Coming and going rule

Coming and going rule

Workers’ traveling to and from work are not covered under WC. Coming and going rules ends when the employee enters or leaves the employer’s premises. 

Pertinent Coming and going exceptions:

Premises exception - What are the employer’s premises: Does Home depot own or control the parking lot??

Special hazards exception – a special hazard on a normal route used by an employee to enter and exit from the place of work can under certain circumstances become a hazard of employment 

Case law

Doctor's Business Service, Inc. v. Clark, 498 So.2d 659, 11 Fla. L. Weekly 2444 (Fla. App. 1 Dist., 1986) 

Barbara S. Clark, who was injured on a public sidewalk while proceeding from the employer-owned parking lot to the entrance of her employer's office building, suffered a compensable accident under the Florida Workers' Compensation Act. We therefore affirm.

In that case, the claimant parked in the employer-owned parking lot and proceeded to the employer's office on the public sidewalk. She slipped on the sidewalk near the entrance to the employer's business injuring her left ankle and both knees. According to her undisputed testimony, her fall was caused by a misstep on a rough and uneven part of the public sidewalk. The deputy commissioner ruled that Clark's injuries, which occurred on a public sidewalk while she was taking the most direct route between two portions of the employer's premises were compensable and constituted an exception to the going and coming rule.

There is no doubt that the direct route between a company owned or leased parking lot is considered "on premises" for the purposes of workers' compensation coverage. Jenkins v. Wilson, 397 So.2d 773 (1st DCA Fla.1981) and Horrobin v. Parkway General Hospital, IRC 2-3340 (1978).

Had the claimant used public parking and sustained the same accident in the same location, she would not have been covered for workers' compensation purposes. Greenberg v. Creative Group Advertising, 6 F.C.R. 281 (1960). (footnotes omitted)

This court recently applied the "special hazard" exception in Petroske v. Worth Avenue Burger Place, 416 So.2d 856 (Fla. 1st DCA 1982). There, the claimant stepped in a pot hole in the driveway which abutted her employer's business and through which she normally entered to go to work, and was injured. Her injuries were held to be compensable though the driveway was not the sole route to her place of employment, and notwithstanding the fact that the accident occurred on a site not owned by her employer and which was used by other tenants in the building which housed her employer's business. The court concluded that the pot hole constituted a special hazard on an access route which was served primarily to provide entry and exit to the claimant's place of employment.

Security Bureau, Inc. v. Alvarez, 654 So.2d 1024 (Fla. App. 1 Dist., 1995)

The JCC held that the injury was compensable because it found that claimant had been directed to park in a public parking Page 1025 lot thereby making that parking lot a part of the zone and environment of her employment. The JCC's finding in this regard is not supported by the evidence, and, as a matter of law, claimant's injury is not compensable under any exception to the going and coming rule. We therefore reverse.

The going and coming rule provides that injuries sustained by an employee going to or coming from work are not compensable. There is an exception to the going and coming rule, called the premises rule. Under the premises rule, an injury sustained by an employee with fixed hours and place of work who is injured while going to or coming from work is in the course of employment if it occurred on the employer's premises and not if it occurred off the employer's premises.

The going and coming rule, the exception thereto known as the premises rule, and the exceptions to the premises rule are explained in Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986), review denied mem., 506 So.2d 1041 (Fla. 1987). Under the exceptions to the premises rule, off-premises injuries may be compensable if certain circumstances are present. Those circumstances include special hazards on the normal route to work, travel on the public way between two parts of an employer's business, and injury in an area which is customarily used by the employer for his own purposes.

The crucial question is not whether the claimant was directed to park in the lot in which she was injured, instead of closer spaces. Rather, to fit within this exception to the premises rule, the lot in which the injury occurred must be under some control or subject to some special use by the employer.

off-premises injury not compensable in absence of evidence that the employer ever modified, controlled or habitually used the road where the injury took place for its own purposes). In other words, the employer's use of the property must be for purposes other than those shared by the general public

in Maas Brothers v. Peo, 498 So.2d 657 (Fla. 1st DCA 1986) a different fact situation led to the opposite result. As in El Sirocco Motor Inn, Inc. v. Prekop, the employer in Maas Brothers v. Peo neither leased, owned nor maintained the parking lot. Parking spaces near the store entrances were being reserved for customers. Therefore, employees had been directed to park in a particular area of the public parking lot. The employee was injured in the parking lot, and the injury was held to be compensable. However, the distinguishing fact is that the area of the lot in which the employees were required to park was near some ongoing construction work which created a special hazard which led to the claimant's injury. 

We conclude that in the absence of any evidence of actual domination or control by the employer over the parking lot and its use, this injury is not compensable under any exception to the going and coming rule.

Ryan v. Boehm, Brown, Rigdon, Seacrest & Fischer, 673 So.2d 494 (Fla. App. 1 Dist., 1996)

We reverse because determination of the issue in this case depends upon an established exception to the going and coming rule, and does not involve a special hazard analysis.

In this case, the sole and proximate cause of the claimant's injury appears to have been her failure to lift her foot high enough to cross a curb of apparently normal height after crossing the street on her way to work. The claimant subjected herself to the fall, and there was no proof that the curb was defective or in disrepair. Without that evidence, I find there is no proof that a normal curb on a public street constitutes a hazard, special or otherwise....

As the JCC recognized, the special hazard exception to the going and coming rule brings an off-premises injury within the course of employment on proof that a special hazard on the normal route to or from employment caused the injury.

Appellant argues, however, that the special hazard exception does not control this case. Instead, she contends that because her injury occurred while traversing the distance between two distinct portions of the employer's premises, and in a manner reasonably required by her employment, she was within the course of her employment without regard to the special hazard rule. We note that despite the employer's argument to the contrary, the JCC rejected the notion that because claimant crossed N.E. 1st Street in the middle of the block, rather than at the corner, she engaged in a deviation "from her employment in such a way as to adversely affect her entitlement to benefits."

We find that the special hazard rule, urged by appellees, only comes into play if a workers' compensation claimant is otherwise outside the course of her employment. If, under the law and facts of a particular case, the claimant is within the course of employment at the time of her injury, no need exists to resort to the special hazard rule.

"There is little doubt that the public sidewalk or street between two parts of the business premises is considered part of the premises for workers' compensation purposes." Clark, 498 So.2d at 662, citing Fernandez v. Consolidated Box Co., 249 So.2d 434 (Fla.1971). "There is no doubt that the direct route between a company owned or leased parking lot is considered 'on premises' for the purposes of workers' compensation coverage." Clark, 498 So.2d at 662, citing Jenkins v. Wilson, 397 So.2d 773 (Fla. 1st DCA 1981). As observed by then Deputy Commissioner DeMarko, whose order was approved by this court in Clark, "the parking lot extends the employer's premises to include the direct route to and from the office." 498 So.2d at 662.

The fact is that Ryan had to cross the street in order to get from the parking lot to the office. For purposes of the legal analysis, her misstep on the curb does not differ from a trip on a step inside the employer's office building. Again, referring to Judge DeMarko's order which this court approved in Clark, "it must be remembered that the (workers' compensation) act is basically no-fault in nature. The employer's liability has nothing to do with fault. Liability is based on the employment relationship. So it is that the negligent claimant is entitled to benefits against the totally innocent employer.... [T]he key element in establishing benefits in this case is the company owned parking lot."

Byerley v. Citrus Pub., Inc., 725 So.2d 1230 (Fla. App., 1999)

Byerley was injured in an accident which occurred on the employer's premises. She had completed work, had punched out for the day, and was on her way home when the accident occurred. Previously, Byerley had placed boxes which she intended to take home on the loading dock. In order to get the boxes, she deviated from the most direct route to the parking lot to get to the loading dock. On her way, she tripped over a bench with protruding runners that had been placed on the sidewalk adjacent to the loading dock. As a result of the accident, Byerley suffered a compression fracture of the vertebrae in her back, pulled her right groin muscle, fractured her left kneecap, and suffered numerous abrasions. Her total medical bills exceeded $30,000. 

Byerley filed a claim for workers' compensation benefits which was denied by the employer and its workers' compensation carrier. The notice of denial stated: "Injury did not arise out [of] the course and scope of [Byerley's] employment. Employee was clocked out and had exited the building, when she tripped over a bench on the pavement."

Byerley filed a tort action. The employer asserted in its answer, among other things, that Byerley's exclusive remedy was workers' compensation. See 440.11, Fla. Stat. The employer alleged that "Byerley was in the scope of her employment and the tort claim against Citrus Publishing is barred by the Workers' Compensation Immunity as provided by Florida Statutes."

The trial court granted the motion and entered summary final judgment in the employer's favor, finding "as a matter of law that the alleged accident occurred in the scope and course of Mrs. Byerley's employment and is the major contributing cause to her injuries." The court relied upon Perez v. Publix Supermarkets, Inc., 673 So.2d 938 (Fla. 3d DCA 1996), and Vigliotti v. K-mart Corp., 680 So.2d 466 (Fla. 1st DCA 1996), to support its decision. The trial court also stated, "Plaintiffs have not asserted estoppel [725 So.2d 1232] nor does this Court find that it is supported by the record presented." We disagree with this ruling.

In this case, the notice of denial stated that Byerley's injury was not covered because it did not occur in the course and scope of her employment. Byerley accepted and relied on the denial, bore her medical expenses, then sued the employer in tort as permitted by [725 So.2d 1233] the statute. Here, the elements of estoppel are shown, and therefore, the employer is not entitled to summary judgment on the basis of the Workers' Compensation Act.

Sentry Ins. Co. v. Hamlin, 69 So.3d 1065 (Fla. App., 2011)

Claimant was injured when he attempted to retrieve personal property from a car which his lender was repossessing from his employer's parking lot. There is no dispute that the accident resulting in the injuries occurred in the course and scope of Claimant's employment. The question we address focuses only on the first part of the coverage formula, ―arising out of work performed,‖ as set forth in section 440.09, Florida Statutes (2008).

Because Claimant was on a purely personal mission having no relationship to work, he is unable to demonstrate he suffered an accidental compensable injury arising out of a risk of his employment. Accordingly, we REVERSE the finding of compensability.

This workers' compensation claimant appeals an order of the deputy commissioner finding that her injury was the result of a non-compensable accident. We reverse.

Petroske v. Worth Ave. Burger Place, 416 So.2d 856 (Fla. App. 1 Dist., 1982)

       The claimant fell and was injured when she stepped in a pothole in the driveway abutting the employer's place of business. This driveway led to the rear entrance of the place of employment and the accident occurred just as claimant was about to enter the building through that door, as was her normal custom.

       The deputy commissioner found that the "special hazard" exception to the "going and coming rule" 1 did not apply because the driveway was not owned by the employer and was used by other tenants in the building which housed the employer's business. He also stated that the special hazard doctrine did not apply because the driveway was not the sole route to the place of employment, since the claimant could have entered through the front door.

       Whether or not the route on which the accident occurred was the sole means of ingress and egress to the place of employment has no conclusive bearing on whether or not the special hazard doctrine is applicable. Naranja Rock v. Dawal Farms, 74 So.2d 282 (Fla.1954). Nor does the fact that the accident occurs on a site leased by the landlord and shared with other tenants, in and of itself, preclude compensability. Stone v. Tuscawilla Club, 7 FCR 345 (1973). 

The decisive factor in determining the applicability of the special hazard doctrine in this case is the fact that the special hazard existed on an access route serving primarily to provide entry and exit to the place of employment.