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Amundsen v. Albertsons Companies, LLC

Court of Workers Compensation of Montana

January 28, 2019


          Submitted: October 3, 2018




         Petitioner 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.


         The 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 cost.

         ¶ 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' customer service.[1]

         ¶ 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 § 39-71-407(2)(a), MCA.


         ¶ 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.[2]

         ¶ 11 This Court grants summary judgment when there are no genuine issues of material fact, and the moving party is ...

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