ONO v. HAWAIIAN TELEPHONE CO., 68 Haw. 479 (1986)

718 P.2d 1085

MERLE ONO, Claimant-Appellee, v. HAWAIIAN TELEPHONE COMPANY, Employer-Appellant, and FIRST INSURANCE COMPANY OF HAWAII, LTD., Insurance Carrier-Appellant

NO. 10750Supreme Court of Hawaii.
May 15, 1986

APPEAL FROM LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD

LUM, C.J., PADGETT, HAYASHI, WAKATSUKI, JJ., AND INTERMEDIATE COURT OF APPEALS ASSOCIATE JUDGE HEEN IN PLACE OF NAKAMURA, J., RECUSED

OPINION OF THE COURT BY PADGETT, J.

This is an appeal from an order holding compensable an injury to the claimant which occurred when she tripped over a median in the sidewalk in the Mililani Shopping Center, some 200 feet from her employer’s Phone Mart where she was employed. At the time, she was on her lunch break and was returning to the Phone Mart with soft drinks to put them in the refrigerator there prior to having lunch. The employer, as a lessee in the shopping center, was required to and did make contributions to the funds for the maintenance of the common areas of which the sidewalk in question was one.

There appears to be a split of authority in other jurisdictions as to whether those areas in a shopping center to which a particular employer having a shop in the center makes maintenance contributions are part of the employer’s “premises” for purposes of a workers’ compensation statute. In this case, LIRAB, by the wording of its decision and order, appears to have adopted a per se rule, that such areas are the employer’s premises and that an accident occurring thereon to an employee going to or from the employer’s shop during a lunch break is compensable.

Page 480

We are unwilling to adopt such a per se rule either way. It seems to us that the fact that the employer makes a contribution toward the maintenance of areas commonly used by all customers in a shopping center is only one factor to be considered in determining compensability in any particular case. Accordingly, the order below is reversed and the case is remanded for further proceedings consistent herewith.

Stanford J. Manuia (Foster Thorbjornsen with him on the brief; Woo, Kessner Duca of counsel) for appellants.

Herbert R. Takahashi for appellee.