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Zoucha v. Touch of Class Lounge1/14/2005
NATURE OF CASE
During the early morning hours of June 5, 2001, Stephanie Zoucha was assaulted as she left work at the Touch of Class Lounge (the Lounge) in Omaha, Nebraska. Zoucha was severely injured. She filed a claim for workers' compensation benefits, but the single judge of the Workers' Compensation Court dismissed her petition based upon his finding that the assault did not take place on the premises of Zoucha's employer, was not causally related to Zoucha's employment, and thus did not occur in the course of Zoucha's employment. The single judge's order was affirmed by the review panel of the Workers' Compensation Court, and the judgment was affirmed by the Nebraska Court of Appeals; we granted Zoucha's petition for further review. The question presented in this appeal is whether, for workers' compensation purposes, a shopping center parking lot, used by employees of the businesses located in the center, is considered part of the premises of an employer located in the center.
FACTUAL BACKGROUND
Zoucha was employed at the Lounge as a bartender and waitress starting in early 2001. Patricia Bauer, the owner of the Lounge, testified that Zoucha's duties ended when she closed and locked the door of the Lounge after closing. Zoucha was not required, for instance, to make night deposits of the Lounge's revenue.
On June 4, 2001, Zoucha started her shift at approximately 4:30 or 5 p.m. and was the only bartender working that evening. During the evening, a group of people came in, including William Nunez. At one point during the evening, Zoucha took a drink away from Nunez. Nunez also approached Zoucha and asked if she was interested in smoking marijuana with him after her shift. Zoucha admitted to smoking marijuana on occasion, but testified that she had not smoked marijuana with Nunez before, or socialized with him, and that she told him she would not smoke with him.
Zoucha stopped serving drinks at 1 a.m. and collected drinks from the patrons of the Lounge at 1:15 a.m. See Neb. Rev. Stat. ยง 53-179 (Reissue 1998). She cleaned up the Lounge, locked up, and left at about 2:15 a.m. Zoucha testified that she went to her car in the parking lot, unlocked the door, put her bags in, and was struck with " ike a tire iron on the back of my head." Zoucha sustained an open skull fracture and other severe injuries. Zoucha has no memory of any events from the time of the assault on June 5, 2001, until June 16. At the time of trial, Zoucha still suffered from significant cognitive impairment, including difficulty with speech and thought formation. Zoucha's purse, containing her tip money from her shift, was stolen and not recovered.
Zoucha testified that she had seen her attacker before being struck and that he resembled Nunez. Nunez was arrested and, at the time of trial, had been charged with the assault. The Omaha police officer who investigated the assault, in an affidavit seeking an arrest warrant for Nunez, averred that Nunez had admitted being at the scene, and a denim jacket had been found in Nunez' apartment with Zoucha's blood on it.
Bauer testified that she did not own the building in which the Lounge was located but simply leased space in the building. There were two businesses in the building, including the Lounge, and approximately seven or eight other businesses in another, adjacent building. Characterized generally, the Lounge is located in a suburban shopping plaza or "strip mall." Bauer testified that she did not own or have control or authority over the parking lot, which was provided for the common use of all the businesses located in the plaza. Bauer estimated that Zoucha's car had been located about 50 to 60 feet from
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