As the harsh conditions of winter wind down in the Midwest, slip and fall claims tend to ramp up. Traditionally, injuries sustained as the result of a hazardous condition in an employer maintained parking lot have supported a finding of compensability. Suter v. Illinois Workers’ Compensation Comm’n, 2013 IL App (4th) 130049WC. However, recent decisions from the Illinois Appellate Court and Illinois Workers’ Compensation Commission have narrowed the scope of what are considered “hazardous conditions” under neutral risk analyses in evaluating compensability of parking lot slip and fall claims.
Generally, injuries by way of slip and fall while traveling to and from work are not compensable unless they fall within a distinct exception. The “parking lot exception” allows recovery where the employee is injured in a parking lot provided by and under the control of the employer. Suter v. Illinois Workers’ Comp. Comm’n, 2013 IL App (4th) 130049WC. This exception applies under circumstances where the employee’s injury is caused by some hazardous condition in the employer maintained parking lot. Because risks typically associated with a parking lot slip and fall are considered “neutral risks,” which have no particular employment or personal characteristics, the employee must prove that he or she was exposed to the risk to a greater degree than the general public. Dukich v. Illinois Workers’ Comp. Comm’n, 2017 IL App (2d) 160351WC.
Illinois courts have traditionally held that snow and ice constitute a “hazardous condition” supporting compensability. Suter v. Illinois Workers’ Comp. Comm’n, 2013 IL App (4th) 130049WC. In Suter, the Illinois Appellate Court held that the employee’s injury upon slipping and falling on ice in an employer maintained parking lot arose out and in the course of her employment, reasoning that “where the claimant’s injury was sustained as a result of the condition of the employer’s premises, this court has consistently approved an award of compensation.” The court further held that the parking lot was considered part of the employer’s premises, thus the injury was compensable.
In Dukich v. Illinois Workers’ Comp. Comm’n, the Illinois Appellate Court refused to extend the reasoning provided in Suter to wet pavement. The court held that walking on wet pavement does not establish a risk greater than that faced by the general public. Dukich, 2017 IL App (2d) 160351WC. In this case, the employee slipped and fell in the employer maintained parking lot. She testified the parking lot was wet due to rain and “the risk she encountered was distinctly associated with her employment because the wet pavement that caused her to fall was located on her employer’s premises.” The court held that an outdoor, paved surface wet from rainfall did not constitute a hazardous condition absent ice, snow, or some other defect or hazard, noting the wet pavement upon which the employee fell was no different from any other wet pavement. In other words, when analyzing the risks posed by exposure to the elements or “acts of God,” the court applied neutral risk principles.
Similarly in Smith v. Manhattan Park District, the Commission found the accumulation of snow in the parking lot represented a natural accumulation and there was no evidence that the employer contributed to a hazard. Smith v. Manhattan Park District, 17IWCC0462 (2017). While the employee testified her employer plowed and salted the lot prior to the start of the work day, the evidence established it continued to snow during the day. The Commission found the employer maintained parking lot was also open to the general public. The evidence established that employees were free to park anywhere in the lot, on the street, or in the Park District’s other parking lot. In finding the employee’s injury non-compensable, the Commission reasoned that employees and members of the general public were exposed to the same risks associated with natural snow accumulation.
Dukich and Smith certainly narrow the scope of which “hazardous conditions” employees are exposed to a greater risk than the general public in compensable parking lot slip and fall claims. Under this new case law, rain and the natural accumulation of snow in an employer maintained parking lot do not trigger compensability. Employers can and should deny slip and falls under these circumstances.