By: Amanda Tapscott Belliveau, Esq.
The recent cold snap will likely result in an increase in claims alleging slips or falls on snow or ice. The claims must be analyzed on a case-by-case basis in order to determine whether the injury arose out of and occurred in the course of the employment.
Arising out of Analysis
Generally, ice or snow will be considered an added risk. However, a claimant must relate an injury to the ice or snow in these cases.
In Schmidt v. Old Dominion University, a claimant testified that she slipped off a landing, but she could not identify what caused her to slip. She testified that it could have been water as it was raining outside, but that she did not know if there was water or anything else in the area where she slipped.
The Commission found that she did not meet her burden – there may have been water on the landing, but it was equally probable that there was no water on the landing, as the presence of water was merely conjecture by the claimant. The same concept applies to ice and snow. It is important to assess whether the claimant identifies ice as being the cause of her slip. It is also important to recognize the Commission’s ability to make a reasonable inference. For example, if the claimant says that he does not know for sure if he slipped on ice, but that there was ice “all over” the parking lot in the area where he slipped and he believes that is what caused him to slip, the Commission is likely to reasonably infer that he slipped on ice.
Suppose an employee identifies ice in a parking lot as the cause of their fall. The arising out of analysis is often combined with an in the course of analysis in these types of claims in order to determine whether the person was in the course of his employment at the time of the fall, and whether that particular hazard (ice) is an added risk of the employment, as opposed to a risk to which the general public and employee are equally exposed.
In the Course of Analysis
If an ice-related slip occurs, both the going and coming rule and the extended premises doctrines must be analyzed. Under the going and coming rule, injuries that occur during travel to and from work are generally not compensable unless that travel falls within one of three exceptions:
- the transportation is provided by the employer or the employee is paid for travel time;
- if the area where the injury occurred is the sole means of ingress or egress or if that path is constructed by the employer;
- when the employee is charged with an employment-related duty or task for the employer at the time of the accident.
Examples of scenarios that fall into these exceptions:
- An employee receives rides from his supervisor to and from work. The supervisor drives a large pick-up truck. After work, the employee slips on ice on the step-bar of the pick-up truck, causing him to fall and injure himself.
- While leaving a job site to get to their cars, employees either walk across an open dirt area or they can walk across a wooden path constructed by the employer. An employee slips on snow that gathered on the walkway.
- An employee leaves work and drives to the bank to make a deposit at the request of the employer. After exiting her vehicle and walking to the bank, the employee slips on ice in the bank’s parking lot.
In addition to the going and coming rule, an extended premises analysis should be performed for claims where a slip occurs in a parking lot or walkway outside the employer’s premises. Under the extended premises doctrine, parking lots can be considered the “extended premises” of the employer if it is found that the employer maintains sufficient control over that area. In other words, when in that parking lot, the employee would be considered to be at work if the extended premises doctrine applies. The Commission weighs several factors:
- whether the employer maintains the lot;
- whether the employer assigned the employee a parking space in an area of a shared lot;
- whether the lot is exclusively used by the employer; and 4) whether the employee is provided parking by the employer as a fringe benefit. Likewise, the extended premises doctrine can also be applied to injuries that occur on property in close proximity to that of the employer, even if that property is not owned and maintained by the employer.
In Griffin v. Sandler Management Company/Tidewater Financial, the claimant sustained injuries when she slipped on black ice in a parking lot while walking to her car after the workday. Four businesses, including her employer, occupied the building next to the parking lot, and the claimant did not have an assigned parking space. The Commission found that the claim was not compensable, as the injury occurred in a public parking lot that was not owned or maintained by the employer, and specifically in an area of the parking lot open to all tenants and customers of the strip mall. As this was a common area, it was found that it was not the only means of ingress and egress for employees. Griffin v. Sandler Management Company/Tidewater Financial, JCN VA00000392948 (July 18, 2012).
In Capital Area Pediatrics, Inc. v. Eken, the claimant slipped on ice at the sidewalk entrance next to her workplace. The Commission found that though this walkway was not owned or maintained by the employer, it was located in such close proximity to the space of the employer that it is considered the employer’s extended premises. Capital Area Pediatrics, Inc. v. Eken, Rec. No. 1557-12-4, 2013 Va. App. (May 7, 2013).
Examples of facts under which a slip in a parking lot or sidewalk may be compensable: The employer is responsible for plowing/clearing the area of the parking lot immediately in front of their business, and an employee falls on ice in that area; the employer is the sole occupant of a building with a dedicated parking lot for use of employees and customers of the employer; the employee is provided with an assigned parking spot by the employer; there is only one entrance to a building that houses several employers, and the employee slips on ice on the walkway to that entrance.
The compensability of sidewalk and parking lot slips are determined on a case-by-case analysis and are based upon several factors as discussed above. The primary questions are:
- Was the slip caused by (or likely caused by) a hazard such as snow or ice; and
- Did the slip occur on the employer’s premises or otherwise where the employee was expected to be due to a work-related task? When addressing such a case, it is important to explore whether the claimant can identify the cause of the slip, and to explore issues such as ownership, maintenance, and proximity of the area of the slip in relation to the employer.
Additionally, the employer’s control or direction over the employee being in the location of the slip is also an important element to consider. These facts should be obtained from both the employee and employer, if possible, and assessed under both arising out of and in the course of guidelines.
