Slip and fall in parking lot of leased premises – who pays?

Much of the case law on “when an accident is compensable” is driven by petitioner’s claims: claimants have made new law while seeking compensation for injuries playing Russian Roulette with loaded pistols, for lighting their own hair on fire on their lunch breaks, and most recently for allergic reactions to perfumes. But a little known fact is that much of the law “expanding” workers’ compensation coverage to new vistas has been driven by employers. The Appellate Division looked at just such a case on April 20, 2010, deciding that a parking lot injury was compensable under the Workers’ Compensation Act.

Employer’s have sought to expand the realm of ‘compensable’ injuries because if an injury at work is ‘compensable’ under the Workers’ Compensation Act, then generally the employer cannot be sued in civil court. This is important to employers because awards in civil court can include ‘pain and suffering’ – increased damages – and typically are much higher than awards of compensation.

The area we have seen employers litigate these issues most strongly has been in cases where the employee is injured in a parking-lot slip-and-fall.

In the recently decided cases Rosa Maria Borbon v. Fantasia Industries, the plaintiff alleged a personal injure cause of action against her employer and the landlord. Plaintiff Borbon alleged that the parking lot was ‘negligently maintained’ which led to her slip-and-fall type accident.

The employer, Fantasia Industries, was the only tenant occupying the property. The terms of the lease held that the tenant (Fantasia Industries) was responsible for property maintenance not he property. The landlord, who was also sued by Plaintiff Borbon, did not have any responsibilities under the lease to maintain the property.

Normally, injuries which occur in an employer’s prying lot are compensable. The Statute which controls when and where and injury is compensable states that “[e]mployment [starts] when an employee arrives at the employer’s place of employment to report for work and [ends] when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; [unless] the employee is required by the employer to be away from the employer’s place of employment, [in which case] the employee [is] deemed to be in the course of employment when engaged in the direct performance of duties assigned or directed by the employer.” See N.J.S.A. 34:15-36.

Parking Lot cases present numerous problems.

As shown in the cases cited below, injuries sustained in parking lots will be found compensable if the employer “maintained and controlled” the parking lot in question, even if the injury was sustained when the employee was released from work duties, and was returning to a parked car at the end of a shift.

In Rosa Maria Borbon v. Fantasia Industries, the employer (Fantasia Industries) admitted that the accident occurred on their premises and was compensable. The Appellate Court found that the landlord was insulated from civil suit under the ‘Workers’ Compensation Bar’ as the property maintenance was the responsibility of the employer. This case demonstrates the strength of the ‘workers’ comp bar’ in repelling claims – in this case the bar was invoked by a defendant who was not an employer but still got the benefit of the compensation bar preventing a civil lawsuit, with the possibility of a higher award against the employer directly.
Case: Rosa Maria Borbon v. Fantasia Industries, A-5701-08T3 (App. Div. Decided April 20, 2010).

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com