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Zoucha v. Touch of Class Lounge1/14/2005
of § 48-101 has been defined as testing the work connection as to time, place, and activity; that is, it demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto. Id.
In this case, the single judge concluded that Zoucha's injuries did not occur in the course of employment because she failed to satisfy the requirements of the "going to and coming from work" rule. That rule, as currently applied in Nebraska, is that injuries sustained by an employee while going to and coming from work do not arise out of and in the course of employment unless it is determined that a distinct causal connection exists between an employer-created condition and the cause of the injury. Torres v. Aulick Leasing , 261 Neb. 1016, 628 N.W.2d 212 (2001). Prior to our adoption of this rule, we adhered to a "bright-line" rule, pursuant to which an employee could recover for an injury sustained while going to and from work only if that injury occurred on premises owned by the employer. See id. But we abandoned that rule in La Croix v. Omaha Public Schools, 254 Neb. 1014, 582 N.W.2d 283 (1998), and adopted the current rule set forth above.
Our current formulation of the "going to and coming from work" rule, however, "allows an employee to recover for injuries sustained off the employer's premises when there is a distinct causal connection between an employer-created condition and the occurrence of the injury." (Emphasis supplied.) Torres, 261 Neb. at 1022, 628 N.W.2d at 218. The initial inquiry-and the issue presented by Zoucha's argument in this appeal-is whether or not the employee was on the employer's premises when the injury was sustained. See La Croix, supra. The requirement of a distinct causal connection between an employer-created condition and the occurrence of the injury for an employee to recover for an injury sustained off the employer's premises, see id., does not alter our prior rule that an employee injured on the premises of the employer where he or she works while coming to work or leaving after work is within the course of his or her employment under § 48-101, see P.A.M., supra.
Consequently, we first address Zoucha's argument that she was on the Lounge's premises when she was assaulted. Parking lots owned or maintained by an employer are generally considered part of the employer's premises for workers' compensation purposes. See, La Croix, supra; 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 13.04 (2004). But as Zoucha correctly notes, the general rule is that "if the owner of the building in which the employee works provides a parking lot for the convenience of all tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the [parking lot] rule is applicable." See id. at 13-41. Accord, May Dept. Stores Co. v. Harryman, 307 Md. 692, 517 A.2d 71 (1986); Lovato v. Maxim's Beauty Salon, Inc., 109 N.M. 138, 782 P.2d 391 (N.M. App. 1989); P.B. Bell & Associates v. Ind. Com'n of Ariz., 142 Ariz. 501, 690 P.2d 802 (Ariz. App. 1984).
It would be "impractical and illogical" to require actual ownership or control of a parking lot by a tenant in a shopping plaza consisting of multiple independent businesses, each of which would have to be an owner in common with all the o
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