parking lot cases slide presentation

IWCC – Parking Lot CasesSeminar for Sentry Insurance

January 30, 2015

GAROFALO, SCHREIBER & STORM, CHARTEREDBy: Joseph Garofalo

P: 312-670-2000 E: [email protected]

www.gsslawoffice.com

mailto:[email protected]

Parking Lot Cases - GSS 2

Illinois is not a positional risk, i.e. "but for" State

To be compensable an accident must •"arise out of" and occur•"in the course of” the employment


Brady v Industrial Commission, 143 Ill.2d 542 (1991)

• Claimant was an estimating engineer• Works at a drafting table attached to a wall in his office• Truck accident on Route 53; Truck crashes into building and drafting table

punctures claimant’s abdomen• Claimant on permanent life support• Snowing• Employer’s building was a garage for construction equipment• Exterior walls made of corrugated metal; interior walls made of plywood

affixed to wooden studs• Route 53 used frequently by trucks hauling stone from nearby quarries• Employer prevails at arbitration, I.C., Cir. Ct., App. Ct. – Finding of not AOO

affirmed as not contrary to manifest weight of evidence


Brady v Industrial Commission, 143 Ill.2d 542 (1991) - contd.

NOT COMPENSABLE• I.C. affirmed that hazard was not incidental to claimant’s employment, and

work environment did not increase the risk of this injury

• Court Acknowledges that in other cases compensability findings of I.C. was affirmed regarding:– Tornados– Explosion of commercial airliner– Lightning strike of telephone line– Assault

• Court rejects adoption of the positional at risk doctrine whereby:– “an injury may be said to arise out of the employment if the injury would not have

occurred but for the fact that the conditions or obligations of the employment placed claimant in the position where he was injured by a neutral force, meaning by ‘neutral’ neither personal to the claimant nor distinctly associated with the employment”


GENERAL LEGAL ISSUES OCCURING IN WC

ARISING OUT OF • Accident must have its

origin in some risk connected with or incidental to the employment

• The risk the employee faces must be greater than the degree of risk faced by the general public

IN THE COURSE OF• Refers to time, place and

circumstances

• Must be engaged in employment activity or something incidental to the employment


GENERAL LEGAL ISSUES, contd.

DEVIATION• When an employee exposes himself/herself to an unnecessary personal

danger solely for his/her own benefit

CAUSATION• Claimant has a duty to prove by a preponderance of the credible evidence

that the medical condition is causally related to the work injury – i.e., that the work injury could or might have been "a" causative factor

in causing the condition, even if it only may have aggravated or exacerbated an underlying condition


INJURIES OCCURRING ON OR IN THE VICINITY OF PARKING LOTS

THE LAW• The Workers' Compensation Act does not mention parking lots

– Law governing compensability of parking lot injuries is based on case decisions

THE "GENERAL PREMISES" RULE• Generally, injuries occuring on an employer’s premises are found to be

compensable when AOO & ICO tests are satisfied

THE “GOING AND COMING” RULE• Accidents suffered by employees while going to and from work are not

compensable


EXCEPTIONS TO "GENERAL PREMISES" RULE

1. When an employee's employment requires him/her to be where the accident occurred

Examplesa) When an employee is paid for their TIME while

traveling to and from work

– reimbursement of travel expenses is one factor to be evaluated but is not determinative of compensability

b) When an employee is on a "special mission”

c) When the employee is on 24 hour call

d) When the employment requires travel i.e., the employee is a "traveling employee"

e) When the employee is given a company vehicle

When the preceding circumstances exist, accidents suffered while an employee is going to and from work are compensable

2. Accidents occurring in parking lots, which are provided by and are under the control of the employer

• Can create complicated situations when parking lots are used by employees and the general public


Homereding v Industrial Commission, 327 Ill. App3d 1050 (2002)

• Claimant was a nail technician in a salon located in a strip mall• Parking lot in front of and in rear of the salon• Parking lot was owned by the mall; the employer paid a share of the

common costs to maintain the lots• Employer instructed employee to park in the rear lot• Claimant fell on ice going to her car to obtain work supplies during the

work day

COMPENSABLE


Patton v Dixon Strings, 21 ILQCLB 25 (IllW.C. Comm. 2012)

• Employee reaching into back seatof her vehicle for work supplies before checking into work and slipped and twisted her knee

• The parking lot was used by employees & the general public• Employer did not instruct employees where to park in the lot

NOT COMPENSABLE


Metsa v CDW LLC, 20 ILWCLB 90 (Ill.W.C. Com m. 2012)

• Parking lot was used by employees & the general public• The lot had a public portion and an employee area• Employer did not instruct employees where to park in the lot• The claimant parked in the public portion of the lot• Claimant slipped and fell on black ice covering handicapped parking spots

which everyone who parked in the lot crossed in order to gain access to the building regardless of where in the lot they parked

NOT COMPENSABLE


Wal-Mart Stores, Inc. v Industrial Commission, 326 Ill. App.3d 438 (2001)

• Employee was walking in parking lot to her car which was being driven by her friend who was picking her up after work

• Employer had requested employees to park in a designated area but this was not "required"

• The general public parked anywhere in the lot, including the area where the employer had requested employees to park

NOT COMPENSABLE


Morris v State of Illinois Department of Healthcare and Family Services,

22 ILWCLB 188 (Ill. W.C. Comm. 2014)• Employee parked on a public boulevard in front of his work place • Employer did not require that he park in any specific place• Claimant slipped and fell on the public boulevard on his way to his car

immediately after work • The route the claimant walked to his car was not defective and there was

no hazard• The employer did not own own or maintain the parking spot where the

claimant had parked

NOT COMPENSABLE


Joiner v Industrial Commission, 337 Ill. App.3d 627 (3rd Dist. 2003)

• Claimant was a deputy clerk at the Will County Courthouse • After working claimant walked in the lot to her co-worker's vehicle in the parking lot when

she tripped on loose gravel and fell into a pothole• The employer reimbursed the employees for their parking expenses• The parking lot was privately owned• The employer did not own, control or maintain the lot• The employee did not need to walk on the lot where she fell in furtherance of her work

duties• The employer had no agreement with the owner of the lot re: fees to be paid by its

employees to park there

NOT COMPENSABLE• Parking expense reimbursement cannot be equated with "providing” the

parking facility


CONCLUSION RE: COMPENSABILITY OF PARKING LOT ACCIDENTS

• If the employer owned, maintained and provided the parking lot and when a hazardous condition is present, accidents on parking lots are compensable.

• The rationale for this conclusion is that the parking lot is deemed to be a part of the employer's premises.


COMMON PARKING LOT HAZARDS/DEFECTS

• Presence of snow or ice

• Presence of water

• Presence of foreign substance

• Cracks, potholes or uneven surfaces

• Slip and fall

• Motor vehicle accidents

• Injuries when employees assist customers or employees

COMMON TYPES OF PARKING LOT ACCIDENTS


EXCLUSIVITY PROVISION

Section 5(a) of the Workers' Compensation Act provides that benefits paid under the Act are an employee's exclusive remedy under the Act

• If a parking lot accident is compensable, the employee cannot sue the employer for civil damages

• Several cases decided in a civil context re arising out of and in the course of for parking lot accidents and when an accident is found to be compensable the civil case is dismissed


DEVIATION CASESDodson v Industrial Commission, 117 Ill.2d 38 (1997)• Claimant was a waitress walking

to her car in a parking lot after work

• It was raining• Claimant abandoned the

sidewalk and walked down a slope where she slipped and fell

NOT COMPENSABLE• The claimant exposed herself to

an unnecessary personal risk for her own benefit

Hatfil v Industrial Commission, 202 Ill. App.3d 547 (4th Dist. 1990)• Claimant walked to his car in the

company parking lot after work and jumped across accumulated water at the base of a five foot incline instead of using one of two walkways

NOT COMPENSABLE• Claimant took a personal risk by

leaving the workplace in an unsafe manner


DEVIATION CASES, contd.Fisher Body Division, General Motors Corp. v Industrial Commission, 40 Ill.2d 514 (1968)• Claimant worked on his car in the

company parking lot after work and was injured when his battery exploded

NOT COMPENSABLE• Claimant was injured as result of

a personal risk

Hanson v Illinois Workers’ Compensation Commission et al., 2013 Il App (3d) 120989WC-U• Claimant started her shift and then walked

to her car in the company parking lot to retrieve work materials

• Instead of walking on the sidewalk to the lot, she crossed a grass area, jumped across a retaining wall, and fell injuring herself

NOT COMPENSABLE• This was a personal risk, which

exposed claimant to a risk entirely separate from her employment responsibilities


Caterpillar Tractor Co. v Industrial Commission, 129 Ill.2d 52 (1989)

• Claimant stepped off a curb onto a blacktop driveway in route to his car parked in the company parking lot

• There was a slight cement slope for drainage between the curb and the blacktop driveway• As the claimant stepped off the curb his right foot half landed on cement and half on the

blacktop driveway and he twisted his ankle• The cement incline was dry and there were no holes, obstructions or rocks• The claimant did not slip, trip or fall

NOT COMPENSABLE• There was no defect or hazard• Claimant did not trip, slip or fall• Nothing had increased claimant's risk of harm• All members of the general public confront risk of traversing curbs

Additional Cases


Vill v Industrial Commission, 351 Ill. App.3d 798 (2004)

• Claimant was a security guard and parked in a lot designated for use by security guards

• Claimant injured her knee while exiting her vehicle; as she squeezed out of the vehicle her foot caught in a crack in the parking lot surface

NOT COMPENSABLE• The risk claimant faced is no different than risks faced by the general

public

Additional Cases


Lichtfield Healthcare Center v Industrial Commission,

349 Ill. App3d 486 (5th Dist. 204)• Claimant was a nursing assistant and parked in the company parking lot and clocked into

work • Claimant returned to her car to obtain a belt required to perform her job• While walking back to the building claimant tripped on uneven piece of concrete in the

parking lot (photo of concrete was in evidence)• Claimant's employer was the sole occupant of the building• Employer was in charge of maintaining building and the surrounding areas• Claimant was not required to park anywhere specifically

COMPENSABLE• Accident was clearly in the course of • Presence of defect/hazard was shown• Claimant was exposed to this defect more frequently than the general public,

constituting an increased risk

Additional Cases


Morse-Harvey v Industrial Commission, 345 Ill. App.3d 1034 (2004)

• Claimant was a waitress and parked in the lot in the rear of the restaurant where she worked at the employer's direction

• There was a parking lot in front of and at the rear of the restaurant and both were owned and maintained by the employer

• Claimant slipped and fell on ice and snow

COMPENSABLE• Ice and snow were a hazard• Employer "provided" the lot• Employer restricted where the employee could park (he wanted the front

lot saved for customers)• The ice and snow in the rear lot was a greater risk to employees than the

general public

Additional Cases


Suter v. Illinois Workers’ Compensation Com’n, 376 Ill.Dec. 261, (Ill App 4th 2013,

1300049 WC)• Claimant was a loaned employee• At premises of borrowing employer, the owner of the premises had the

duty to maintain the parking lot• The building manager assigned claimant her parking space where other

employees of the borrowing employer were asked to park• Claimant slipped on ice after closing the door to her car after arriving at

work and was injured

COMPENSABLE

Additional Cases

PARKING LOTS & ADJACENT ROADS

25Parking Lot Cases - GSS


A Hypothetical Case• Claimant arrived at company parking lot 15

minutes before his shift starts• The lot where claimant parks is one of three lots

designated for employees• The general public also parks in these lots when

visiting the employer's facility • Each lot is located across the street from each of

the building's three entrances• The employer owns the building, all paring lots

& surrounding property, including the roads that separate the building from the parking lots

• Each parking lot holds 500 vehicles• There are two cross walks going from each

parking lot across the road from the buildings entrances

• The cross walks are not controlled with traffic signals, speed bumps or stop signs nor crossing guards

• At the change of shifts there is increased traffic coming into and leaving the parking lots

• Claimant was instructed which lot to use• The street claimant was crossing is owned &

maintained by the employer but is also used by the general public, particularly by traffic going to and from another employer at the end of the road

• While the claimant was crossing at one of the crosswalks he was struck by a vehicle being driven ay a co-worker who had punched out 15 minutes earlier after completing his shift

• Claimant suffered serious injuries in the accident• The co-worker who struck the claimant has an

auto insurance policy with $20,000 limits on his liability coverage

• The claimant has UM coverage for up to $1 million on his auto insurance policy


The Issues

1. Is the accident compensable?2. If compensable, who can claimant

sue?3. If not compensable, who can

claimant sue?4. If claimant sues the co-employee,

does the employer have a lien on his recovery?

5. Could the employer become a third party defendant in claimant's civil case against the co-employee?

6. Could the employer be sued directly?


THE LAWOscar Meyer Food Corp v Industrial Commission, 146 Ill. App.3d 315 (1986) • Quitting time with many employees leaving company

facility and exiting company parking lot at the same time

• The company parking lot is across the street from the plant

• The same company maintained the parking lot and the road

• The claimant was struck by a vehicle, while walking to the parking lot after her shift ended

• One of the claimant's co-employees who had just exited the parking lot after leaving work at the end of the shift was driving the vehicle that struck the petitioner

• Citing Osborne v Industrial Commission, 50 Ill.2d 150 (1972) which circumstances were identical to those in this case

COMPENSABLE

Williams v Country Mutual Insurance, 28 Ill. App.3d 274 (1st Dist. 1975)• Two co-employees on their way to their work

stations (claimant had already punched in) were in a vehicular collision on a street maintained by the employer

• The road where the collision occurred was under the care, maintenance and control of the employer

• The road where the collision occurred was on the employer's property and was not used by the general public

• Vehicle stickers had been issued by the employer to their employees

• The employer's security investigated the accident

COMPENSABLE


THE LAWHess v Industrial Commission, 79 Ill.2d 240 (1980)• Claimant parked in the company parking

lot and then crossed a public road using a cross walk controlled with a traffic light to get to the employer's premises

• Claimant was struck by a vehicle while crossing the public road

• The street where the accident occurred was not under the employer's control

• The claimant was not acting at the direction of the employer when she crossed the street

NOT COMPENSABLE

Sangster v Keller, a/k/a Becky Wagoner, 226 Ill. App.3d 535 (1992)• Plaintiff was injured in a vehicular

accident between two co-employees at the end of their shift while exiting the employer's driveway

COMPENSABLE