
general public. Rinke testified, however, that the general
public would have no reason to enter the building unless
they went to Wesley’s area.
Under the lease, Argora was responsible for maintenance,
lighting, and security of the lot. The Bank did possess the
right to have Argora, upon request, promptly tow any
unauthorized vehicles parked in any reserved space or on
any surface parking area. The ALJ determined that Rinke’s
injuries arose out of and in the course of her employment
and her injuries were compensable because the Bank “had
exclusive right and control over all 757 parking spaces
except for 20 specifically designated as HCA Wesley parking
places.” In other words, he found that the parking lot was
part of the employer’s premises. The Board affirmed, and
the Court of Appeals reversed. Rinke v. Bank of America, 34
Kan. App. 2d 591.
ANALYSIS
Issue 1: Substantial competent evidence supports the
Board’s finding that Rinke was injured on the Bank’s
premises. Rinke argues that by leasing a large portion of
the parking lot, the Bank effectively controlled the lot,
despite maintenance and security being performed by Argora.
She suggests that the appropriate test for “premises” should
be whether the parking lot is leased to the employer, thus
giving the employer the right to control.
In response, the Bank asserts that a “premises” rule based
on the existence of a lease would conflict with the
rationale articulated in Thompson v. Law Offices of Alan
Joseph, 256 Kan. 36, 883 P.2d 768 (1994). The Bank reads
Thompson to mean that in order for a leased lot to be part
of an employer’s premises, the employer must exercise
control of it. The Bank asserts that its landlord, Argora,
controlled the lot.
Standard of Review
The Workers Compensation Act specifically adopts the Kansas
Act for Judicial Review and Civil Enforcement of Agency
Actions (KJRA), K.S.A. 77-601 et seq., for workers
compensation cases. K.S.A. 44-556(a). The appellate court’s
review of the Board’s decision “shall be upon questions of
law.” K.S.A. 44-556(a).
The interpretation of K.S.A. 44-508(f)-containing the
coming and going rule, and exceptions — is a
question of law subject to de novo review. Although the
Board’s interpretation of the statute is persuasive, it is
not binding on the courts. Foos v. Terminix, 277 Kan. 687,
692-93, 89 P.3d 546 (2004).
The determination of whether the Board’s findings of fact
are supported by substantial competent evidence is also a
question of law. Titterington v. Brooke Insurance, 277 Kan.
888, 894, 88 P.3d 643 (2004). Whether the injury occurred
on the employer’s premises is a question of fact. County of
Cook v. Industrial Comm’n, 165 Ill. App. 3d 1005, 1008, 520
N.E.2d 896 (1988). The ultimate issue here, i.e., whether
an accident arises out of and in the course of employment
entitling Rinke to compensation, is also a question of
fact. Titterington, 277 Kan. at 896.
In workers compensation cases, substantial evidence is
evidence possessing something of substance and relevant
consequence and carrying with it fitness to induce
conviction that the award is proper, or furnishing a
substantiating basis of fact from which the issue tendered
can be reasonably resolved. We review the evidence in the
light most favorable to the prevailing party below and do
not reweigh the evidence or assess the credibility of
witnesses. Titterington, 277 Kan. at 894. We must also
accept as true all inferences to be drawn from the evidence
which support or tend to support the findings of the
factfinder. Jones v. Kansas State University, 279 Kan. 128,
140, 106 P.3d 10 (2005) (when under KJRA appellate court
ascertains from record if substantial competent evidence
supports agency findings, court must accept as true the
evidence and all inferences to be drawn therefrom which
support or tend to support findings of factfinder).
The burden of proof is on the workers compensation claimant
to establish his or her right to an award of compensation
and to prove the various conditions on which the right
depends. K.S.A. 44-501(a). The party asserting the Board’s
action is invalid, however, bears the burden of proving the
invalidity. K.S.A. 77-621(a)(1). As a result, the Bank, as
the appellant, retains the burden in this court of proving
the Board erred. Foos v. Terminix, 277 Kan. at 693.
Discussion
We begin our analysis by reviewing some of the tenets of
workers compensation law. In any employment to which the
Workers Compensation Act applies, if an employee is injured
by an accident that arises out of and in the course of
employment, the employer is liable to compensate the
employee. K.S.A. 44-501(a). The term “arising out of and in
the course of employment” was previously discussed by this
court: “The two phrases arising `out of’ and `in the course
of’ employment, as used in our Workers Compensation Act,
K.S.A. 44-501 et seq., have separate and distinct meanings;
they are conjunctive, and each condition must exist before
compensation is allowable. The phrase `out of’ employment
points to the cause or origin of the worker’s accident and
requires some causal connection between the accidental
injury and the employment. An injury arises `out of’
employment when there 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. Thus, an
injury arises `out of’ employment if it arises out of the
nature, conditions, obligations, and incidents of the
employment. The phrase `in the course of’ employment relates
to the time, place, and circumstances under which the
accident occurred and means the injury happened while the
worker was at work in the employer’s service. [Citations
omitted.]” (Emphasis added.) Kindel v. Ferco Rental, Inc.,
258 Kan. 272, 278, 899 P.2d 1058 (1995).
While generally injuries are compensable if deemed to have
“arisen out of and in the course of employment,” there are
limitations. K.S.A. 44-508(f) provides in relevant part:
“The words ‘arising out of and in the course of employment’
as used in the workers compensation act shall not be
construed to include injuries to the employee occurring
while the employee is on the way to assume the duties of
employment or after leaving such duties, the proximate
cause of which injury is not the employer’s negligence.”
(Emphasis added.) This is known as the “going and coming”
rule. Chapman v. Beech Aircraft Corp., 20 Kan. App. 2d 962,
894 P.2d 901, aff’d 258 Kan. 653, 907 P.2d 828 (1995). This
court has stated the rationale of the rule: “[W]hile on the
way to or from work the employee is subjected only to the
same risks or hazards as those which the general public is
subjected. Thus, those risks are not causally related to
the employment. [Citations omitted.]” Thompson v. Law
Offices of Alan Joseph, 256 Kan. at 46.
Although K.S.A. 44-508(f) generally excludes compensation
if an employee is injured on the way to or from work, the
statute also includes a “premises” exception to the
exclusion: “An employee shall not be construed as being on
the way to assume the duties of employment or having left
such duties at a time when the worker is on the premises of
the employer. . . .” (Emphasis added.)
The parties, the Board, and the Court of Appeals all
dissected this court’s most recent workers compensation
case dealing with a parking area-Thompson v. Law Offices of
Alan Joseph, 256 Kan. 36. In the Court of Appeals’ analysis
after reviewing Thompson, however, it came to a conclusion
opposite from the ALJ and Board.
A review of Thompson is therefore helpful. There, as part
of the employment contract, Linda Thompson’s employer paid
for a parking space for her in a public garage across a
public street from the office where she worked. On the day
of the accident, she went to the fourth floor of the
garage, used an enclosed overhead walkway across the public
street to the office, and took an elevator to the eighth
floor. The elevator exited into a hallway, which led to two
offices, one of which was her employer’s office. When
Thompson stepped off of the elevator on the eighth floor,
she slipped and fell.
Thompson argued she was on her employer’s premises from the
moment she parked her car, or alternatively, that she was
on the premises at least at the time she fell. Neither the
parking garage nor the building where she worked was owned,
controlled, or maintained by her employer.
The ALJ in Thompson denied compensation because she was en
route to work when she was injured. The decision was upheld
by the Director of Workers Compensation, the district
court, and the Court of Appeals. The only issue before this
court was whether Thompson’s injury occurred on her
employer’s premises under K.S.A. 44-508(f).
In construing the “premises” exception, this court noted
that precedent required the employer to exercise “control”
of an area in order for the place to be part of the
employer’s premises. 256 Kan. at 39. After this
acknowledgment, this court examined three non-Kansas cases
in which a claimant who fell in a parking lot adjoining the
workplace was entitled to workers compensation. Woodruff
World Travel, Inc. v. Indust. Comm., 38 Colo. App. 92, 554
P.2d 705 (1976); Livingstone v. Abraham & Straus, Inc., 111
N.J. 89, 543 A.2d 45 (1988); and Barnes v. Stokes, 233 Va.
249, 355 S.E.2d 330 (1987).
This court then ruled against Thompson, holding that the
parking garage was not part of the employer’s premises
under the following rationale:
“In the case at bar, Employer provided parking to Linda as
a fringe benefit of her employment. However, there is no
evidence that Employer controlled Linda’s parking in any
way other than paying for her monthly parking fee. The
Barnes, Woodruff, and Livingstone decisions are all
distinguishable because in these cases the parking area was
furnished by the employer’s landlord. There is no evidence
here that the owner of the building where Employer rented
office space also owned the public parking garage where
Linda parked her car. Unlike in Livingstone, where employer
directed its employees to park in a certain area of the
lot, there is no evidence Employer engaged in such control
over Linda’s parking. Linda was subject to no greater risk
than members of the general public who used the parking
garage. The public parking garage is not part of Employer’s
premises.” 256 Kan. at 44.
The Board also thoroughly examined Barnes v. Stokes, 233
Va. 249, as discussed in Thompson. There, Barnes was
injured after work as she was walking across a parking lot
adjacent to a leased two-story office building where she
was employed. The employer was “‘allocated a certain
portion of the parking lot’ sufficient for all its employees
at that location to park and was `specifically requested’
to require its employees to park their vehicles in the
designated area.” 233 Va. at 251.
Although the employer did not own or maintain the parking
lot, the Barnes court ultimately rejected the plaintiff’s
claim that she was not injured on the employer premises and
therefore free to pursue a tort action against the employee
who had caused her injury:
“In the present case, while the situs of the injury was not
on property owned or maintained by plaintiff’s employer,
nevertheless it was on premises of another that were in
such proximity and relation to the space leased by the
employer as to be in practical effect the employer’s
premises. Even though the evidence showed that members of
the public who were visiting other tenants in the office
building could park randomly on the lot in question, the
accident sued upon occurred in the area specifically
allocated to the employer and at the place where the
employees were required to park their vehicles. “As we said
in Brown [v. Reed, 209 Va. 562, 566, 165 S.E.2d 394
(1969)], a parking area adjacent to a work site is a
valuable fringe benefit for employees. Because that
convenience reduces tardiness and enhances the desirability
of a particular workplace, such a facility also benefits the
employer. [Citation omitted.] Thus, consistent with the
philosophy of workers’ compensation, industry properly
should be charged with the expense of injury which, as
here, occurs at a place furnished as an incident to the
employment and happens at a time when employees reasonably
can be expected to use the designated area, even though the
specific location is not owned or maintained by the
employer.” 233 Va. at 252-53.
Here, the Board followed the rationale of Barnes and
concluded that Rinke was injured on the Bank’s premises
because: (1) the parking lot was adjacent to the building
where she worked; (2) the Bank leased a substantial portion
of the building and the parking lot; (3) the Bank was
allocated a certain portion of the lot; (4) the Bank
specifically requested her to park in the allocated spaces;
and (5) she was injured in that designated area of the lot
leased by the Bank. It correctly observed that in Thompson
this court drew an important distinction from Barnes,
“finding that in Barnes the parking area was furnished by
the employer’s landlord, whereas in Thompson, that was not
the case. However, in this instance, the parking area was
owned by the same entity who owned the building, with the
parking area being leased to respondent, a fact strikingly
similar to Barnes and distinguishable from Thompson.”
In reversing the Board’s award, the Court of Appeals
observed that Kansas courts, unlike the Virginia court in
Barnes, follow the minority view and narrowly construe
“premises.” The court held that the correct test for
determining premises was to see whether the Bank exercised
control of the lot:
“[W]e consider whether substantial competent evidence
supports the Board’s determination that the parking lot was
part of the Bank’s premises, utilizing the narrower
definition of `premises’ approved by the Supreme Court in
Thompson. Specifically, we consider whether the Bank
exercised control of the parking lot.” 34 Kan. App. 2d at
597. The Court of Appeals next interpreted this court’s
holding in Thompson, as quoted earlier, as supplying a
specific factors test for determining the existence of
premises, which it then faithfully applied to the facts of
this case: “Considering the factors considered by the court
in Thompson, we cannot find that the Bank controlled the
parking lot. Although the Bank paid Argora to lease space
in the parking lot, Argora was responsible for maintenance,
enforcement, towing control, and security of the parking
lot during and after business hours. Bank employees did not
have parking stickers or designated parking spaces in the
lot. Moreover, although there were 20 spaces designated for
use by Wesley, there was no evidence that the Bank directed
its employees to park in any of the other 737 spaces in the
lot. Nor was Rinke subjected to greater risk than the
general public who used the parking lot.
“Other than the fact that the parking lot and building were
leased by the Bank from the same entity, a fact mentioned
as significant by the Thompson court, the facts of this
case simply do not support a finding that the Bank had
control of the parking lot. Thus, we conclude that the
Board’s finding that Rinke was injured on the Bank’s
premises was not supported by substantial competent
evidence.” 34 Kan. App. 2d at 597.
Because the court concluded that the premises exception did
not apply, it held that Rinke’s claim was not covered by
the Workers Compensation Act, and it reversed the Board’s
contrary finding. Rinke, 34 Kan. App. 2d at 597-98. In
Thompson, we acknowledged the general premises rule with
respect to parking lots:
“‘As to parking lots owned by the employer, or maintained
by the employer for his employees, practically all
jurisdictions now consider them part of the “premises,”
whether within the main company premises or separated from
it. This rule is by no means confined to parking lots
owned, controlled, or maintained by the employer. The
doctrine has been applied when the lot, although not owned
by the employer, was exclusively used, or used with the
owner’s special permission, or just used, by the employees
of the employer.'” (Emphasis added.) 256 Kan. at 42
(Quoting 1 Larson’s Workmen’s Compensation Law §
15.42(a), pp. 4-104 to 4-121 [1953]).
We also referenced Annot., 4 A.L.R.5th 443 (reciting the
above rule).
Following this recitation and the ensuing discussion of
Barnes, Woodruff, and Livingstone, we expressly
distinguished the facts of Thompson-where the employer paid
for an employee’s parking space in a public parking
garage-from those three cases in the following context:
“In the case at bar, Employer provided parking to Linda as
a fringe benefit of her employment. However, there is no
evidence that Employer controlled Linda’s parking in any
way other than paying for her monthly parking fee. The
Barnes, Woodruff, and Livingstone decisions are all
distinguishable because in these cases the parking area was
furnished by the employer’s landlord. There is no evidence
here that the owner of the building where Employer rented
office space also owned the public parking garage where
Linda parked her car.” 256 Kan. at 44.
The above passage reveals this court’s continued adherence
to the control requirement of prior case law, e.g., “there
is no evidence that Employer controlled Linda’s parking in
any way other than paying for her monthly parking fee.”
Language subsequent to this phrase also reveals some degree
of employer control inherent in an employer’s tenancy.
Specifically, we noted the three cited cases “are all
distinguishable because in these cases the parking area was
furnished by the employer’s landlord” and by contrast,
“[t]here is no evidence here that the owner of the building
where Employer rented office space also owned the public
parking garage where Linda parked her car.” In our view,
this distinction includes a significant difference.
Moreover, in all three cases considerably more than
Thompson’s single parking space was provided to employees.
In Livingstone, the employer tenant paid for general access
to its landlord’s mall parking facilities through its lease
agreement; in Woodruff, the employer’s landlord provided
free parking in a lot adjacent to the leased office
building for all tenants’ employees; in Barnes, the
landlord provided its tenant employer access to an adjacent
50-space parking lot for its employees. For these reasons,
we conclude that in those cases a much more substantial
landlord and employer tenant relationship covering employee
parking existed than in Thompson.
Accordingly, under our facts, we find some measure of Bank
control inherent in its lease of 737 of 757 spaces in a
parking lot for its employees working in an adjacent
“secured” 150,000 square foot building which is being
rented from the same landlord in the same lease. We see
little practical difference between these circumstances and
those where an employer owns the building and its adjoining
employee parking lot. Cf. Livingstone v. Abraham & Straus,
Inc., 111 N.J. 89, 104 (“Under the circumstances of this
case, the portion of the lot designated by [employer] for
its employees’ use was effectively equivalent to an
employer-owned lot.”); accord Simkins v. General Motors, 453
Mich. 703, 727, 556 N.W.2d 839 (1996) (under the going and
coming rule, “an employee is injured in the course of his
employment when traveling to or from work when . . . the
injury occurred on property owned, leased, or maintained by
the employer.”); DeHoyos v. Industrial Comm., 26 Ill. 2d
110, 185 N.E.2d 885 (1962) (for purposes of the premises
rule, “whether the employer owns or does not own the
parking lot is immaterial so long as the employer has
provided the parking lot for its employees”). Our
conclusion is strengthened by another attribute of control
mentioned in Thompson and contained in Livingstone, i.e.,
employer direction of employees on where to park. As
Thompson distinguished: “Unlike in Livingstone, where the
employer directed its employees to park in a certain area
of the lot, there is no evidence Employer engaged in such
control over Linda’s parking.” 256 Kan. at 44.
Livingstone’s employer was a shopping mall anchor tenant.
As part of its lease agreement with the mall owner, it paid
for general access to the mall’s parking facilities which
it neither owned nor maintained. The employer did not have
control over the entire lot nor the right to exclusively
use a particular area; rather, it directed its employees to
park in a certain remote area of the lot and appropriated
the area to the employer’s use. The New Jersey court
concluded: “‘In this context, the “control” standard . . .
is fully satisfied.'” Thompson, 256 Kan. at 43 (quoting
Livingstone, 111 N.J. at 105).
The instant case provides even stronger facts supporting
this rationale. First, the Bank has expressly leased up to
97% of the lot; the balance, 20 spaces or 3%, is
specifically reserved for the only other tenant in the
office building adjoining the lot. Accordingly, unlike
Livingstone, there is no need to unilaterally “appropriate”
any spaces from a common lot for Bank employees’ use.
Indeed, the Bank has the express authority under the lease
to require landlord Argora to tow unauthorized vehicles
from Bank spaces.
Second, the Bank directs its employees to not park in
Wesley’s 20 reserved spaces. The lease agreement supports
this employer directive. Additionally, Bank employees’
vehicles which are in violation are ticketed. Bank
employees are requested to park in other spaces.
Third, the Bank has the right under the lease agreement to
install and maintain an ATM facility, at its own expense,
in an area along the lot’s edge. While this entitlement
does not affect the control of parking, it does indicate
some added Bank control of the parking lot.
Pierson v. Lexington Public Library, 987 S.W.2d 316 (Ky.
1999), contains some parallels. There, the issue was
whether substantial evidence supported an ALJ finding that
the workers compensation claimant’s injuries occurred on
the operating premises of her employer. Kentucky law
acknowledges a distinction between an employer’s owned
property and its premises but allows compensation for
injuries sustained on either. See generally Lollar v.
Wal-Mart Stores, Inc., 767 S.W.2d 143, 148, 150 (Tenn.
1989) (in Tennessee injuries occurring while an employee is
en route to or from work are compensable if they occur on
the employer’s premises; Kentucky employs an “operating
premises” theory with liability based on the employer’s
control of the area).
In Pierson, claimant Schroeder was employed at the
Lexington Public Library. The library leased approximately
144 parking spaces for staff and patrons from the owner of
an adjacent parking garage. Employees were requested to
park on the seventh floor of the garage, although
particular spaces were not reserved for their use. They were
required to descend to the first floor in order to enter
the library. When Schroeder was returning from lunch, and
apparently on the elevator in order to enter the library,
the elevator dropped and she was injured.
She filed a workers compensation claim, alleging that she
was on her employer’s operating premises when the injury
occurred within the course and scope of her employment. The
library asserted that it did not own or operate the parking
garage and that the garage therefore was not a part of its
operating premises.
The ALJ found that the accident occurred on the employer’s
operating premises and the injuries were compensable. The
Court of Appeals (preceded by the Workers Compensation
Board) reversed.
The Kentucky Supreme Court acknowledged the state’s “going
and coming” rule but also recognized that an employer is
responsible for work-related injuries that occur on its
entire “operating premises” and not just at the injured
worker’s worksite. It affirmed that “[o]f particular
concern in making that determination [of operating
premises] is the extent to which the employer could control
the risks associated with the area where the injury
occurred.” 987 S.W.2d at 318. It then concluded that
employer control of the parking garage was present:
“The Library did not own, operate, or maintain the parking
structure, and it was used by the general public as well as
the Library. However, the evidence also indicates that the
Library leased approximately 144 spaces in the structure,
certainly making it a major customer with some degree of
influence over the owner. Furthermore, the Library
influenced claimant’s decision over where to park by
providing her with free parking in that particular garage
as part of its employee benefit package. If claimant had
chosen to park elsewhere in downtown Lexington, she would
have been required to pay the cost of parking herself.
Under those circumstances, we are persuaded that there were
sufficient indicia of employer control to support the ALJ’s
conclusion that the Library should be responsible for the
effects of an injury to an employee which occurred in the
garage.” (Emphasis added.) 987 S.W.2d at 318.
The Pierson court held that the Court of Appeals (and
Board) impermissibly reweighed the evidence in reaching a
different conclusion and reversed.
As for the purported final Thompson factor-“Linda was
subject to no greater risk than members of the general
public who used the parking garage”-we deem it irrelevant
once employer control of the property, the touchstone for
finding premises, has been found to exist. Even assuming
“greater risk” is relevant in the determination of premises,
however, we find it present in the case at bar. The Bank is
a large facility where all ingress and egress is restricted
to one door, with one walkway leading to one employee
parking lot that Rinke testified that one has to walk
through to get to and from work. The overwhelming majority
of the travelers are Bank employees, followed by employees
and patients of Wesley. Bank customers are understandably
scarce at a “secured” facility, particularly without a sign
informing the public that the building houses a bank.
Public traffic is therefore minimal. See County of Cook v.
Industrial Comm’n, 165 Ill. App. 3d 1005, 520 N.E.2d 896
(1988) (“Given these figures, it is doubtful that the small
lot would accommodate much, if any, use by the public. The
Commission could reasonably infer from the evidence that
the public was not exposed to the same dangers as
petitioner simply because the public rarely used the
lot.”); see also Jones v. Kansas State University, 279 Kan.
128, Syl. § 5, 106 P.3d 10 (2005) (court must accept
as true the evidence and all inferences to be drawn
therefrom which support or tend to support findings of
factfinder).
We appreciate the Court of Appeals’ concern about the
Board’s reliance upon Barnes because it involved an
expansive interpretation of employer premises, i.e.,
“premises of another that were in such proximity and
relation to the space leased by the employer as to be in
practical effect the employer’s premises.” (Emphasis
added.) Barnes, 233 Va. at 252. However, Pierson, 987
S.W.2d 316, did not contain such an expansive
interpretation. The court simply considered the leased
parking lot to be employer “premises” after reviewing the
presence of sufficient indicia of employer control.
Another such case is County of Cook v. Industrial Comm’n,
165 Ill. App. 3d 1005. There, the court examined a
“premises” situation similar to the case at bar. Claimant
worked as a judge’s legal secretary for Cook County, which
leased space in a building from the City of Harvey for
offices and courtrooms. While eating lunch, claimant was
stabbed in her car in a parking lot adjoining the building.
The ALJ found the injury occurred in a parking lot leased
by the county from the city for its employees’ use and the
injury was compensable. The Commission and district court
affirmed.
The County of Cook court held that her injuries would be
compensable if the parking lot were considered a part of
the employer’s premises. 165 Ill. App. 3d at 1008. Citing
C. Iber & Sons, Inc., v. Industrial Comm’n, 81 Ill. 2d 130,
407 N.E.2d 39 (1980), the court acknowledged: “Whether the
employer owns the parking lot is not always material. It is
sufficient if the lot is provided for the use of the
employee.” 165 Ill. App. 3d at 1008.
The court noted that the lease made no reference to parking
spaces but that the lot was adjacent to a city building
where the county leased office space. It also noted that
the lot contained about 40 spaces.
Claimant testified she had been assigned a permanent
parking space which was several feet from one of two
outside doors on that side of the building. The door was
for county personnel and would not open to the public. She
also testified that four spaces were assigned for certain
county employees. The remaining spaces were for city hall
parking. Other city employees could use the lot, but their
spaces were not assigned. There were 25 or 30 county
employees working in the courthouse, and they also used the
parking lot. She believed that the general public also used
the lot.
Claimant’s judge testified the lot was restricted to city
employees and county employees of the court, and the city
issued vehicle stickers to cars permitted to park there. He
also testified, however, that the public would park there.
The evidence disclosed that the city not only owned but
also maintained the lot. Accordingly, the employer county
argued that its claimant was not injured on its premises
because it did not establish, own, or maintain the parking
lot. In rejecting this argument, the court held: “The fact
that the employer leases space and the area where the
injury occurs is used by other tenants or the public does
not necessarily mean it is not the employer’s `premises.”’
165 Ill. App. 3d at 1009. Consequently, “[i]n view of these
facts, the Commission was entitled to find [in Illinois, as
an issue of fact] that the injury occurred on the
`employer’s premises’ for purposes of determining whether
the injury was sustained in the course of the employment.”
165 Ill. App. 3d at 1009.
Although not addressed by the County of Cook court, the
Illinois supreme court has held that “the employer’s
control or dominion over the parking lot is a significant
factor in the analysis” of determining whether an employee
is entitled to compensation sustained in a parking lot
“provided by” the employer. See Joiner v. Industrial
Comm’n, 337 Ill. App. 3d 812, 816, 786 N.E.2d 627 (2003)
(citing Doyle v. Industrial Comm’n, 95 Ill. 2d 103, 108,
447 N.E.2d 310 [1983]). Consequently, implicit in the
County of Cook decision is a finding of some degree of
control by the employer county over the city’s parking lot
where the claimant employee parked in an area reserved for
her and some other county employees.
As mentioned, the Board in the instant case determined that
Rinke was injured on the Bank’s premises because: (1) the
parking lot was adjacent to the building where she worked;
(2) the Bank leased a substantial portion of the building
and the parking lot; (3) the Bank was allocated a certain
portion of the lot, i.e., 737 of 757 parking spaces; (4)
the Bank specifically requested her to park in the
allocated spaces; and (5) she was injured in that
designated area of the parking lot leased by Bank.
Substantial competent evidence clearly supports the Board’s
findings (1), (2), (3), and (5). As for (4), the evidence
established that the Bank informed its employees they could
park anywhere in the lot but the reserved spaces for
Wesley. While Rinke’s testimony is not entirely clear
whether the Bank specifically requested her to park in its
allocated spaces, or whether the Bank simply directed her to
not park in the Wesley spaces, the lease agreement rider
provides that the Bank’s 737 reserved spaces would be
located within an area of the lot designated for that sole
purpose by the Bank. As a result, the Board’s finding is a
proper inference to be drawn from these pieces of evidence.
See Jones v. Kansas State University, 279 Kan. 128, Syl.
§ 5.
In short, substantial evidence not only supports these
Board findings, but also the Board’s ultimate finding that
Rinke’s injury occurred on the Bank’s premises. Because we
have determined that Rinke was injured on the Bank’s
premises, it is unnecessary to consider whether the
“special risk” exception to the going and coming rule
applies. The judgment of the Court of Appeals is reversed.
The judgment of the Board is affirmed. LUCKERT, J., not
participating.
LOCKETT, J., Retired, assigned.[fn1]
[fn1] REPORTER’S NOTE: Justices Tyler C. Lockett, Retired,
was appointed to hear case No. 93,868 vice Justice Luckert
pursuant to the authority vested in the Supreme Court by
K.S.A. 20-2616.