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Seville v. Holland America Line Westours, Inc. (5/14/99), 977 P 2d 103
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JANET A. SEVILLE, )
) Supreme Court No. S-8270
Appellant, )
) Superior Court No.
v. ) 3AN-96-03868 CI
)
HOLLAND AMERICA LINE ) O P I N I O N
WESTOURS, INC., )
) [No. 5113 - May 14, 1999]
Appellee. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Elaine M. Andrews, Judge.
Appearances: Charles W. Coe, Anchorage, for
Appellant. Robert P. Blasco, Robertson, Monagle & Eastaugh,
Juneau, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
I. INTRODUCTION
As Janet A. Seville left work, she slipped and injured
herself on an icy public sidewalk outside the building occupied by
her employer, Holland America Line Westours, Inc. (Holland
America). Seville sought workers' compensation benefits, but the
Alaska Workers' Compensation Board denied her claim, concluding
that the sidewalk was neither part of Holland America's premises
nor a "special hazard"of her employment. We reverse, concluding
that, because the Anchorage Municipal Code required Holland America
to keep the sidewalk free of ice, Seville's injury was work
related.
II. FACTS AND PROCEEDINGS
In December 1995 Janet Seville worked as a telemarketer
for Holland America in the Signature Building at the corner of H
Street and West Fourth Avenue in downtown Anchorage. Holland
America leased office space in the Signature Building from its
owner, Cook Inlet Region, Inc. (CIRI). The building housed several
other business tenants, including a law firm, an architect firm,
and an athletic club. On the afternoon of December 5, Seville
finished her shift and left the building to catch a ride home with
a friend who had pulled up in a car on Fourth Avenue. Several
steps outside the building's Fourth Avenue exit, Seville slipped on
the icy sidewalk and fell, breaking her leg and ankle.
Unable to return to work until February 5, 1996, Seville
claimed workers' compensation benefits. Holland America contested
her claims. Following a hearing, the Board denied benefits,
concluding that Seville did not injure herself in the course and
scope of her employment because her accident occurred off Holland
America's premises and was not caused by a special hazard of
employment. The superior court affirmed the Board's decision.
Seville appeals.
III. DISCUSSION
The Board determined that the sidewalk outside the
Signature Building, where Seville sustained her injury, was not a
part of Holland America's business premises. Because the "coming
and going"rule ordinarily limits workers' compensation benefits to
on-premises injuries, the Board concluded that Seville would be
entitled to benefits only if her case fell within the special
hazard exception to the rule. The Board further concluded that
Seville's case did not fall within the special hazards exception.
On appeal, Seville first contends that the sidewalk adjacent to the
Signature Building is a part of Holland America's business premises
and that she should thus be compensated regardless of whether the
special hazard exception applies to her case. She argues
alternatively that her case falls within the special hazard
exception. We consider each argument in turn.
A. Standard of Review
Seville's appeal presents undisputed facts, raising legal
questions concerning the scope of workers' compensation coverage;
since these questions do not implicate the Board's special
expertise, we apply the substitution of judgment standard in
reviewing the Board's decision. [Fn. 1] We give no deference to
the superior court's decision when that court acts as an
intermediate court of appeal. [Fn. 2]
B. The Board Correctly Determined That Seville's Accident
Did Not Occur on Holland America's Premises.
The Alaska Workers' Compensation Act, AS 23.30.005-.395,
"provides for a comprehensive system of compensation for injuries
to employees."[Fn. 3] A compensable injury is defined as one
"arising out of and in the course of employment."[Fn. 4] "Arising
out of and in the course of employment"is defined as "employer-
required or supplied travel to and from a remote job site;
activities performed at the direction or under the control of the
employer; and employer-sanctioned activities at employer-provided
facilities; but excludes . . . activities of a personal nature away
from employer-provided facilities[.]"[Fn. 5]
This court has previously recognized that these
provisions embody the "going and coming rule,"under which "travel
between home and work is considered a personal activity, and
injuries occurring off the work premises during such travel are
generally not compensable under workers' compensation acts."[Fn.
6] The basic going and coming rule is an aspect of the premises
rule; [Fn. 7] barring exceptional circumstances, the going and
coming rule simply means that "for an employee having fixed hours
and place of work, going to and from work is covered only on the
employer's premises."[Fn. 8] An employer's premises are generally
held to encompass "the entire area devoted by the employer to the
industry with which the employee is associated[,]"[Fn. 9] and
usually include common areas of a multi-tenant building where "the
employer has some kind of right of passage[.]"[Fn. 10]
But the employer's premises ordinarily stop there;
proximity alone does not justify an extension:
It is a familiar problem in law, when a
sharp, objective, and perhaps somewhat arbitrary line has been
drawn . . . to encounter demands that the line be blurred a little
to take care of the closest cases. . . . [But questions posed by
such demands] have led the great majority of courts, for reasons
that are perhaps as much administrative necessity as logic, to
adopt the premises rule. There is a logic in the rule, of course,
in that, while the employee is on the employer's premises, the
connection with the employment environment is physical and
tangible. Moreover, the rule has stood the test of time[.][ [Fn.
11]]
Seville nonetheless contends that the sidewalk is or
should be considered part of Holland America's business premises.
She asserts initially that under the early Alaska decision of
Uganik Fisheries v. Alaska Industrial Board, [Fn. 12] an employer's
premises extend to adjacent areas used as a means of ingress and
egress. [Fn. 13] But Uganik does not support a general extension
of employers' premises to include adjacent areas of ingress and
egress; to the extent that Uganik addresses the issue, that
decision, and the cases it cites, [Fn. 14] stand at most for the
more limited proposition that an exception to the going and coming
rule should apply when an area adjacent to an employer's premises
subjects a worker to a special hazard of employment that actually
causes injury. [Fn. 15]
Seville also argues that the sidewalk should be
considered a part of Holland America's business premises because
the company had control over its maintenance and used it for
business purposes. Specifically, Seville asserts that Anchorage
Municipal Code (AMC) 24.80.090 extended the boundaries of Holland
America's business premises by making the company responsible for
removing snow and ice from the sidewalk. [Fn. 16] In addition,
Seville points out that Holland America's lease allowed the company
to maintain an advertising awning that extended beyond the
boundaries of the Signature Building, overhanging the Fourth Avenue
sidewalk near the area where she slipped and fell. Testimony at
the evidentiary hearing suggested that Seville may have slipped on
ice caused by water dripping onto the sidewalk from the awning.
Seville characterizes the awning as further evidence of Holland
America's control over the sidewalk, and as an additional factor
supporting the extension of the business premises.
We are unpersuaded by Seville's argument that these
factors warrant a general extension of Holland America's premises
to the adjacent sidewalk. As we have explained above, the premises
rule does not generally encompass adjoining sidewalks. [Fn. 17] While
the rule's sharp line is "perhaps somewhat arbitrary,"[Fn. 18]
"[t]here is a logic in the rule,"[Fn. 19] and "[it] has stood the
test of time[.]"[Fn. 20] To reiterate Professor Larson's point,
"[t]he real reason for the premises rule is, and always has been,
the impracticality of drawing another line[.]"[Fn. 21] As we
discuss more fully below in part III.C, Holland America's legal
obligation to keep the sidewalk free of ice and snow and the fact
that it installed an advertising awning that overhung a portion of
the sidewalk and potentially contributed to its icy condition are
relevant for purposes of determining whether the particular
circumstances surrounding Seville's injury place it within an
exception to the premises rule. But because Holland America's
awning and its legal duty to keep the sidewalk clear of ice do not
establish that Holland America exercised general control over the
adjacent sidewalk for business purposes, these factors do not
support the broader conclusion that the sidewalk was actually part
of Holland America's premises.
To rule that Holland America's duty to prevent icy
conditions on the adjacent sidewalk warrants a general extension of
its business premises would necessarily imply that any injury on
the sidewalk would be an on-premises injury and that Seville would
therefore have been entitled to compensation regardless of whether
her injury was caused by the sidewalk's slippery condition. As
Holland America argues, the consequences of such a ruling would be
anomalous:
What would happen if [Seville] had fallen in
the same spot in June? There is no ice on the sidewalk in June, so
the Municipal Code would not apply. According to Seville, is the
sidewalk only part of [Holland America's] business premises during
certain months? According to Seville, is the sidewalk only part of
[Holland America's] business premises when there is in fact snow
and/or ice on the sidewalk? And how much?
We find Holland America's argument persuasive. In our
view, the Board correctly determined that Holland America's
business premises did not encompass the Signature Building's
adjacent sidewalk; the Board correctly recognized that Seville's
injury would be compensable only if an exception to the going and
coming rule applied to her case.
C. The Board Erred in Finding the Special Hazard Exception
Inapplicable.
Seville argues that, even if Holland America's premises
did not extend to the adjacent sidewalk, her injury is compensable
under the special hazard exception to the going and coming rule.
In Sokolowski, this court described several exceptions to
the going and coming rule, which allow an injured worker to receive
compensation even if the injury did not occur on the employer's
premises. [Fn. 22] We noted that Alaska had already recognized the
"special errand"and "remote site"exceptions; [Fn. 23] for the
first time, we expressly adopted the "special hazard"exception.
[Fn. 24]
Citing Professor Larson, we explained that the special
hazard exception has been applied when the "off-premises point at
which the injury occurred lies on the only route, or at least on
the normal route, which employees must traverse to reach the plant,
and that therefore the special hazards of that route become the
hazards of the employment."[Fn. 25] We then articulated a three-
part test for determining whether the special hazard exception
applies in such cases: first, there must be a causal relation
between the employment and the injury; second, the hazard that
causes the injury must be "distinctive in nature or quantitatively
greater than risks common to the public;"[Fn. 26] and, third, the
employee must be on "a usual or normal route to work."[Fn. 27]
The claim for compensation in Sokolowski was filed by a
worker who had been injured while walking across an icy street on
her way to work at an Anchorage hotel. [Fn. 28] The hotel did not
allow its employees to park in its parking lot. [Fn. 29] They
parked in a lot directly across the street. [Fn. 30] Because the
nearest intersection was half a block away, they often crossed the
street in the middle of the block. [Fn. 31]
Addressing the second (quantitatively greater risk)
element of the three-part test, we observed that "slipping on an
icy street in Anchorage in winter is a common hazard."[Fn. 32] We
further noted that an employee's mere increased frequency of travel
over an icy road as a result of employment would not elevate the
risk to a special hazard. [Fn. 33] We nevertheless concluded that
crossing the street in the middle of the block might have exposed
hotel employees to a quantitatively greater risk than the general
public. [Fn. 34] Because the Board had not addressed this
possibility, we directed it to determine on remand whether the mid-
block crossing was a "special hazard"under these standards. [Fn.
35]
In the present case, the Board considered, but rejected,
the special hazard exception. Although it found that Holland
America had a duty under the Anchorage Municipal Code to keep the
adjacent sidewalk clear of ice and that Seville's injury actually
had been caused by the sidewalk's icy condition, the Board did not
deem these circumstances alone sufficient to trigger the special
hazard exception. The Board pointed out that Seville's injury
occurred on a busy public sidewalk. Citing this court's decision
in Sokolowski, the Board noted that icy streets are a common hazard
during winter in Anchorage. In the Board's view, because an icy
spot on the Fourth Avenue sidewalk did not expose Seville to a
quantitatively greater risk than would be experienced by a member
of the general public who walked past or into the Signature
Building, her injury did not result from a special hazard.
Seville does not dispute that icy conditions are a common
winter hazard in Anchorage; she nonetheless maintains that the ice
on the Fourth Avenue sidewalk should be deemed a special hazard of
her employment because her employer contributed to the hazard by
failing to perform its legal duty to keep the sidewalk free of ice
and by allowing water to drip onto the sidewalk from its awning.
In response, Holland America suggests that, even if it
had a legal duty to clear ice and breached that duty, the second
element of Sokolowski's special hazard test would not be met, since
Seville was never exposed to a quantitatively greater risk of
falling on the icy Fourth Avenue sidewalk than was any other member
of the general public who commonly walks the avenue. Holland
America insists, moreover, that Seville has failed to establish
that its awning contributed to her injury; in any event, according
to Holland America, she easily could have taken alternative routes
to avoid any danger from the awning.
On balance, we find Seville's argument more persuasive.
As Professor Larson explains, the underlying rationale of the
special hazard exception is that a "[c]laimant has been subjected
to a particular risk because of his employment": [Fn. 36]
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.[ [Fn. 37]]
The "quantitatively greater risk"requirement we
articulated in Sokolowski subserves this principle; [Fn. 38] it is
not immutable and must be understood in context. Sokolowski dealt
with a common hazard -- icy public roads -- that the employer had
no legal duty to control. In such cases, the requirement of a
"quantitatively greater risk"plays an essential role in ensuring
the work-relatedness of injury-causing hazard.
By contrast, when an employer, in connection with the
operation of its business, is charged with a legal duty to control
or abate a specific hazard in the area adjacent to its premises --
even a common hazard to which the general public is exposed -- the
legal duty itself supplies the necessary element of work-
relatedness; employees necessarily rely on the employer's
performance of the duty as one of "the conditions under which
[they] must approach and leave the premises."[Fn. 39] And when
the hazard results in an injury to a worker who is coming to work
or going home, "there is a distinct 'arising out of' or causal
connection"to the course of employment. [Fn. 40]
Professor Larson expressly confirms this view. After
stating that the principle of work-related risk -- being "subjected
to a particular risk because of . . . employment"[Fn. 41] --
explains the special hazard exception and justifies its invocation,
[Fn. 42] Larson goes on to criticize, as violating this principle,
cases that draw an arbitrary distinction "between those off-
premises injuries which occur on private property, such as railway
rights-of-way or short-cuts across neighboring lots, and those
which occur on public streets and sidewalks."[Fn. 43] Then, to
illustrate the kind of publicly occurring off-premises injury that
is sufficiently work related to qualify for an exception, Larson
describes a worker falling on an icy public sidewalk that the
employer has a duty to maintain:
An example of expansion of the premises
concept to coincide with the range of employment-related risk is
seen in cases granting compensation for a fall on an icy sidewalk
which it is the employer's duty to keep clear of ice, or which the
employer has made a practice of keeping clear of ice.[ [Fn. 44]]
In denying Seville's claim, the Board considered the
above-quoted passage from Larson's treatise, but dismissed it as a
"sweeping statement"that was unsupported by the cases that Larson
has cited. In the Board's view, "in each of the cases cited there
was another factor, such as use of the sidewalk to display
merchandise, the sidewalk led only to the employer's premises, the
employer was the sole occupant of a building, or the employer
actually did the sidewalk maintenance[.]"
In our view, however, the cases cited by Larson do not
support the Board's implicit conclusion that the special hazard
exception requires "another factor"-- something besides a legal
duty to clear the sidewalk. We find it difficult to read these
cases as standing for this proposition, or any general proposition
at all, for that matter; rather, their widely divergent results
reflect the fact-intensive nature of the special hazard exception
inquiry and the differing laws of different jurisdictions. [Fn. 45]
More significant than these cases is Larson's unequivocal assertion
that an exception to the going and coming rule is justified when a
worker falls on an icy sidewalk that the employer has a duty to
maintain. [Fn. 46]
But most significant of all is the underlying rationale
that Larson offers to support his assertion: the proposition that
coverage should be expanded beyond an employer's premises when an
injury results from exposure to work-related risk. As we have
already explained, when an employee who is coming to work or going
home slips on an icy sidewalk that the employer has a legal duty to
keep clear, the necessary element of work-relatedness is present,
and Larson's rationale justifies extending coverage regardless of
the presence of "another factor."
Here, the Board expressly found, and Holland America does
not directly contest, that AMC 24.80.090(A) required Holland
America to keep the Fourth Avenue sidewalk clear of snow and ice.
The Board's conclusion is correct. As we have already pointed out,
the ordinance makes occupants of land adjacent to public sidewalks
responsible for the removal of "any accumulation of snow and the
removal or treatment of any ice that may accumulate"on the
sidewalk. Under AMC 24.80.100, "occupant"is defined as the
"person presently entitled to possession or control of land
adjacent to a public sidewalk, including but not limited to an
owner, tenant, lessee, sublessee, or subtenant." Because Holland
America, as a leasehold tenant in the Signature Building,
unquestionably was entitled to possession and control of land
adjacent to the Fourth Avenue sidewalk, [Fn. 47] the ordinance was
applicable.
Holland America nevertheless argues that it discharged
its legal duty by contracting in its lease to have the sidewalk
maintained by its landlord, CIRI. Holland America's regional
manager testified that the terms of the company's lease obligated
CIRI to keep the sidewalk free of ice and snow. [Fn. 48] According
to him, Holland America never undertook to do such work itself but
would call CIRI on occasion if it believed that there might be a
hazard. CIRI would then contact an entity with which it had a
contract to perform the needed maintenance. Holland America
insists that by contacting CIRI, it fulfilled any obligation that
it had under the ordinance. The Board appears to have credited
this argument; it expressly mentioned the fact that the company had
never actually undertaken to maintain the sidewalk as a factor that
weighed against treating the sidewalk as Holland America's
premises.
But this argument is unconvincing for several reasons.
The lease provision requiring CIRI to be primarily responsible for
clearing ice implicitly vested Holland America with a right to
insist that CIRI comply with its contractual obligation; Holland
America actually did request CIRI to take action on several
occasions. In a very real sense, then, Holland America retained
and actually undertook to exercise control over the condition of
its sidewalk. Moreover, while Holland America could delegate
contractually to CIRI the job of keeping the sidewalk free of ice
and snow, its delegation of performance did not necessarily relieve
it of its legal duty to perform. [Fn. 49]
Finally, whether Holland America fulfilled or breached
its legal duty to clear the sidewalk is immaterial for purposes of
determining whether Seville's accident was work related, and
therefore, compensable under Alaska's workers' compensation
provisions. The purpose of workers' compensation is to provide a
"simple and speedy remedy"based on work-relatedness rather than on
employer negligence. [Fn. 50] Thus, the determining factor in
establishing the necessary element of work-relatedness is the
existence of the duty itself, not the breach of that duty.
Holland America's legal duty to keep the Fourth Avenue
sidewalk free of ice arose as an incident of its occupation of
adjacent business premises, where Seville was employed. This legal
duty, coupled with Holland America's retention and exercise of
contractual authority to ensure that CIRI kept the sidewalk clear,
provides an adequate nexus of work-relatedness -- a "distinct
'arising out of' or causal connection between the conditions under
which [Seville] approach[ed] and le[ft] the premises and the
occurrence of the injury[.]"[Fn. 51]
We emphasize that our ruling is narrowly confined to the
workers' compensation context, where compensability hinges on work-
relatedness arising from the existence a duty, rather than on a
breach of the duty or a determination that the duty is owed to any
particular individual or class of individuals. By recognizing that
AMC 24.80.090(A) required Holland America to keep the adjacent
sidewalk clear of ice and snow and holding that this duty sufficed
to establish a nexus between Seville's injury and her employment,
we do not suggest that Holland America owed an actionable duty to
protect members of the public from slipping on the Fourth Avenue
sidewalk or that the municipal ordinance would generally entitle
pedestrians who are injured by slipping on icy public sidewalks to
sue occupants of adjacent land for breach of the duty it imposes.
Indeed, there is authority on both sides of this question. [Fn. 52]
Determining whether an exception to the going and coming
rule should apply ordinarily presents a question of fact to be
determined on a case-by-case basis. [Fn. 53] But the facts in this
case are undisputed. The Board's denial of benefits hinged on its
interpretation of applicable law primarily on Sokolowski's
"quantitatively greater risk"requirement. The Board found that
Seville's injury resulted from slipping on the icy Fourth Avenue
sidewalk as she left work. It also expressly determined that the
two remaining factors of Sokolowski's three-factor special hazard
test had been met -- that Seville was on a usual route from work
and that her employment was a cause in fact of her injury.
The Board also ruled that the availability of two
alternative exits precluded reliance on the special hazard
exception. This aspect of the Board's ruling, however, appears to
focus narrowly on Seville's suggestion that Holland America's
awning might have resulted in the accumulation of ice. Our holding
does not rely on this theory. Instead, we have found
compensability based on the existence of Holland America's legal
duty to keep the entire sidewalk adjacent to its premises clear of
snow and ice. In any event, we conclude that the existence of
alternative routes is immaterial in light of the Board's express
finding that the Fourth Avenue exit was a normal route for going
and coming -- a finding that is amply supported by the record.
While Holland America has suggested that Seville could have avoided
the area under the awning, the Board did not find that her injury
occurred because she "[chose] to ignore a safe convenient route
. . . , and [took] extra risks to save a few steps[.]"[Fn. 54]
In these circumstances, the Board's decision presents
legal, not factual questions. [Fn. 55] We hold that the Board
erred in ruling that Seville's injuries did not occur in the course
and scope of her employment. Given the undisputed facts, Seville
was entitled to compensation.
IV. CONCLUSION
Because we conclude that the Board erred in denying
Seville's claim, we REVERSE its order and REMAND for a
determination of her compensable benefits. [Fn. 56]
FOOTNOTES
Footnote 1:
Sokolowski v. Best Western Golden Lion Hotel, 813 P.2d 286,
289 n.1 (Alaska 1991) (citing Kodiak Oilfield Haulers v. Adams, 777
P.2d 1145, 1148 (Alaska 1989)); see also Madison v. Alaska Dep't of
Fish and Game, 696 P.2d 168, 173 (Alaska 1985).
Footnote 2:
See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
Footnote 3:
Sokolowski, 813 P.2d at 289.
Footnote 4:
AS 23.30.395(17).
Footnote 5:
AS 23.30.395(2).
Footnote 6:
Sokolowski, 813 P.2d at 289 (citing 1 A. Larson, Workmen's
Compensation sec. 15 (Desk ed. 1990)).
Footnote 7:
See 1 A. Larson, Larson's Workers' Compensation Law sec.sec.
15.10 & 15.11, at 4-3 (1998).
Footnote 8:
Id. sec. 15.11, at 4-3 (footnotes omitted); see alsoSokolowski,
813 P.2d at 289.
Footnote 9:
Larson, supra note 7, sec. 15.41, at 4-99.
Footnote 10:
Id. sec. 15.43, at 4-132.
Footnote 11:
Id. sec. 15.12(a), at 4-13 to 4-14. Professor Larson goes on
to
warn:
[A]nd any court which is tempted to forsake
[the premises rule] for some supposedly more
equitable rule would do well to ponder the
following passage from Sinbad the Sailor:
And, lo, the master of the ship
vociferated and called out, threw down his turban, slapped his
face, plucked his beard, and fell down in the hold of the ship by
reason of the violence of his grief and rage. So all the merchants
and other passengers came together to him and said to him, 'O
master, what is the matter?' And he answered them: 'Know, O
Company, that we have wandered from our course, having passed forth
from the sea in which we were, and entered a sea of which we know
not the routes.'
Id. at 4-14.
Footnote 12:
12 Alaska 242 (D. Alaska 1949).
Footnote 13:
Id. at 245.
Footnote 14:
In discussing the adjacent premises doctrine, Uganik relies
primarily on Bountiful Brick Co. v. Giles, 276 U.S. 154 (1928) and
Cudahy Packing Co. of Neb. v. Parramore, 263 U.S. 418 (1923). See
Uganik, 12 Alaska at 249.
Footnote 15:
Uganik, 12 Alaska at 249. Cf. Larson, supra note 7,
sec. 15.13(a), at 4-30 & n.23 (citing Parramore and Giles in
support
of the proposition that the special hazard rule "has been accepted
by the majority of jurisdictions in some degree.").
Footnote 16:
AMC 24.80.090(A) provides: "An occupant of land adjacent to a
public sidewalk shall be responsible for the removal of any
accumulation of snow and the removal or treatment of any ice that
may accumulate, form, or be deposited thereon."
Footnote 17:
See Larson, supra note 7, sec. 15.22(e), at 4-86 (stating
that,
absent special circumstances, "injuries on nearby sidewalks and
streets are not within the premises rule").
Footnote 18:
Id. sec. 15.12(a), at 4-13.
Footnote 19:
Id. sec. 15.12(a), at 4-14.
Footnote 20:
Id.
Footnote 21:
Sokolowski v. Best Western Golden Lion Hotel, 813 P.2d 286,
290-91 (Alaska 1991) (quoting Larson, supra note 6 sec. 15.12(b),
at 4-13 to 4-14).
Footnote 22:
Sokolowski, 813 P.2d at 289-90.
Footnote 23:
Id. (citing State, Dep't of Highways v. Johns, 422 P.2d 855
(Alaska 1967)) (holding that an employer's request that an employee
drive his own car to an alternate work site, with pay and gas,
constituted a special errand); M-K Rivers v. Schleifman, 599 P.2d
132 (Alaska 1979) (recognizing a remote site exception).
Footnote 24:
Sokolowski, 813 P.2d at 290.
Footnote 25:
Id. (quoting 1 A. Larson, supra note 6, sec. 15.13, at 4-22).
Footnote 26:
Sokolowski, 813 P.2d at 291 (quoting General Ins. Co. of
America v. Workers' Compensation Appeals Bd., 546 P.2d 1361, 1364
(Cal. 1976)).
Footnote 27:
Sokolowski, 813 P.2d at 291.
Footnote 28:
Id. at 288-89.
Footnote 29:
Id.
Footnote 30:
Id.
Footnote 31:
Id.
Footnote 32:
Id. at 293.
Footnote 33:
Id. at 293 n.9.
Footnote 34:
Id. at 293-94.
Footnote 35:
Id. at 294.
Footnote 36:
Larson, supra note 7, sec. 15.15, at 4-72.
Footnote 37:
Id. at 4-72 to 4-73 (footnote omitted).
Footnote 38:
See Sokolowski, 813 P.2d at 293-94 (discussing "quantitatively
greater risk"requirement).
Footnote 39:
Larson, supra note 7, sec. 15.15, at 4-72 to 4-73.
Footnote 40:
Id.
Footnote 41:
Larson, supra note 7, sec. 15.15, at 4-72.
Footnote 42:
Id. at 4-72 to 4-73.
Footnote 43:
Id. sec. 15.21, at 4-74.
Footnote 44:
Id. sec. 15.22(b), at 4-78.
Footnote 45:
For example, in Frost v. S.S. Kresge Co., 299 N.W.2d 646, 650
(Iowa 1980), the court held that an employer's responsibility to
remove snow coupled with the fact that the employer sometimes used
the sidewalk to display and sell merchandise justified allowing an
exception to the going and coming rule; in Beck v. Edison Bros.
Stores, Inc., 657 S.W.2d 326, 328 (Mo. App. 1983), an employee who
slipped on an icy sidewalk adjacent to her place of work alleged
that the employer was negligent in removing snow and the court held
that she was not in the scope of employment, thus allowing her to
recover in tort; in Reid v. Coastal Abrasive & Tool Co., 273
N.Y.S.2d 954, 955 (N.Y. Sup. 1966), the court allowed compensation
for an employee's slip on an adjacent icy sidewalk when the
employer was the sole tenant of the building and the employer's
lease stipulated that he had to keep the sidewalk clear; in Kyle v.
Davol, Inc., 395 A.2d 714, 715 (R.I. 1978), the court held that
though the employer was responsible for clearing ice on an adjacent
sidewalk, benefits should be denied for an employee's fall because
the situation did not warrant expanding the going and coming rule.
Footnote 46:
Larson, supra note 7, sec. 15.22(b), at 4-78.
Footnote 47:
Cf. Black's Law Dictionary 1465 (6th ed. 1990) (defining
"tenancy"as involving "an interest in realty . . . [with]
possession exclusive even of that of landlord, except as the lease
permits landlord's entry[.]"); Restatement (Second) of Property,
sec.
1.2 cmt. a (1977) (explaining that a tenancy cannot begin unless
the tenant has a present right to possession).
Footnote 48:
The lease itself does not appear to be included in the
appellate record, but there is no dispute concerning its
provisions.
Footnote 49:
See generally 3 Williston on Contracts sec. 411, at 18-22 (3d
ed.
1960) (discussing delegation of duties). Cf. AS 45.02.210 ("A
party may perform the party's duty through a delegate unless
otherwise agreed . . . [n]o delegation of performance relieves the
party delegating of a duty to perform[.]") (Alaska's version of
U.C.C. sec. 2-210). See also Restatement (Second) of Contracts
sec. 318(1), (3) (1981):
(1) An obligor can properly delegate the
performance of his duty to another unless the delegation is
contrary to public policy or the terms of his promise.
. . . .
(3) Unless the obligee agrees otherwise,
neither delegation of performance nor a contract to assume the duty
made with the obligor by the person delegated discharges any duty
or liability of the delegating obligor.
Footnote 50:
Sokolowski v. Best Western Golden Lion Hotel, 813 P.2d 286,
290 (Alaska 1991) (citing Fairbanks North Star Borough v. Rogers
and Babler, 747 P.2d 528, 531 (Alaska 1987)).
Footnote 51:
Larson, supra note 7, sec. 15.15, at 4-72 to 4-73.
Footnote 52:
Compare, e.g., Burke v. Columbia Lumber Co. of Alaska, 108 F.
Supp. 743, 744 (D. Alaska 1952) ("Delegation [by the city of Sitka]
of the duty to maintain does not ordinarily result in making the
abutting owner liable to individual pedestrians for failure to
comply; . . . This ordinance was not designed to give an injured
individual a right of action against a property owner violating its
provisions, but rather was intended to assist the city in
performing its municipal duties[.]"), Carroll v. Jobe, 638 N.E.2d
467, 469 (Ind. App. 1994) ("[T]he duty cast upon abutting owners by
snow and ice statutes or ordinances . . . is a public one the
breach of which [cannot be prosecuted by] private action[.]"),
Budahl v. Gordon and David Assoc., 323 N.W.2d 853, 854 (S.D. 1982)
("The responsibility of the occupant is to the municipality. The
occupant has no duty toward a pedestrian[.]"), and Restatement
(Second) of Torts sec. 288(c) (1965) (stating that a legislative
enactment does not create a standard of conduct for purposes of
tort liability when its sole purpose is "to impose upon the actor
the performance of a service which the state or any subdivision of
it undertakes to give the public[.]"), with Harris v. Sanders, 919
P.2d 512, 515 (Or. App. 1996) (finding that municipal ordinance
requiring abutting landowners to maintain sidewalks created duty to
private persons), and Restatement (Second) of Torts sec. 286 (1965)
(stating that a legislative enactment may create a standard of
conduct for purposes of tort liability when the purpose of the
provision is to protect a particular class of persons against a
particular type of harm).
Footnote 53:
See Cudahy Packing Co. of Neb. v. Parramore, 263 U.S. 418, 424
(1923) ("Whether a given accident is so related or incident to the
business must depend upon its own particular circumstances. No
exact formula can be laid down which will automatically solve every
case.").
Footnote 54:
Sokolowski, 813 P.2d at 294.
Footnote 55:
Id. at 289 n.1 (citing Kodiak Oilfield Haulers v. Adams, 777
P.2d 1145, 1148 (Alaska 1989)); see also Madison v. Alaska Dep't of
Fish and Game, 696 P.2d 168, 173 (Alaska 1985).
Footnote 56:
Seville has separately argued that the Board erred in failing
to award attorney's fees. We need not address the issue. Having
now prevailed on her claim for compensation, Seville will be
entitled as a matter of course to an award of fees under
AS 23.30.145(b).
