Stormy Weather for Parking Lot Falls

April 2019

By: Charles M. Maring, II

Employee accidents in parking lots on the employers' premises can present a "slippery" analysis in determining compensability. A recent decision from the Court of Appeals, Cher Smith v. IWCC et al., suggests a new standard for determining compensability in these cases.

Before discussing the case facts, we should point out a procedural issue. The Smith case was decided under Rule 23 meaning it will not be published and is not controlling on any future case. That could change but as of right now, publication is not expected.

Although the recent decision is not published, it bears consideration as a potential "forecast" of where the courts may be headed in this area of litigation. This article first explores the "solid ground" of current precedent on parking lot slip and falls, but goes on to issue a "winter storm warning" about the new standard discussed in the unpublished Court of Appeals decision.

Solid Ground: Current Precedent

The leading case on parking lot falls is currently Wal-Mart Stores v. Indus. Comm'n, 326 Ill. App. 3d 438, 761 N.E.2d 768, 2001 Ill. App. LEXIS 1454, 260 Ill. Dec. 585. In thatcase, an employee fell on ice in a parking lot. The lot was used by both employees and the public. Employees were requested, but not required, to park in a specific area although on the day of the accident, the employee was walking to a friend's car who was waiting in the recommend employee parking area.

The Court in Wal-Mart focused its analysis on whether the employee's injuries arose out of her employment; that is, whether her employment exposed her to a greater risk of falling than the general public. The parking lot where the employee fell was used by the general public and employees alike, so that the employee was exposed to the same risk as the general public. Therefore nothing distinguished the employee's risk of falling from that of a member of the general public. Thus, the accident did not arise out of an employment-related risk, and her injuries were not compensable.

Subsequently, applying the Wal-Mart analysis, the Court of Appeals found injuries compensable in Mores-Harvey v. Indus. Comm'n (Bob Evans Rest.), 345 Ill. App. 3d 1034, 804 N.E.2d 1086, 2004 Ill. App. LEXIS 100, 281 Ill. Dec. 791. Unlike in Wal-Mart, the employer in Mores-Harvey had directed the petitioner to park in a specific area of the lot. As the employer restricted the employee's choice over where to park, the Court held that her exposure to risk was greater than the general public who were free to park any- where.

Severe weather ahead? The potential impact of Smith

Enter the subject decision of Cher Smith v. IWCC, involving the claim of an employee who fell in her employer's parking lot. She alleged that her supervisor told her to park in a space adjacent to her office building, although, the spaces were also open to the general public and other employees. The spots were available on a first-come, first-serve basis. There was also another lot available where Ms. Smith could park.

The Court of Appeals noted that employees typically bear the burden of establishing their condition "arose out of" their employment by establishing its connection to a specific risk connected with, or incidental to, the employment. The court then proceeded to proclaim such a risk analysis unnecessary when an injury "occurred on premises due to an unsafe or hazardous condition." It held the hazardous condition of the lot alone rendered the risk employment-related and alleviated Ms. Smith of her burden to prove that she was exposed to the risk of falling to a greater degree than the general public.

The Smith decision erases the earlier distinction, illustrated by the Wal-Mart and Mores-Harvey decisions, between accidents occurring in lots "open to the general public" and accidents occurring in areas where employers direct their employees to park.