Premises Liability: The Impact of the “Going or Coming” Rule on Tort Liability

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From the desk of Jeff Eberhard:

In Oregon, workers’ compensation is an exclusive remedy against an employer, which means the employee cannot pursue civil litigation against that employer. Therefore, knowing how broadly Oregon courts interpret which injuries are covered by workers’ compensation is important to adjusting liability claims. The Court of Appeals recently analyzed the law surrounding the “going or coming” exception.

Claims Pointer:

In this opinion, the Oregon Court of Appeals found that a slip-and-fall injury in an icy parking lot was covered by workers’ compensation. Notably, the parking lot was not owned by the employer, but rather considered a common area for which the employer’s landlord had “sole control” over. Regardless, the court found the injury compensable because the employer had the ability to request maintenance or repairs of the parking lot.

Bruntz-Ferguson v. Liberty Mutual Ins. et. al., 310 Or App 618 (April 14, 2021)

Facts:

In this case, the claimant, Ashley Bruntz-Ferguson, was working at a call center in Salem. She had arrived at work for her 5:00 a.m. shift and the parking lot was snowy and icy. However, before she was able to make it inside, she attempted to step off a curb in the parking lot and ended up falling backwards off the curb and was injured. The claimant’s employer did not own the building, but instead leased the office space, access to the common area, and parking spots from a landlord. The curb where claimant was injured was considered a “common area” under the lease. The employer also paid additional rent for its share of maintenance fees for upkeep of the common areas and could request repairs of those areas. If the landlord failed to make a requested repair, the employer would be allowed an abatement of rent.

After the injury, the claimant filed a workers’ compensation claim, which her employer denied. The claimant requested a hearing, and the administrative law judge (ALJ) upheld denial of her claim. The workers’ compensation board affirmed the ALJ’s order. The claimant then sought judicial review by the Oregon Court of Appeals.

Law:

An injury is covered by workers’ compensation when a person is injured at work and the injury “arises out of and in the course of employment.” ORS 656.005(7)(a). A claimant’s injury must meet both prongs of this test. The “arising out of” prong looks to the connection between the injury and the employment, while the “in the course of” prong examines the time, place, and circumstances of the injury.

Under the “in the course of” prong, Oregon recognizes that injuries sustained while “going and coming” from work are not compensable. However, there is one exception to the “going and coming” rule, which is the “parking lot” exception. Injuries sustained “on or near the premises” of the place of employment while the claimant is going or coming are compensable. One of the tests to determine if the injury occurred on or near the premises, is to analyze if the employer exercised some control over the property where the injury occurred.

In this opinion, the Court of Appeals first addressed the “in the course of” prong. The court examined the control necessary to satisfy this prong. Based on a prior Court of Appeals opinion, the court found that the ability to request repairs in the common areas does amount to some control of those areas. Notably, the analysis for this prong focuses on the degree of control and not whether the employer has actually requested repairs.

The “arising out of” prong is satisfied if the risk is connected with the nature of the work or the work environment exposed the claimant to the risk. Risks that are compensable are ones that are “distinctly associated with employment.” However, “personal risks,” i.e., dying from natural causes or disease while at work, are not compensable. “Neutral risks” are risks that put the claimant in a position to be harmed because of the conditions of the employment. Lastly, no matter the risk, a causal connection must be found between the employment and the injury.

Analysis:

In determining if the employer had enough control over the area where the claimant was injured, the court examined the “some control” the employer did have. In the lease agreement, the employer had the right to request repairs of the common areas. Further supporting this, the employer was entitled to a rent abatement if, after proper notice, the landlord failed to make the requested repairs. Even though the common areas were under the sole control of the landlord, the fact that the employer had the right to request repairs and the potential of rent abatement for failure to repair. There, the Court of Appeals found this was sufficient to establish control necessary to support the “in the course of” prong.

As for the “arising out of” prong, the Court of Appeals determined the snowy and icy conditions of the parking lot were a “neutral risk.” Ultimately, the court concluded that the claimant was engaged in “normal ingress” when she was walking to enter the call center building. This “normal ingress” was an activity related to her employment because she needed to be present at the call center in order to perform her job duties.

Lastly, the court noted that although the employer could not control the icy weather conditions, it could control its response to the conditions, by requesting plowing or taking other precautions. The snowy conditions were not enough to break the causal connection between the injury and the claimant’s employment. Ultimately, the Oregon Court of Appeals found that the claimant had satisfied both prongs of the test and reversed the board’s denial of the injury.

The Big Picture:

The fact that workers’ compensation is an exclusive remedy against employers, a plaintiff cannot pursue a civil action against her employer for a covered injury. Thus, if an injury is covered by workers’ compensation this can narrow down who, and how many other defendants, can share liability in a civil suit. Specifically, immune employers’ fault cannot even be considered by the jury, which can impact the apportionment of fault of the named defendants. Therefore, understanding the law is needed if you have a “coming or going” claim.