*By Steven P. Dlott
Falling on ice is a common hazard this time of year. Keeping walkways
and parking lots free of snow and ice is an almost impossible task in
this climate, even for the most safety-conscious employers. Inevitably,
an employee will slip on ice either coming to or leaving work.
Generally, employees, with a fixed place of employment who are
injured while traveling to or from their place of employment, are not
entitled to workers’ compensation benefits. This is known as the
“coming and going” rule. The rationale behind this rule is that
workers’ compensation protection was only intended for those hazards
unique to an employee’s employment and not the risks and hazards
encountered by the general public in the normal course of travel to and
from employment. As the Supreme Court noted in enunciating this rule,
the workers’ compensation system was never intended to make the employer
“an absolute insurer of the employee’s safety.”
For example, assume an employer is located in an office building or
in an area that is shared with other businesses (e.g., a strip mall).
In that situation, since the parking lot or sidewalks used by the
employees coming to or leaving work are shared with the other
businesses, any fall in those areas would be considered off the
employer’s premises. In that situation, the “coming and going” rule
would apply and workers’ comp liability would not likely exist.
Alternatively, assume an employee is injured on a company owned parking
lot. In that case, the “coming and going” rule would not apply, and the
employer would be liable for the employee’s injuries.
Nevertheless, in some cases, the “coming and going” rule does not
apply. In such cases, an employer could be liable for an employee’s
slip on ice at work. One exception to the “coming and going rule” is
known as the “special hazard” rule. Under this rule, an employee with a
fixed place of employment may be entitled to workers’ compensation
benefits if he/she sustains injuries because of a “special hazard.”
However, the “special hazard” exception only applies if 1.) the
employee’s injury occurred off the employer’s premises; and 2.) the
employee can show that there was something distinctive in nature or
quantitatively greater about the risk involved that led to the accident.
Another exception to the “coming and going” rule is known as the
“zone of employment” exception. Under this exception, courts consider
the degree of control the employer had over the injury site. Referring
back to the earlier example of a shared parking lot or sidewalk, the
employer presumably does not control the maintenance or upkeep of the
parking lot. This lack of control means that the employee was not
within the “zone of employment” at the time of the injury and no
workers’ compensation liability would attach. However, an employer who
did exercise control over the maintenance of the parking lot-such as
snow removal- could be liable for a fall under the “zone of employment”
exception.
Employers can exert control in other ways as well. In addition to
the maintenance consideration, courts also look at the means of access
to the employer’s place of business. As a result, another exception to
the “coming and going” rule can occur where only single entrance or exit
to the employer’s place of business exists. The rationale for this
exception is that the employee had no alternative as to the path chosen
to enter or exit the building. Courts construe this absence of choice
as another example of the employer’s control over the access to its
business.
Despite these general principles, employer liability for such slips
and falls is very fact specific-and often blurred. There are a variety
of factors the Industrial Commission and courts look at in evaluating
such liability. Seemingly trivial or incidental facts to an employer
may often determine whether an employer faces liability at an Industrial
Commission hearing. Employers should consult and work with experienced
workers’ compensation attorneys to ascertain whether any defenses exist
to challenging slip and fall claims.
