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Sazima v. Shepherd Bar & Restaurant

762 N.W.2d 924 (2009)
Stacy J. SAZIMA, Plaintiff-Appellee,
SHEPHERD BAR & RESTAURANT and Auto-Owners Insurance Company, Defendants-Appellants.
Docket No. 136940. COA No. 281855.

Supreme Court of Michigan.

April 3, 2009.


By order dated December 17, 2008, this Court peremptorily reversed the ruling of the Workers' Compensation Appellate Commission, which had found that the plaintiffs injury occurred in the course of her employment. On order of the Court, the plaintiff-appellee's motion for reconsideration is GRANTED. We VACATE our order of December 17, 2008. The application for leave to appeal the June 17, 2008 order of the Court of Appeals is DENIED, because we are no longer persuaded that the question presented should be reviewed by this Court.

MARKMAN, J. (dissenting).

I dissent from the majority's decision to vacate this Court's previous order, 482 Mich. 1110, 758 N.W.2d 270 (2008), and to deny leave to appeal, effectively reversing our previous decision. The Workers' Compensation Appellate Commission (WCAC) erred, in my judgment, by awarding plaintiff benefits for an injury that did not occur "in the course of employment." MCL 418.301(1). Rather, plaintiff was injured while walking from her car parked along a public street to her place of employment. Because the Worker's Disability Compensation Act does not extend to an injury occurring under such circumstances, I would reverse this decision.

Generally, "injuries that occur while traveling to or coming from work are not compensable." Camburn v. Northwest School Dist, 459 Mich. 471, 478, 592 N.W.2d 46 (1999) (quotation marks and citation omitted); see also Simkins v. Gen. Motors Corp. (After Remand), 453 Mich. 703, 723, 556 N.W.2d 839 (1996). Known as the "coming and going" rule, this protects employers from incurring liability for injuries occurring in areas over which they have no control. An employee can avoid this rule only by establishing one of several established exceptions, Camburn, supra at 478, 592 N.W.2d 46, none of which is applicable here.

For the "special benefit" exception to apply, the "special benefit" must be the result of the "activity at the time of the injury." Id. at 478, 592 N.W.2d 46 (quotation marks and citation omitted). Plaintiffs activity at the time of injury was walking to work, which provided no special benefit to defendant. Bowman v. RL Coolsaet Construction Co., 275 Mich.App. 188, 191, 738 N.W.2d 260 (2007). Instead, plaintiff was "master of [her] own movements upon the street and encountered there a risk incident to any user of the street." Dent v. Ford Motor Co., 275 Mich. 39, 42, 265 N.W. 518 (1936).

For the "excessive risk" exception to apply, "travel itself [must be] the employment." 925*925 Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 609, 295 N.W. 331 (1940). "[N]ormal traffic hazards encountered while traveling to and from the place of work are deemed to be risks common to all...." Id. The plaintiff in Chrysler drove a truck for the employer. The Court emphasized that his injury was compensable because the additional risk that caused the injury was created by the inherent purpose of the employment. Id. Here, plaintiffs case arises only from the normal hazards all employees encounter while traveling to work.

Established law simply does not support the majority's decision to reverse our previous order. The only basis for this reversal is supplied in previous statements by justices in the majority: "[t]here is but one answer, the makeup of the Court. The law has not changed. Only the individuals wearing the robes have changed." Roivland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 256, 731 N.W.2d 41 (2007) (Kelly, J., dissenting in part); "The only change has been the composition of this Court." Paige v. City of Sterling Hts., 476 Mich. 495, 532-533, 720 N.W.2d 219 (2006) (Cavanagh, J., dissenting in part). In the context of a motion for reconsideration, and without the benefit of an opinion, the majority effectively reverses precedent. I dissent.

CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.