Missouri: Court Weakens 'Equal Exposure' Defense In a New Parking Lot Case

A worker who injured his knee falling on a snowy adjacent parking lot while leaving work was awarded benefits.  Scholastic v David Viley, 2014 Mo App. Lexis 1207 (Lexis Advance), 2014 Mo App. Lexis 1207 (lexis.com), WD 77546 (Oct. 28, 2014)

This case is important for two reasons.  The commission awards benefits even though the employer did not own the lot.  What is more important is the proposition that a worker who falls on ice “at work” may recover benefits, even though the worker may have been equally exposed to falling at other locations away from work.

The case, like many parking lot cases, involves the application of two provisions affected by statutory reform.  Missouri redefined §287.020.5 (Lexis Advance), §287.020.5 (lexis.com) to do away with extended premises liability of workers claiming comp benefits on parking lots that were not controlled or owned by their employers.  “The extension of premises doctrine is abrogated to the extent it extends liability for accidents that occur on property not owned or controlled by the employer….”

Scholastic is a dispute over a simple factual issue: did the employer control the lot?  The employer contends it did not have control or much control of the lot.  The worker persuaded the Commission that there was sufficient control to trigger coverage.  The court found the case was not within the extended premises cases excluded by reform.

An important factor in the case was the degree of rights retained by the employer in the lease agreement.  The analysis is similar to Shearer v Convergys Corporation, 2010 MoWCLR Lexis 76 (Lexis Advance), 2010 MoWCLR Lexis 76 (lexis.com) in which the Commission scrutinized to lease language to show the employer exercises control of the lot.  Lease language was an important factor in Hager v Syberg’s Westport, 304 S.W.3d 771 (Lexis Advance), 304 S.W.3d 771 (lexis.com) (Mo. App. 2010) to show a lack of control. 

Scholastic also interprets §287.020.3(2)(b) (Lexis Advance), §287.020.3(2)(b) (lexis.com) which requires proof “it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in a normal non-employment life.”

In Hager v Syberg’s Westport, the claimant failed to prove a slip and fall arising out of employment because "[c]laimant could have slipped and fallen on an ice-covered parking lot anywhere, and thus, his injury comes from a hazard or risk unrelated to his employment.”

It is the meaning of “equal exposure” which makes Scholastic important.  The Western District departs from the initial post-Hager applications that a worker must show not only a work hazard but something more than his fall occurred not just from a generic environmental risk such as falling on ice.  Scholastic suggests the “equal exposure” has an extremely limited application and means equal exposure to the exact same risk at the exact same location.   The court relied upon Duever v All Outdoors Inc., 371 S.W.3d 863 (Lexis Advance), 371 S.W.3d 863 (lexis.com) (ED Mo. App. 2012), another slip on ice case, that claimant only needed to show they were at a hazard of slipping on ice arose because exposure to ice was a condition of employment.  Similarly, in Dorris v Stoddard County, 436 S.W.3d 586 (Lexis Advance), 436 S.W.3d 586 (lexis.com) (SD Mo. App. 2014) the claimant fell on a street crack and the employer lost on the equal exposure defense that because proof of a generic risk of falling on street cracks was not enough to deny benefits when work required him to traverse that specific crack. 

Scholastic does not remove the burden of proof of a work-related risk.  Johme v St. John’s Healthcare, 366 S.W.3d 504 (Lexis Advance), 366 S.W.3d 504 (lexis.com) (Mo. banc 2012).  Cases involving unexplained falls are not compensable even though they may be on premises.  Scott v Bellfontaine Garden Nursing Center and Rehab., 2014 Mo WCLR Lexis 121 (Lexis Advance), 2014 Mo WCLR Lexis 121 (lexis.com) (nursing duties), Gleason v Ceva Logistics, 2014 MO WCLR Lexis 69 (Lexis Advance), 2014 MO WCLR Lexis 69 (lexis.com) (rail car), Porter v RPCS Inc., 2012 Mo WCLR Lexis 206 (Lexis Advance), 2012 Mo WCLR Lexis 206 (lexis.com) (bathroom) Hemenway v North American Montessori, 2013 MO WCLR Lexis 46 (Lexis Advance), 2013 MO WCLR Lexis 46 (lexis.com) (smoke break on parking lot),  Burt v Benckiser, 2012 Mo WCLR Lexis 118  (Lexis Advance), 2012 Mo WCLR Lexis 118 (lexis.com) (June 20, 2012) (steps).  It doesn’t take much to show a work-related risk as in Pope v Gateway to the West Harley Davidson, 2012 MO App. Lexis 1335 (Lexis Advance), 2012 MO App. Lexis 1335 (lexis.com) (Mo. App. 2012), in which carrying a motorcycle helmet down a few steps was a unique occupational risk even though the worker may have carried helmets and walked down steps before.  “We further agree that Pope's non-employment life includes the fact that he rides motorcycles, and that Pope wears the same boots and helmet while riding his motorcycle in his normal non-employment life. However, despite these similarities between Pope's work activities and his non-employment life, the record does not contain substantial and competent evidence to support a finding that Pope was equally exposed to the risk of walking down stairs while carrying a work-required helmet outside of work.”

Scholastic, unlike Dorris, doesn’t find much risks as a condition of employment duties because claimant wasn’t “really’ working at the time.  Most parking lot cases occur when someone is arriving or leaving from work.   In Hartman v DJSCMS/Suntrip Kia, 2014 MO WCLR Lexis 85 (Lexis Advance), 2014 MO WCLR Lexis 85 (lexis.com) (July 16, 2014) the claimant received benefits and was leaving work and had just been fired when he fell on the employer’s icy premises.  Scholastic analytically concludes that leaving work and encountering a generic hazard such as ice is enough to show a work-related task and hazard whether it is on property owned by the employer (Hartman) or property arguably controlled by the employer.   Gateway suggested that work duties exposed claimant to a hazard.  Scholastic flips that on its head and seems to suggest that exposure to a hazard at work of ice flows from de facto from a work duty.

Any employee who is not allowed on a property for “normal non-business”  reasons could never have equal exposure.   It cannot be reasonably argued that statutory reformers intended an absurd result for the “equal exposure” doctrine to apply only to employers who never exercise control or access to their property.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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