Summary
In Chavarriaga v. Pathmark, 5 Conn. Workers' Comp. Rev. Op. 16, 363 CRD-7-84 (March 24, 1988), the claimant, who worked the night shift, was abducted at gun point from the employer's indoor parking garage and taken to a nearby cemetery where his abductor shot him in the face.
Summary of this case from Hernandez v. Pizzaria 101 and Family, NoOpinion
CASE NO. 363 CRD-7-84
MARCH 24, 1988
The claimant was represented by Norton Feinstein, Esq., Feinstein Hermann.
The respondents were represented by Daniel McDonald, Esq., Coles, O'Connell, Dolan McDonald, P.C.
This Petition for Review from the November 15, 1984 Finding and Award of the Commissioner for the Seventh District was heard September 26, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and A. Thomas White, Jr.
FINDING AND AWARD
The Seventh District Finding and Award of November 15, 1984 is hereby affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant, a night crew chief, worked an 11:00 p.m. to 8:00 a.m. shift at the employer's store located on the ground floor of a shopping mall. Mall parking was provided in an outdoor lot as well as an indoor garage.
On March 26, 1984 at or about 10:50 p.m., Claimant parked in the indoor garage as directed by a store supervisor. After dismounting and while unloading a box he was approached by a person unknown to him carrying a handgun. The stranger took his truck keys, handcuffed his hands behind his back and forced him back into the truck. Upon the assailant's request Claimant gave his name, but the stranger swore at him and drove the truck out of the mall garage to a nearby cemetery, where with the gun at Claimant's head he pulled the trigger three times. Twice the gun failed to fire, but it discharged on the third attempt, wounding the worker in the right and left cheeks with resulting injuries to mouth, tongue and teeth.
Respondents have appealed the Seventh District's November 15, 1984 Finding and Award contending that the assault in the garage and the cemetery did not arise out of and in the course of employment. They contend the conclusion that "the claimant sustained said accidental injuries at a point in the parking lot of the Norwalk Mall, which parking lot was a portion of the Common Area leased by the respondent-employer, thus being sufficiently associated with the employer's premises to be considered as being a part of the employer's premises" was not legally supported by the facts found.
Their contention that the parking lot was not part of the employer's premises really begs the question. Hughes v. American Brass, 141 Conn. 231 (1954), was a case similar to this one. In Hughes, Claimant had fallen on some ice and snow in the parking lot of the defendant-employer. Respondent argued that the injury did not arise out of and in the course of the employment as at the time of injury claimant "was doing something for his sole individual benefit and. . . . The defendant had no interest whatsoever in his activity", Id. at 234. The Connecticut Supreme Court held:
"Employment may exist before actual work begins. . . . An employer may by his dealings with an employee . . . annex to the actual performance of the work, as an incident to the employment, the going to or departure from the work. To do this, it is not necessary that the employer authorize the use of a particular means or method, although that element, if present, is important. It is enough that the going to and from work across the employer's property can be reasonably held to be an incident to the employment within the contemplation of the parties because the employer knew that it was customary and acquiesced in it and because it was for his benefit in furthering the employment." (citation omitted)
Id. at 234.
In the instant case, the claimant parked his car where a supervisor had directed. Whether or not the site where claimant was directed to park his vehicle was a part of the demised premises or a common area is not a factor distinguishing the case from the Hughes holding. As this tribunal noted in Bushey v. Iseli Co., 2 Conn. Workers' Comp. Rev. Op. 20, 21 120 CRD-5-82 (1983), aff'd, 3 Conn. App. 370 (1985), cert. denied, 196 Conn. 803 (1985), "We agree that an employer parking lot maintained for the convenience of employer and employee is an extension of the employment premises". Clearly, from the facts found it is a reasonable conclusion the parking lot was indeed an area annexed and used by the employees as directed by the defendant and under the dicta of Bushey quoted above, the parking lot was an extension of the employment premises.
Respondents additionally argue that the assault did not arise out of employment because it was perpetrated upon the claimant for purely personal reasons and not for any reason stemming from Claimant's employment; i.e. there was no causal connection between the assault and the employment. We disagree. It was part of the employment and because of it that the claimant had parked his car in the area where the assault initiated.
This tribunal in Fair v. People's Savings Bank, 289 CRD-4-83 (decided May 21, 1987) reviewed the law involving assaults to employees in the workplace. Among the Connecticut decisions there cited was Stulginski v. Waterbury Rolling Mills, 124 Conn. 355 (1938). In Stulginski, the court permitted a claimant to recover benefits when he was attacked by a fellow employee as a result of a personal quarrel. The Stulginski court noted that "The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency. . . .'", Stulginski, supra, at 362 quoting Madden's Case, 222 Mass. 487, 495, 111 N.E. 379, 382 (1916). In the instant case, as in Fair, it appears the claimant was put into a zone of danger by virtue the employer's parking procedures.
The Commissioner's conclusions of law were therefore correct relying on findings of fact supported by the evidence and not based on an "incorrect application of the law to the subordinate facts", Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). We, therefore, affirm the Seventh District's November 15, 1984 Finding and Award.
Commissioners Andrew P. Denuzze and A. Thomas White, Jr. concur.