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Bommarito v. Industrial Com.





Appeal from the Circuit Court of Sangamon County, the Hon. James T. Londrigan, Judge, presiding.


The claimant, Jane Bommarito, applied for workmen's compensation benefits as a result of injuries sustained when, on her way to work, she fell in an alleyway behind the respondent's store. The arbitrator awarded compensation. The Industrial Commission did not hear any additional testimony. It did admit a notice of injury given to the city of Springfield. The Commission then reversed the arbitrator, and the circuit court of Sangamon County confirmed the Commission. The claimant has appealed pursuant to Rule 302(a). 73 Ill.2d R. 302(a).

The claimant was employed by the respondent, Bressmer's store, in Springfield on August 13, 1976. She had parked her car in a lot on 7th Street and proceeded to walk down one of the four entrances to the two alleyways which led to the rear door of Bressmer's store. A memorandum issued by the store's management, and admitted into evidence in this case, states that all employees were required to enter and exit the store through the rear door. Testimony of the claimant and several employees, including a store manager, is to the same effect. As the claimant came within eight feet of the rear door, she stepped into a hole in the alley and fell, fracturing her left elbow and spraining her right ankle and right wrist.

The question is whether these undisputed facts establish that the claimant suffered injuries arising out of and in the course of her employment. This question is one of law and the decision of the Commission is not binding upon this court. Osborn v. Industrial Com. (1971), 50 Ill.2d 150, 151; Williams v. Industrial Com. (1967), 38 Ill.2d 593, 595.

The claimant argues initially that one-half of the alleyway is owned by the respondent. There is no indication of such ownership in the record; thus, we are unable to assume, without some evidence, that the alleyway belongs to the respondent. Therefore, the claimant's injury must be deemed to have occurred off the respondent's premises.

The rule is clear and well established that when an employee incurs injuries at a place off the employer's premises while traveling to and from work, the injuries are not compensable unless the employee's presence at the place where the accident occurred was required in the performance of his duties. (Eisenberg v. Industrial Com. (1976), 65 Ill.2d 232, 233; Northwestern University v. Industrial Com. (1951), 409 Ill. 216, 220; Browne v. Industrial Com. (1967), 38 Ill.2d 193, 194.) Further, injuries incurred off the employer's premises are compensable only when the employee "is exposed to a risk common to the general public to a greater degree than other persons." (Deal v. Industrial Com. (1976), 65 Ill.2d 234, 239; Bartley v. Industrial Com. (1970), 45 Ill.2d 374, 376; Chmelik v. Vana (1964), 31 Ill.2d 272, 278.) "Moreover, if the risk or hazard is so increased by the employment, it does not matter that the injury is unusual, or unexpected, or that it is not peculiar to the employment." C.A. Dunham Co. v. Industrial Com. (1959), 16 Ill.2d 102, 105; Jefferson Ice Co. v. Industrial Com. (1949), 404 Ill. 290, 295; City of Chicago v. Industrial Com. (1945), 389 Ill. 592, 600.

Professor Larson has stated that where an injury took place in an area which is the sole or usual route to the employer's premises, and the route is attendant with a special risk or hazard, the hazard becomes part of the employment. Special hazards or risks encountered as a result of using a certain access route satisfy the "arising out of" requirement, whereas the employer's requirement that the employee use the route fulfills the "in the course of" element. Thus, any injuries encountered when both of the elements are met are compensable. (See 1 A. Larson, Workmen's Compensation sec. 15.13, at 4-18 to 4-34 (1978).) The United States Supreme Court has taken the same position. In Cudahy Packing Co. v. Parramore (1923), 263 U.S. 418, 68 L.Ed. 366, 44 S.Ct. 153, a stationary engineer was struck and killed by a train while crossing tracks which intersected the only access route to the employer's plant. The court stated: "The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree." (263 U.S. 418, 424, 68 L.Ed. 366, 369, 44 S.Ct. 153, 154.) The court went on to conclude that since the hazardous route over which the employee was forced to travel to get to work was a "necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected" (263 U.S. 418, 426, 68 L.Ed. 366, 370, 44 S.Ct. 153, 155), a necessary causal relation between the employment and the accident saved the Utah statute in question from a successful due process attack. The original award of compensation to the employee's widow was allowed to stand.

In the instant case it is not disputed that the employees were required to enter and exit the rear door of the store only. The stated purpose of the requirement was to permit the store's security guards to observe the employees in an effort to prevent theft.

It is not material that there are four entrances to the two alleyways leading to the rear door. Since the claimant was within eight feet of the rear door, she was in the area where the alleyways converge. Moreover, she testified that she could only park on 7th Street, making the entrance to the alley from that street her only practical means of access.

The claimant's undisputed testimony was that on the morning of her accident the alleyway was crowded with trucks "getting ready for a big sale at the time." She also testified that the alley was filled with debris. The claimant stated that she walked around a truck and tried to avoid walking into a car parked diagonally in the alley. It was as she walked around that car that she fell into the hole. William Sartain, the respondent's operations manager, testified that the respondent's warehouse was across the alley from the store. He further said that the trucks in the alley on the morning of August 13, 1976, were delivering merchandise to the warehouse for the respondent.

This case thus does not present a situation where a claimant freely chooses to use a certain route and is injured in doing so. (See Northwestern University v. Industrial Com. (1951), 409 Ill. 216, 221.) Instead the claimant was directed to enter through one door for the convenience of the respondent and, considering the hazardous and congested condition of the alley, to the substantial detriment of the employees. Injuries sustained off the employer's premises have been held compensable when the injuries occurred while the employee was acting under the direction of the employer or for his benefit or accommodation. (Osborn v. Industrial Com. (1971), 50 Ill.2d 150, 151.) We think the special risks or hazards encountered by the claimant, as a result of the respondent's order to enter through the rear door only, must be deemed to arise out of her employment. Moreover, the claimant's obedience to that order operates to place the claimant's consequent injuries within the course of her employment. If she had not obeyed the order, she could not have gained admittance to her place of employment. Accord, Deal v. Industrial Com. (1976), 65 Ill.2d 234, 239; 1 A. Larson, Workmen's Compensation sec. 15.13, at 4-24 to 4-25 (1978); Brienza v. Le Chase Construction Corp. (1962), 17 App. Div.2d 83, 85, 230 N.Y.S.2d 362, 363.

In Deal this court affirmed the Commission's award granted when the claimant suffered a fractured right arm after he was struck by a bicyclist as the claimant exited the employer's premises. At the time he was struck the claimant had one foot on a concrete apron which was under the control of the employer but as to which no evidence of ownership was admitted. This court stated:

"In this case, the only practical way for an employee to leave the respondent's premises was through the doorway which opened directly onto the sidewalk. Considering that employees leaving the office would be immediately exposed to the hazards of any type of traffic on the sidewalk, the Commission may have concluded that leaving by this doorway presented a situation involving a greater degree of risk of injury than that to which the general public was exposed. We cannot say that as a matter of law such an inference was ...

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