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District Court of Appeal, Second District, Division 4, California.

R. G. GREYDANUS, an individual, and Mission Insurance Company, successor to Enterprise Insurance Company, a corporation, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and Dominique Basterretche, Respondents.

Civ. 28999.

Decided: April 16, 1965

McLaughlin, Evans, Dalbey & Cumming, Los Angeles, for petitioners. Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Industrial Accident Commission. Jaffee, Mallery, Thompson, Talbott & Lemaster, Pomona, for respondent Dominique Basterretche.

Petitioners seek review and annulment of an award of compensation to respondent Basterretche.

There is no dispute as to the facts upon which the award was made, and they are as follows: Greydanus owned and operated a dairy farm located at 16221 Euclid Avenue, Chino, California. Euclid Avenue is a two-lane public highway divided by a single white line running down its center. The highway runs north and south along the westerly line of the dairy farm. There are three entrances onto the dairy farm from Euclid Avenue. The northernmost entrance leads to a barn where employees of the dairy would normally report for work. The next entrance south of the most northern entrance leads to the south side of the barn. The third and most southerly entrance leads to the residence of the owner of the dairy. Basterretche was employed as a milker on the dairy farm and had been working there in this capacity for approximately two years prior to the accident here under consideration. On March 20, 1963, at about 4:30 a. m., Basterretche was driving his pickup truck on his way to work and was traveling south in the westerly lane of Euclid Avenue. When he arrived at a place on the public highway opposite the northernmost entrance to the dairy farm, he started to make a left turn across the center dividing line, intending to enter upon his employer's property at this point. While in the process of making his turn, and before he reached his employer's property, his vehicle was struck by a semi-truck and tractor which was also traveling south on Euclid Avenue in the easterly lane and which was in the process of overtaking and passing Basterretche on his left side. The physical evidence of the accident disclosed that the impact occurred in the easterly lane of Euclid Avenue and at no time did any portion of Basterretche's vehicle enter upon the premises of his employer. The distance from the employee's home to the dairy was approximately six miles and required the use of two public highways, Oak Street and Riverside Drive, in addition to Euclid Avenue. Basterretche sustained injuries in this accident for which he was awarded compensation based upon the finding that such injuries arose out of and occurred in the course of his employment.

The decision of the referee in granting the award, and the Industrial Accident Commission in denying the petition for reconsideration, was based upon the holding that the ‘injury occurred when he had actually entered into the zone of his employment.’ The referee in his memorandum on decision is quoted as follows, ‘The line of distinction as to whether the wheels were, or were not in the drive seems artificial. The significant fact appears to be that a left turn was required to enter into the employer's premises.

‘This referee would agree with both counsel that a line must be drawn somewhere in the ‘going and coming rule.’ It would appear that it was appropriate to draw such a line when the employee is either parallel with, or making a turn into the employer's premises.'

The petitioners contend that the facts bring the case within the doctrine of the coming and going rule. The commission and respondent contend that the area where the accident occurred must be considered as an extension of the employer's premises and therefore the injury is compensable.

The applicable rules are set forth in Pacific Indem. Co. v. Industrial Acc. Com., 28 Cal.2d 329, at 335, 170 P.2d 18, at 22, as follows: ‘In compensation law the general rule is well established that injuries received by an employee while going to or coming from his place of work are not compensable. (Citations.) However, in applying this general rule to borderline cases, the term ‘employment’ has been held to include ‘not only the doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done.’ (Citations.) In further clarification of the general rule it has been held 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 in the course of the employment. (Citations.) Also, it is well settled that if the employment creates a special risk, an employee is entitled to compensation for injuries sustained within the field of that risk. The employee may be subject to such a risk as soon as he enters the employer's premises, or the necessary means of access thereto, even when the latter is not under the employer's control or management. (Citations.)'

In affirming the award in the above-cited case, the court stated (p. 337, 170 P.2d p. 23), ‘In the present case the evidence shows a collision between the employee's automobile and another car while he was entering a parking lot adjacent to the place of work and maintained by the employer for the exclusive use of employees. The evidence shows that the Henslick vehicle was halfway into the lot when the impact occurred and was shoved against another automobile parked on the lot. Under such circumstances, it may reasonably be said that, at the time of the accident, the employee was on premises maintained by the employer.

‘Also there is evidence that the parking lot was a means of access to the place of work. It was necessary for an employee, approaching from the direction traveled by Henslick, to cross in front of a line of considerable on-coming traffic in order to reach the lot. According to the testimony, employees, after identification at the lot, parked their automobiles, obtained time cards and went on to their particular stations. The lot was adjacent to the shipyards, which evidently covered a considerable area, and was a part of its necessary activities. (Citation.)’

The court stated further ‘* * * the fact that an accident happens upon a public road and the danger is one to which the general public is likewise exposed, does not preclude the existence of a causal relationship between the accident and the employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree. (Citation.) Also it is of no particular significance that the entrance used by the employee is not the exclusive means of access provided. (Citation.) Applying these rules, the automobile collision arose out of and while Henslick was acting in the course of his employment.’ (P. 338, 170 P.2d p. 24.)

In Freire v. Matson Navigation Co., 19 Cal.2d 8, 118 P.2d 809, a janitor had taken a taxicab to the pier where the ship upon which he worked was berthed. As he stepped from the cab, he was struck by an automobile driven by a fellow employee. The area where the accident occurred was under the control and management of the Harbor Commission, but constituted the only means of reaching the pier where the ship of the employer was moored. The area was used as a thoroughfare for trucks, drays, other vehicles, stevedores, seamen, passengers, and visitors, as a parking place and generally to facilitate the handling of cargoes and passengers. Traffic in the area was controlled by special officers of the employer. In holding that Freire had sustained an injury compensable under the Workmen's Compensation Act, the court stated, ‘It is well settled that while an employee is ordinarily not entitled to workmen's compensation for an injury sustained in going to or departing from work, he is entitled to compensation if the employment creates a special risk, for injuries sustained within the field of that risk. Such a risk may attend the employee as soon as he enters the employer's premises or the necessary means of access thereto, even when the latter is not under the employer's control or management. (Citations.)

‘It is evident from the facts in the instant case that the bulkhead is ‘the means of access' to the pier ‘required and authorized by the company’, that it is ‘in fact, dominant as to user in the employer, servient to its purposes, and intimately associated with its plant as a part of its necessary establishment.’' (Pp. 11, 12, 118 P.2d p. 811.)

The Supreme Court in Freire, in support of its conclusion, cited Judson Mfg. Co. v. Industrial Acc. Com., 181 Cal. 300, 184 P. 1, where the employee was killed when struck by a railroad engine while walking on a path which led from the dead end of a public street across the railroad tracks to the gate of his employer's factory. In sustaining the award, the court stated that the path was the means of access required and authorized by the company. It was not a public highway. The crossing was, in fact, dominant as to user in the employer, servient to its purposes, and intimately associated with its plant as a part of its necessary establishment, and the company had claimed a lawful easement over the crossing for the purposes of the plant. The court also cited State Comp. Ins. Fund v. Indus. Acc. Com., 194 Cal. 28, 227 P. 168, where the employee was awarded compensation for injuries sustained when she fell on a public sidewalk immediately outside the entrance to her employer's premises. The contract of employment required the employee to use this particular entrance as a means of ingress and egress to and from her place of employment and and facts disclosed that the injury was caused by the slippery condition of the entrance and the adjoining runway over the sidewalk which condition was created by the acts of other employees. The court also cited Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, where it was held that a causal relationship could be found between the employment and the death of an employee killed while crossing a railroad track on a public road that constituted the customary and only practical way of reaching the employer's plant.

The following statements are found in 1 Larson's Workmen's Compensation Law, p. 201, relating to the extension of the premises rule, ‘One may now pause and ask: what is the principle behind these exceptions to the premises rule? It is clearly not a conceptual one based on traditional tests of employment relation for respondeat superior or other purposes. There is no control whatever over the employee during the critical period, nor is he being paid wages during this time. He is not advancing his master's interests any more than other employees returning home. In short, for respondeat superior purposes he would not be in the course of his employment.

‘The answer here suggested is this: in this instance, as in many others, the concept of ‘course of employment’ follows that of ‘arising out of employment’; that is, the employment-connected risk is first recognized, and then a course-of-employment theory must be devised to permit compensation for that obviously occupational risk.

‘That is exactly what has happened here. Claimant has been subjected to a particular risk because of his employment, the risk of crossing certain railway tracks near the plant entrance, for example. Since it is so obvious that a causal relation exists between the work and the hazard, the always-ill-fitting course of employment concept has got to be stretched at least far enough to prevent the injustice of denying compensation for an injury admittedly caused by the employment.

‘We have, then, a workable explanation of the exception to the premises rule: it is not nearness, or reasonable distance, or even the identifying of surrounding areas with the premises; it is simply that, when a court has satisfied itself that there is a distinct ‘arising out of’ or causal connection between the conditions under which claimant must approach and leave the premises and the occurrence of the injury, it may hold that the course of employment extends as far as those conditions extend.' ‘Before any court breaks down one wall, ‘Before any court breaks down one wall, it ought to be prepared to define where it proposes to erect the next wall. Before the old ‘premises' limitation is discarded, the court must ask itself, ‘How far are we prepared to go? To the surrounding sidewalk? Across the surrounding highway? The sidewalk on the opposite side of the street? Into the next block?’

‘It is significant that practically all successful off-the-premises cases here involved either a dangerous railroad crossing lying in the normal route of access to the plant, or an icy sidewalk adjacent to the premises and therefore identified with the premises in the sense that the employer should have removed the ice. In other words, there has always been a very special danger. It is submitted that the extended course of employment is valid only for that danger, and not for all possible accidents.’

In the case before us the undisputed facts show that the accident in which the employee suffered injury occurred on a public highway the easterly boundary of which was coterminus with the westerly boundary of the employer's property. There is no evidence upon which a finding could be sustained that the employer's property or the entrances from the public highway onto such property, were constructed or maintained in relation to the highway, in such manner as to create a danger peculiar to their use or to expose one entering thereon to danger in an abnormal degree. The employer exercised no management or control over the area where the accident occurred. The public highway which abutted the employer's dairy farm cannot be said to be dominant as to user in the employer, servient to his purposes, and intimately associated with his dairy farm as a part of his establishment. The evidence here goes no further than to show that the employer, as owner of property which abutted upon a public highway possessed and exercised no greater or different rights or control, with respect thereto than is possessed or exercised by any other owner of property similarly situated.

It is a matter of common knowledge that everyone who drives a motor vehicle upon a public highway exposes himself to the ordinary risks of an accident attendant thereon. The employee here was exposed to no greater or special risk than the ordinary motorist would have been exposed to under similar circumstances.

The bare fact that the employee here was required to make a left turn from a public highway in order to enter the premises of his employer, under the circumstances here shown, did not as a matter of law, peculiarly subject him to an abnormal hazard connected with his employment.

Under the facts of this case the premises of the employer, or the zone of employment, should not be extended to encompass the area of the public highway where the accident in which the employee was injured, occurred.

The award is annulled.



FRAMPTON, Justice pro tem.** FN** Assigned by Chairman of the Judicial Council.

FILES, P. J. and JEFFERSON, J., concur.

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