Russo v. Stop & Shop Companies, Inc.

The claimant was represented by Richard F. Tolisano, Esq., 2 Congress Street, Hartford, CT 06114-1024.

The respondent was represented by Robert S. Bystrowski, Esq., Morrison, Mahoney & Miller, 100 Pearl Street, Hartford, CT 06103.

This Petition for Review from the March 16, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and George A. Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer has petitioned for review from the March 16, 1999 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant’s slip and fall injury which occurred in a parking lot adjacent to the employer’s place of business, arose out of and in the course of her employment. In support of its appeal, the employer contends that the trial commissioner erred by concluding that the injury arose out of and in the course of the employment.

The trial commissioner found the following relevant facts. On October 26, 1997, the claimant was working for the employer and her shift concluded at 1:00 P.M. She punched out at 1:02 P.M. and proceeded through the general merchandise doors to cross the parking area to the center median to a sidewalk leading directly to her vehicle in the parking lot. As the claimant proceeded toward her vehicle, she tripped on a sidewalk. The claimant had parked her car to the left of the sidewalk where she fell, in a row of parking spaces where she customarily parked her car. Other employees and management of the respondent employer “customarily parked their vehicles in the same or adjacent parking spaces.” (Finding ¶ 7).

The shopping plaza where the employer’s store is located contains a number of other businesses. Pursuant to the employer’s lease, the plaza’s parking areas and sidewalks are defined as “Common Facilities.” Section 8.2(a) of said lease provides that the landlord would make Common Facilities, such as the parking areas and sidewalks, available and common for the respondent employer and for the other tenants at the plaza, their customers, and employees. (Finding ¶ 11). Under the lease, it was the responsibility of the landlord to maintain these common facilities.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of her employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). It is well settled that in order to be compensable, an injury must arise out of the employment and occur in the course of the employment. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505 (1998) (citing McNamara v. Hamden, 176 Conn. 547, 550-51 (1979)). “An injury occurs in the course of the employment if it takes place (1) within the period of the employment; (2) at a place the employee may reasonably be; and (3) while the employee reasonably is fulfilling the duties of the employment or doing something incidental to it.” Id. at 506 (citing Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997)).

In support of its appeal, the employer contends that the trial commissioner erred in concluding that the claimant’s injury arose out of and during the course of her employment because the employer did not “own or maintain the parking lot” and because the employer “never directed or instructed the Claimant about where she could or could not park.” (Employer’s Brief at p. 5). In Bogrette v. Merriam Motors, 3538 CRB-8-97-2 (July 22, 1998), the board explained as follows:

In Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 (1988), an assault to a claimant in an indoor parking garage was found compensable where the parking area was provided for the tenants of a shopping mall, including the respondent employer. In that case, as in the case at hand, the parking area was a portion of the common areas leased by the respondent employer. The board cited 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) for the proposition that “an employer parking lot maintained for the convenience of employer and employee is an extension of the employment premises.”

In the instant case, the trial commissioner’s decision indicates that the claimant was at a place she may reasonably have been, as the trial commissioner specifically found that the area where the claimant parked was “on premises contiguous to the Stop & Shop Supermarket where the claimant worked” (Finding ¶ B) and that this area was where the claimant, other employees, and management “customarily parked.” (Finding ¶ C). The trial commissioner concluded that the area where the claimant parked “was known to the employer and an incidental part of her employment.” (Finding ¶ E). Moreover, the trial commissioner found that the employer benefited by the claimant parking in this area because it did not take up space in front of the store where regular customers would park. These findings, which are based upon evidence in the record, adequately support the trial commissioner’s conclusion that the claimant’s injury arose out of and in the course of her employment. We thus may not disturb the trial commissioner’s decision. See Fair, supra.