41
Fla. L. Weekly D2301aTop 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.)