GENERAL INSURANCE COMPANY OF AMERICA v. WORKERS COMPENSATION APPEALS BOARD (1975)

Edward Chairez was struck and killed by an automobile immediately in front of his employment premises as he arrived for work. His widow, Lilia Chairez, filed an application for death benefits. The compensation judge concluded that the death arose out of and occurred in the course of employment (Lab.Code, § 3600) and was not excluded by the judge-made ‘going and coming rule.’ The appeals board, one member dissenting, denied reconsideration. We summarily denied a petition for writ of review. Our Supreme Court granted a hearing and transferred the case to us with directions to issue a writ of review. That order was unadorned by reference to decisional or other authority. We have issued a writ of review, examined the entire record, and heard oral argument. We remain of the opinion that the death was compensable and affirm the award.

Facts

We recite the facts as they were made to appear in the compensation proceedings.

The deceased had worked for his employer, Martin Rents, Inc., for several years as a delivery and service man. He worked six days each week, Monday through Saturday, his workday beginning at 8 a. m. He commuted about five miles in his own automobile from his residence on Manhattan Place, Los Angeles, to the place of employment located on South La Cienga Boulevard, Los Angeles.

He usually left home about 7:30 a. m., but customarily on Saturdays he would leave somewhat earlier. It was his habit to arrive before the workday began to make coffee for himself and the other employees. The coffee and urn were provided by the employer.

On the date in question, Saturday, March 16, 1974, he left home at approximately 6:15 a. m. That date was during the period of the gasoline shortage and he told his wife that he was leaving earlier as he did not want to stay in long lines at the gasoline station.

As reconstructed in the police report and from the account of several eyewitnesses, the fatal accident occurred at 7:15 a. m. He had parked his car northbound on La Cienega Boulevard immediately across the sidewalk from the front door of the place of employment. At that point, La Cienega has three northbound lanes, including the parking lane. Deceased was standing next to his car when both he and his automobile were struck by an errant and uninsured motorist. The other automobile struck or sideswiped his automobile from the rear and then struck and dragged the deceased's body a distance of some 70 feet.

The business was one for the rental and sale of medical equipment. The premises were a combination office and store. The building had other tenants, and to the side and rear there was a parking lot consisting of 14 spaces. Two or three of these spaces were allotted to Martin Rents but those spaces were used for company trucks and were never available for the private vehicles of the persons working there. The employees customarily parked on side streets because of the absence of parking restrictions on those streets. On La Cienega itself, there was a one-hour parking restriction on weekdays and thus the employees did not park there. The one-hour restriction was not applicable on Sunday and apparently also was not regarded as applicable, or at least was not honored, on Saturdays. Nonetheless, some of the employees parked upon the side streets even on Saturdays and Sundays.

On this and other evidence, the compensation judge concluded that the deceased had parked his automobile on La Cienega preparatory to opening the front door, making the coffee, and beginning the day's work.

Several of the employees, including the deceased, had keys to the premises, and it was the practice for whoever arrived first to open the establishment.

There were four entrances to the employment premises but only two of those were used. It was possible to enter through a warehouse at the rear of the building. That was commonly done by later arriving employees who had parked on the side streets. They could thus enter the premises without going on or across La Cienega. The other entrance was at the front on La Cienega and it seems apparent that the deceased had parked as he did to open and enter through that entrance. The compensation judge so concluded.

Discussion

The history of California's ‘going and coming rule’ has recently been traced, and its applicability and nonapplicability explained by our Supreme Court in Hinojosa v. Workmen's Comp. Appeals Bd., 8 Cal.3d 150, 104 Cal.Rptr. 456, 501 P.2d 1176.¹ We are admonished in that decision to avoid a ‘rigid and automatic’ application of the rule and to follow ‘a more refined definition, specifying with more exactitude the circumstances under which Workmen's Compensation covers death and injury in transit and those in which it does not.’ Unfortunately, Hinojosa is not directly helpful to us in this instance because that decision dealt generally with the distinction between ‘the ordinary, local commutes' that are not covered from those ‘extraordinary transits' in which the employer has some interest or derives some benefit so as to bring the entire trip within the ‘course of employment.’ In contrast, here we deal with a concededly ordinary and local commute and must resolve the question whether that commute had ended or at least had come to a point at which job-connected hazards and work-related dangers had come to predominate. The case is a borderline one if one works within the confines of the ‘rigid and automatic’ ‘going and coming rule’ itself. For reasons we shall attempt to explain, we do not choose to so work and, in this particular case, take a broader view of both the case and the coming and going rule. In short, we ask whether, having all the facts and circumstances in mind, the death can reasonably be said to have ‘arisen out of the employment.’

In decisions both early and recent (see Hinojosa, supra, 8 Cal.3d at pp. 155–156, 104 Cal.Rptr. at p. 460, 501 P.2d at p. 1180), we are instructed that “[i]n view of this state's policy of liberal construction in favor of the employee,' . . . any reasonable doubt as to the applicability of the going and coming doctrine must be resolved in the employee's favor.' We construe ‘doubt’ in this connection as something more than mere equivocation in decision-makers' minds. We are of the view that ‘liberality’ in this connection means something other than ‘close’ to a rule or circumstance of coverage or ‘close’ to escape form a rule of noncoverage.

Before stating our broader thesis as it appertains to this case, we turn to one of the many ‘exceptions' to the going and coming rule. The compensation judge in this case relied primarily upon what is generally referred to as the ‘special risk’ doctrine. That sub-rule is to the effect that even a portion of an otherwise excluded ‘commute’ (usually its beginning or its end) is within the ambit of coverage if it can be said that a ‘special risk’ attributable to the employment or the employment premises has had a significant causal relationship to the accident. The decisions in this genre are impressive as to the case at bench because they emphasize that the ‘risk’ that is ‘special’ may be of the same kind and character as those shared by other ‘commuters.’

The most quoted of the ‘special risk’ decisions are Greydanus v. Industrial Acc. Com., 63 Cal.2d 490, 47 Cal.Rptr. 384, 407 P.2d 296; spacific Indem. Co. v. Industrial Acc. Com. (Henslick), 28 Cal.2d 329, 170 P.2d 18; and Freire v. Matson Navigation Co., 19 Cal.2d 8, 118 P.2d 809. Each of these decisions contains language that first appeared in Freire, supra, 19 Cal.2d at p. 12, 118 P.2d at p. 811: ‘The fact that an accident happens upon a public road and the danger is one to which the general public is likewise exposed, however, 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.’

So with the case at bench, the risk (of being struck or sideswiped) was one common to traffic and motoring generally, but the peculiarities, all work-related, by which this deceased came to be in the place at that time are many and marked.

The compensation judge aptly stated the potential applicability of the ‘special risk‘ exception to the case at bench as follows: ‘To accomplish this [the opening of the premises] conveniently and expeditiously it may be inferred that the employer contemplated that employees, prohibited from utilizing company owned parking spaces in the rear of the building which were reserved for customers, would seek out and utilize street parking most convenient to the premises, namely, parking directly in front of the establishment, at least on days when front parking was not restricted as on the day in question. That contemplation carried with it all the hazards implicit in that particular location . . .. [¶] When the employee parked his car immediately at the front door of the employer's premises for the purpose of entering by using the employer's key and preparing coffee for himself and other employees in anticipation of the forthcoming work day, it is reasonable to conclude that all of his activities from the moment he stopped his car at that location were within the reasonable contemplation of his employment and were for the benefit of his employer.’

There are other exceptions to the going and coming rule, somewhat akin to the ‘special risk’ exception, that are applicable by analogy to the case at bench. These include the rule that the ‘means of ingress and egress' are considered covered even though those ‘means' are public ways. (See Freire v. Matson Navigation Co., supra, 19 Cal.2d 8, 118 P.2d 809.) More simply, the ‘commute’ had come to an end and the deceased employee had, at the moment of the accident, already commenced upon his duties, particularly that of opening up the establishment.

We are not, moreover, limited to the confines of the going and coming rule. The analysis expounded by Larson (1 Larson, Workmen's Compensation Law (1972 ed.) §§ 15.00–15.15) is persuasive in the case at bench. Larson observes that throughout the United States so many ‘close’ cases have arisen that there have been persistent ‘attempts to broaden the premises rule’ (i. e., the rule that coverage is limited to the employment premises themselves). He also observes, very aptly, that: ‘It is a familiar problem in law, when a sharp, objective, and perhaps somewhat arbitrary line has been drawn, producing the kind of distinctions just cited, to encounter demands that the line be blurred a little to take care of the closest cases.’

Rejecting suggestions that employees be protected for a ‘reasonable distance’ before reaching or after having left the employer's premises because they ‘only raise a new problem without solving the first,’ Larson states: ‘What is needed is a working principle which will serve as a guide to identify those exceptional cases in which the purposes of workmen's compensation require some departure from the literal premises concept, and in which it is administratively practical to interpret and apply the exception.’ Larson supplies the working principle: ‘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. [¶] This 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 proximity, 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.'

Larson's analysis is a particularization of the general ‘quantum theory of work connection’ theory (1 Larson, Workmen's Compensation Law (1972 ed.) §§ 29.00, 29.10) that we have heretofore found useful in relation to other types of coverage cases. (See Lizama v. Workmen's Comp. Appeals Bd., 40 Cal.App.3d 363, 115 Cal.Rptr. 267.)

To paraphrase Larson, from our study of this record, we have satisfied ourselves that the facts, saturated as they are with ‘work connectedness,’ constitute such a distinct ‘arising out of’ and ‘causal connection’ that the compensation judge and appeals board were amply warranted in finding coverage in this case.

Finally, we observe that coverage in the case at bench seems virtually dictated if rotundity, rather than a jagged periphery, is to be maintained as to the going and coming rule generally. (See McCarty v. Workmen's Comp. Appeals Bd., 12 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617; Dimmig v. Workmen's Comp. Appeals Bd., 6 Cal.3d 860, 101 Cal.Rptr. 105, 495 P.2d 433.)

The award is affirmed.

FOOTNOTES

1.  Statements of the rule vary only slightly. In limiting the rule to the ‘ordinary, local commute,’ Hinojosa, supra, 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 461, 501 P.2d 1176, 1181, uses this language: ‘[T]he courts have held non-compensable the injury that occurs during a local commute enroute to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances. The decisions have thereby excluded the ordinary, local commute that marks the daily transit of the mass of workers to and from their jobs; the employment, there, plays no special role in the requisites of portage except the normal need of the presence of the person for the performance of the work.’Hanna's statement (2 Cal.Law of Employee Injuries and Workmen's Compensation (2d ed. rev. 1973), § 9.03[3] subd. [b]) is this: ‘Common among off-premises injuries are those which occur during travel to and from work. It is well settled that employees who suffer injuries while going to or returning from their place of work are not, in the absence of special circumstances, entitled to compensation benefits.’Herlick's (Cal. Workmen's Compensation Law (1970) § 10.14) is similar: ‘While en route or away from work, the employee is not considered as being in the course of his employment. The employment relationship is deemed suspended until the employee returns to his place of work. Thus, injuries which occur during such travel are not compensable.’Witkin's (2 Summary of Cal.Law (8th ed.) p. 947) is also: ‘Under the ‘going and coming rule,’ the employee is not in the course of his employment, and compensation is denied, where the injury or death is sustained while on the way to work or returning from it.'Larson ties his statement (1 Workmen's Compensation Law (1972 ed.) §§ 14.00, 15.00) to the concept of ‘course of employment’ and to the employment premises: ‘An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee, reasonably, may be, and while he is fulfilling his duties or engaged in doing something incidental thereto. . . . [¶] As to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, it is not compensable, subject to several exceptions. Underlying some of these exceptions is the principle that course of employment should extend to any injury which occurred at a point where the employee was within range of dangers associated with the employment.’

THE COURT: