Abbey Adams Logo

Defending Liability, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Are Available to Practice In Illinois
  • Practices
  • Blog
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Elisabeth K. Eubanks
  • Links
  • Contact Us

October 14, 2016 by Tom

Workers’ compensation — Compensable accidents — Trip and fall — Going and coming rule — Judge of Compensation Claims properly found trip and fall in a parking lot adjacent to employer’s leased place of business did not arise out of or in the course and scope of employment

41
Fla. L. Weekly D2301a
Top of Form

Workers’
compensation — Compensable accidents — Trip and fall — Going and coming rule
— Judge of Compensation Claims properly found trip and fall in a parking lot
adjacent to employer’s leased place of business did not arise out of or in the
course and scope of employment — Because no special hazard existed in the
parking lot, and because the employer did not have sufficient control of the
area where claimant fell for the area to be considered either part of the
employer’s premises or an area that was actually used by the employer, no
exceptions to the going and coming rule were applicable

CHRISTINE
QUINN, Appellant, v. CP FRANCHISING, LLC, CRUISE PLANNERS, INC. (MLM PLANNERS,
INC.) and ZENITH INSURANCE COMPANY, Appellees. 1st District. Case No.
1D16-0257. Opinion filed October 13, 2016. An appeal from an order of the Judge
of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: May 1, 2015.
Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for
Appellant. Thomas F. Scully, Sarasota, for Appellees.

(PER
CURIAM.) Claimant challenges a final order of the Judge of Compensation Claims
(JCC) that found her trip and fall in a parking lot adjacent to her employer’s
leased place of business did not arise out of or in the course and scope of her
employment. The JCC, in a well-reasoned order, determined that none of the
exceptions to the “going and coming” rule apply, and thus the injury was not
compensable. We affirm. See Evans v. Holland & Knight, 194 So. 3d
551 (Fla. 1st DCA 2016) (holding that parking lot neither owned, maintained,
nor controlled by the employer is not part of employer’s premises for purpose
of workers’ compensation).

With
regard to injuries that occur off of the employer’s premises while the employee
is going to or returning from her regular place of work, case law instructs
that such injuries generally do not arise out of or in the course of employment
and are not compensable. This rule is known as the “going and coming” rule. Doctor’s
Bus. Serv., Inc. v. Clark,
498 So. 2d 659, 662 (Fla. 1st DCA 1986). As
stated in Ryan v. Boehm, Brown, Rigdon, Seacrest & Fischer, 673 So.
2d 494, 495 (Fla. 1st DCA 1996):

As a general rule, “the
hazards encountered by an employee while he is going to, or returning from, his
regular place of work are not ordinarily incidental to the employment, and
injuries resulting from such hazards do not arise out of and in the course of
the employment.” Doctor’s Business Service, Inc. v. Clark, 498 So. 2d
659, 662 (Fla. 1st DCA 1986) (en banc). This principle is generally
characterized as a “going and coming” rule.

(Internal
citations omitted.)

The
“going and coming” rule is subject to a number of exceptions, however. Three
notable exceptions are where (1) special hazards exist on the normal route; (2)
the employee travels between two parts of the employer’s premises; and (3) the
area where the injury occurred was used by the employer for the employer’s
purposes. Id. at 496. The last listed exception is known as the “special
use” rule.

We
review the facts in this case to determine whether any of the exceptions are
applicable. Claimant tripped and fell in a parking lot adjacent to her place of
employment. The JCC reviewed photographs of the area where Claimant fell. He
found the following:

The photographs depict a
groove or separation between the asphalt surface of the parking lot and the
concrete curb. From the photographs, this groove appears to be present
throughout the parking lot wherever the concrete and asphalt meet. There
appears to be nothing unusual or out of the ordinary with respect to the
parking lot surface where the claimant fell. Specifically, there are no
potholes, construction lines, piles of debris or hazards of that nature.

Based
on the evidence, the JCC found no special hazard led to the accident, a finding
correctly conceded by Claimant to be supported by competent, substantial
evidence.

Thus,
the issue before us is whether the employer had sufficient control of the area
where Claimant fell in order for the area to be considered either part of the
employer’s premises or an area that was actually used by the employer for its
purposes.

In
the instant case, the parking lot in question was not leased by the employer.
The employer was not assigned any specific parking spaces within the lot where
the fall occurred. Instead, the employer, pursuant to its lease agreement for
its office space, was allotted 32 unassigned parking spaces for its
non-exclusive use. While the employer paid a fee to the landlord for
maintenance of the common areas of the leased premises, there is no showing
that the employer exercised any control over the maintenance or how the fee was
applied to the parking area.

Based
on these facts, the JCC correctly found the employer had insufficient control
of the parking lot either for the lot to be considered part of the employer’s
premises or for the employer’s use of that lot to be considered a “special
use.” The JCC stated:

In the instant case, the
parking lot in question was open to and used by the public. No evidence was
presented that the lot was used by the employer or its employees in any way
materially different from the public in general or that the employer excluded
others from it. Silva vs. General Labor Staffing Services, Inc., 995 So.
2d 1107 (Fla. 1st DCA 2008) (holding the “area used by the employer for his
purposes” exception did not apply because there was no evidence the employer
habitually used the parking lot for a special purpose, controlled it or
excluded others from it. As stated by the Appellate Court in that case, the
exception applies when the area is under the employer’s control or habitually
used for a purpose special to the employer).

The
JCC’s reasoning is supported by our recent case of Evans, 194 So. 3d
551. We find the facts of that case materially indistinguishable.

AFFIRMED.
(WOLF, ROWE, and MAKAR, JJ., CONCUR.)
 

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Automobile — Insurer who filed a claim under her automobile insurance policy after her vehicle was damaged in an accident sued insurer claiming breach of policy after insured declared the vehicle a total loss and paid her what it deemed the actual cash value of vehicle — Breach of contract — Insurer was entitled to summary judgment on claim that insurer breached the policy by using an illegal methodology to calculate actual cash value — District court did not err in ruling insurer’s methodology for calculating actual cash value complied with Florida law — As matter of first impression, Section 626.9743(5), Florida Statutes, which provides that, in calculating “actual cash value” of insured’s vehicle based on actual cost to purchase comparable motor vehicle “derived from … two or more comparable motor vehicles available [in local market area] within the preceding 90 days,” did not require that “actual cash value” equal actual cost to purchase comparable vehicle — Insurer’s use of the Uniform Condition Adjustment, advertised prices of comparable motor vehicles, and the Certified Collateral Corporation ONE Market Valuation system to calculate the actual cash value of insured’s vehicle complied with Florida statute — Statute did not require that insurer use “retail cost as determined from generally recognized motor vehicle industry source” if it utilized one of other two statutory alternative methods for determining cost to purchase comparable motor vehicle — Insurer was entitled to summary judgment on claim that it breached the policy by failing to pay, as part of vehicle’s actual cash value, dealer fees incurred in purchasing replacement vehicle — Insurer was not required to pay insured’s out-of-pocket dealer fees — Under Florida and Eleventh Circuit law, “actual cash value” in an insurance policy means replacement cost less depreciation, and replacement cost includes dealer fees if the policyholder is reasonably likely to need to incur dealer fees — Insured failed to satisfy the standard for inclusion of dealer fees in replacement cost where insured showed a reasonable likelihood that she would incur dealer fees if she chose to purchase her replacement vehicle from a dealer and that a policyholder is reasonably likely to purchase a replacement vehicle from a dealer, but failed to show that a policyholder is reasonably likely to need to purchase a replacement vehicle from a dealer
  • Torts — Punitive damages — Amendment of complaint — Action alleging that vibration from defendant’s installation of sheet piles during construction on its parcel caused damage to plaintiff’s building — Trial court erred in granting plaintiff’s motion to amend its complaint to assert a claim for punitive damages based on allegation of gross negligence where plaintiff did not make required evidentiary showing to support such a claim — Report produced by third-party contractor warning defendant against the use of large vibratory compaction equipment in construction project, when read together with contractor’s deposition testimony, offered no evidentiary support for plaintiff’s claim that contractor warned defendant against using vibratory equipment in installation of sheet piles — Plaintiff’s expert’s affidavit, which drew illogical conclusions from contractor’s report, offered no support for gross negligence claim
  • Torts — Premises liability — Malls — Dangerous condition — Landscaping features — Vicarious liability — Action against operator of mall arising from injuries plaintiff suffered after stepping into a hole or depression in a raised landscape area which separated mall’s parking lot from the sidewalk that led to mall’s entrance — No error in entering summary judgment in favor of defendant because, as a matter of law, the landscaped area was not a dangerous condition — Evidence that a few people had walked across the landscaped area to get to the sidewalk was not sufficient to create a duty where there was no evidence that the grass bed had become a well-trampled footpath or that the grass bed has been in continuous and obvious use as a pedestrian shortcut such that defendant was put on constructive notice of the condition — Defendant cannot be held vicariously liable for condition created by landscapers where landscapers were not found liable
  • Torts — Automobile accident — Permanent injury — Causation — Trial court improperly directed verdict on causation given conflicting evidence which would have permitted reasonable jury to conclude that plaintiff had a pre-existing back injury caused by weight training or prior participation in competitive crew rowing
  • Insurance — Homeowners — Coverage — Vandalism — Trial court erred by denying insurer’s motion for directed verdict where policy limited coverage to insured’s “residence premises,” and insured did not “reside” at the property at the time of loss — Fact that insured was no longer leasing the property and was intending to move back when property was vandalized does not alter analysis

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2023 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Employment Claims and Appeals Since 1982