Submitted: October 3, 2018
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING IN PART AND DENYING IN PART
PETITIONER'S MOTION FOR SUMMARY JUDGMENT
M. SANDLER JUDGE
worked at a grocery store that is located in a strip mall
with a large parking lot shared by the mall's tenants. On
his 15-minute break, Petitioner went to his car, which he had
parked near one of the grocery store's cart corrals.
While walking back to the store toward the end of his break,
he fell and suffered an injury. Respondent denied liability
on the grounds that Petitioner's injury did not arise out
of and in the course of his employment, asserting that the
parking lot was not part of the employer's worksite.
area of the parking lot where Petitioner sustained his injury
was part of his employer's worksite, as the grocery
store's employees regularly work in that part of the
parking lot. Therefore, Petitioner's injury arose out of
and within the course of his employment.
1 Respondent Albertsons Companies, LLC (Albertsons) moves for
summary judgment, asserting that Petitioner Jan Erik Amundsen
was outside the course of his employment when he was injured.
At the hearing on Albertsons' summary judgment motion,
Amundsen moved for summary judgment, and asked this Court to
consider his brief opposing Albertsons' summary judgment
motion as his brief supporting his summary judgment motion.
The parties agreed that there are no issues of material fact
and that this Court could decide this case on the evidence
they submitted with their summary judgment briefs.
2 Amundsen worked as a baker for Albertsons at its grocery
store in the Northgate Plaza strip mall in Missoula.
3 Albertsons leases its space from Gateway Limited
Partnership, which owns Northgate Plaza. Gateway Limited
Partnership has several other tenants in Northgate Plaza,
including retail stores, a medical center, and restaurants.
These businesses share a large parking lot. Under the Lease,
Gateway Limited Partnership is responsible for maintaining
the common areas, including the parking lot. However, the
Lease is a net lease under which Albertsons pays, inter
alia, its pro rata share of the common area maintenance
4 Albertsons' employees may park in the shared parking
lot while working. Albertsons does not require its employees
to park in specific spaces. However, Albertsons asks its
employees to park toward the middle and back of the lot, so
its customers can park close to the store. Albertsons'
employees routinely park in the parking lot and walk through
it as they go in and out of the store.
5 Albertsons has corrals in the parking lot for its shopping
carts, with the hope that its customers will put their carts
in the corrals after unloading their groceries. Steve Kalin,
Albertsons' store manager, testified at his deposition
that the corrals make it easier for Albertsons' employees
to gather the carts before walking them back into the store
and reduces the chance that a cart will roll into and damage
a customer's vehicle. However, many customers do not put
their carts in the corrals.
6 As part of their daily job duties, Albertsons' courtesy
clerks collect trash from the part of the parking lot that is
generally in front of the store, carry groceries to
customers' vehicles parked in the parking lot, and
continuously retrieve shopping carts from the parking lot,
returning them to the cart bay inside the front of the store.
The carts are usually left in the area of the parking lot
generally in front of the store. When it snows,
Albertsons' courtesy clerks shovel snow away from the
corrals and put ice melt around them. Kalin testified that
keeping the parking lot clean and helping customers take
groceries to their vehicles is part of Albertsons'
7 Albertsons allowed Amundson to take a 15-minute break
during the first half of his shift, a 30-minute lunch break,
and a 15-minute break during the second half of his shift.
8 For his shift on February 9, 2018, Amundsen parked in the
Northgate Plaza parking lot, "right near" one of
Albertsons' cart corrals. This was in the part of the
parking lot in which Amundsen was instructed to park.
Amundsen went to his car during his first 15-minute break.
While Amundsen was walking back to the store, he slipped and
fell in the parking lot, injuring his right ankle.
9 Albertsons denied Amundsen's claim, maintaining that
Amundsen was not in the course of his employment under §
10 This case is governed by the 2017 version of the Montana
Workers' Compensation Act (WCA) because that was the law
in effect at the time of Amundsen's injury.
11 This Court grants summary judgment when there are no
genuine issues of material fact, and the moving party is