Fudge v. University of Oklahoma

Fudge v. University of Oklahoma
1983 OK 67
673 P.2d 149
Case Number: 58089
Decided: 06/07/1983
Supreme Court of Oklahoma

GLORIA FUDGE, PETITIONER,
v.
UNIVERSITY OF OKLAHOMA AND STATE INSURANCE FUND, RESPONDENTS.

On Certiorari to the Court of Appeals, Div. 1.

¶0 A proceeding by claimant to review order of the Worker's Compensation Court, Charles L. Cashion, Judge - affirmed by a review panel (composed of Judges Mary Elizabeth Cox. Dick Lynn and Larry C. Brawner) and by the Court of Appeals - which denies compensation upon a finding that the accident in controversy did not arise out of and in the course of employment. Certiorari granted and

OPINION OF THE COURT OF APPEALS AND ORDER OF THE TRIAL TRIBUNAL VACATED AND CLAIM REMANDED WITH DIRECTIONS

Ben A. Goff, Gloyd L. McCoy, Oklahoma City, for petitioner.

William C. Doty, Oklahoma City, for respondent State Ins. Fund.

OPALA, Justice:

[673 P.2d 150]

¶1 The issue presented on certiorari is whether a worker's injury arose out of and in the course of employment. We answer in the affirmative and hold that when an employee must of necessity cross a public street in order to reach his car in the employer-provided parking lot, traffic on that street constitutes an employer-created hazard and injury suffered while crossing it in going to or coming from lunch is deemed to arise out of and in the course of employment.

¶2 Gloria Fudge [Claimant] was employed as a secretary by the University of Oklahoma at its physical plant located on the main campus in Norman, Oklahoma. She parked her car in an employer-provided parking lot.

¶3 The trial judge found that the injury sustained did not arise out of or [sic] in the course of claimant's employment. The order denying compensation was affirmed by a review panel and sustained by the Court of Appeals. The latter was of the view that Thomas v. Keith Hensel Optical Labs

¶4 The Worker's Compensation Act [Act] allows benefits only for injuries resulting from activity that both "arises out of" and "in the course of" employment.

¶5 In Thomas the claimant left five minutes early for lunch to clear ice from his car windows. He sustained an injury when he slipped and fell on the ice.

¶6 In Swanson the employer acquiesced in the employees' use of a landlord-provided parking lot.

¶7 The case at bar is clearly governed by the rule in Swanson. The facts are undisputed that the claimant was taking a regular lunch break, and that, as a matter of necessity, she had to cross Felgar Street in order to reach her car parked in an employer-provided area. She was subject to the special hazard of traffic in the street whenever she crossed it while coming to and going from work. The injuries received were clearly the result of activity arising out of and in the course of her employment. Absent unusual circumstances, such as those present in Thomas, a worker is not deemed to be without the scope of his employment while he is proceeding, during a regular lunch break, to his car that is parked in the employer-provided parking lot.

¶8 The employer urges that Hegwood v. Pittman,

¶9 In Hegwood, the claimant, a cafeteria worker, left work without permission in order to turn her car lights off. The car was parked on a public street and she was injured outside of her employer's premises.

¶10 In Novak, the injury was sustained upon claimant's return from lunch. She fell in a public street immediately after alighting from an automobile. The fall was caused [673 P.2d 152] by loose gravel left by city street workers directly in front of the entrance to the building where she worked. The court held that the claimant did not come within any exception to the general rule that an injury suffered while going to and from the work-place is not one arising out of and in the course of his employment. In the present case, the claimant necessarily had to cross Felgar Street in order to reach her office and return to her car.

¶11 On careful review of the record, we find here no competent evidence to support the order denying compensation. The opinion of the Court of Appeals and the trial tribunal's decision are accordingly vacated. The claim is remanded for further proceedings not inconsistent with this pronouncement.

¶12 IRWIN, LAVENDER, HARGRAVE and WILSON, JJ., concur.

¶13 SIMMS, V.C.J., and HODGES, J., concur in result.

Footnotes:

1 It is undisputed that the accident occurred, and claimant's car was parked, on the campus premises. The claim appears to have been submitted on this theory. In her certiorari petition and brief claimant refers to the parking area in terms of "employer provided" and "employer furnished". This fact was duly noted by the Court of Appeals in its opinion herein. At no stage of the case has the employer sought to refute that at the time of her injury claimant's car was parked in an area provided for employees' vehicles. A fact conceded in the briefs may be treated as supplementing the record. Ramer v. State, Okl., 302 P.2d 139, 140 [1956]; Greenwood v. Lyles & Buckner, Inc., Okl., 329 P.2d 1063, 1067 [1958].

2 Okl., 653 P.2d 201 [1982].

3 Okl., 361 P.2d 842 [1961].

4 85 O.S. 1981 § 11 .

5 R.J. Allison v. Boling, 192 Okl. 213, 134 P.2d 980, 982 [1943]; Hegwood v. Pittman, 471 P.2d 888, 891 [Okl. 1970]; Thomas v. Keith Hensel Optical Labs, supra note 2 at 202.

6 Max E. Landry, Inc. v. Treadway, Okl., 421 P.2d 829, 831 [1966]; Thomas v. Keith Hensel Optical Labs, supra note 2 at 203.

7 Belscot Family Center v. Sapcut, Okl., 509 P.2d 905, 907 [1973]; Thomas v. Keith Hensel Optical Labs, supra note 2 at 203.

8 Thomas v. Keith Hensel Optical Labs, supra note 2 at 203. Because she had to attend a seminar that morning, the claimant, when injured, was leaving for lunch one hour later than normal. The delay does not affect her claim. She was admittedly allowed a lunch break during her work day.

9 Thomas v. Keith Hensel Optical Labs, supra note 2 at 203.

10 Thomas v. Keith Hensel Optical Labs, supra note 2 at 203.

11 Thomas v. Keith Hensel Optical Labs, supra note 2 at 203.

12 Swanson v. General Paint Company, supra note 3 at 844.

13 Swanson v. General Paint Company, supra note 3 at 845.

14 Swanson v. General Paint Company, supra note 3.

15 Supra note 5.

16 Okl., 301 P.2d 234 [1956].

17 Hegwood v. Pittman, supra note 5 at 890.