As the temperatures drop and Northeast Ohioans struggle to keep driveways and walkways free of snow and ice, slip-and-fall accidents inevitably arise in parking lots and other outdoor areas. Indeed, the winter months usher in an element of risk to otherwise innocuous and routine activities. A recent case out of the Second District Court of Appeals reminds employers not only of the perils underfoot, but also that an accident in a parking lot, even if it occurs before or after an employee has “clocked in,” can present the risk of a potentially costly workers’ compensation claim.
In Foster v. Ohio Bureau of Workers’ Compensation, the employee worked at an office building shared by several employer-tenants, and she was injured when she arrived for work, exited her car, and slipped and fell on snow-covered ice in the parking lot. Her parking space was not assigned to her and the lot was one of several unrestricted lots surrounding the building that were also available to the general public. The employee’s fall resulted in a fractured vertebrae that required surgery, and she filed a claim for workers’ compensation benefits.
Under the Workers’ Compensation Law of Ohio, an injury is only compensable if it was sustained “in the course of, and arising out of” the injured employee’s employment. The “coming-and-going rule” is one used to determine whether an injury occurred “in the course of, and arising out of” employment, and it generally precludes workers’ compensation coverage for an employee with a fixed place of employment who is injured while traveling to or from the fixed-situs job where the duties of the position are performed. In other words, the “coming-and-going rule” would not preclude a claim by an injured transient employee, such as a traveling salesman, who does not perform all of his duties at a single, fixed place of employment. As to employees to whom the rule applies, there are, however, three exceptions to the “coming-and-going rule” which have been recognized by the Supreme Court of Ohio: (1) the zone-of-employment exception, (2) the special-hazard exception, and (3) the totality-of-the-circumstances exception.
- The “zone-of-employment” has been defined as “the place of employment and the area thereabout, including the means of ingress thereto and egress therefrom, under control of the employer” -- the element of employer control being key. If an injury is found to be within the zone-of-employment, an injury sustained while coming to or going from work may be compensable.
- An employer may also find itself responsible for an injury which occurs because of a “special hazard” created by the employment. In this case, it must be proven that, but for the employment, the injured employee would not have found himself at the location where the injury occurred and the risk of injury is “distinctive in nature or quantitatively greater than the risk common to the public.”
- Finally, the “totality-of-the-circumstances” may bring an injury into the purview of the Workers’ Compensation Law of Ohio, depending upon the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident and the benefit the employer received from the injured employee’s presence at the scene of the accident.
Fortunately for the employer in Foster, the Second District Court of Appeals found that none of the three exceptions applied, and that the employee’s slip-and-fall injury was precluded by the “coming-and-going rule.” It was undisputed that the employee had not yet begun her duties for the employer, which did not commence until she arrived at the office. Also, the parking lot was not controlled by the employer. It was maintained by the landlord who granted several tenant-employers its non-exclusive use, it was available to the public at large and the employer did not instruct its employees to park there. Furthermore, no “special hazard” existed that was greater toward the employee than that which is presented to the general public. The employer did not subject the employee to the risk either, as she was free to park anywhere. Finally, while the accident occurred relatively close to the office building, the Second District found that the totality of the circumstances did not lend itself to the conclusion of claim compensability. The employer did not exercise control over the employee’s choice in parking, nor the parking lot itself, and it did not derive any added benefit by the employee’s decision to park there. Therefore, the Second District Court of Appeals affirmed the trial court’s decision to sustain a motion for summary judgment against the employee and dismiss her complaint.
As an employer, whether or not you have fixed-situs employees, Foster should serve as a reminder to be cognizant of any policies you may have regarding employee parking and the amount of control you exercise over parking and other outdoor areas frequented by employees. It is always good practice to keep any areas under employer control hazard-free to ensure a safe working environment for employees, particularly as Old Man Winter blankets the town with hazards of his own.