Deborah Evans v. Holland & Knight And Sentry Insurance

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

DEBORAH EVANS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D15-4080

HOLLAND & KNIGHT AND
SENTRY INSURANCE,

Appellees.

_____________________________/

Opinion filed June 24, 2016.

An appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.

Date of Accident: February 3, 2015.

Bill McCabe, Longwood, and John H. Thompson, IV, St. Petersburg, for Appellant.

William H. Rogner, Winter Park, for Appellees.

PER CURIAM.

In this workers’ compensation case, Claimant argues that her February 3,

2015, accident was compensable upon application of either of two exceptions to the

going and coming rule. Subsection 440.092(2), Florida Statutes (2014), provides

that “[a]n injury suffered while going to or coming from work is not an injury arising
out of and in the course of employment. . . .” Case law recognizes at least two

exceptions to the going and coming rule, one of which is the premises exception. As

this Court has stated:

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.

Security Bureau, Inc. v. Alvarez, 654 So. 2d 1024, 1025 (Fla. 1st DCA 1995).

The other exception to the going and coming rule is the special hazards

exception. In discussing that exception this Court has stated:

If an accident is deemed to have occurred off-premises, an employee’s
injury is compensable if it is caused by a special hazard on a normal
and customary route used by the employee as a means of entry to and
exit from the employee’s place of work. See Doctor’s Bus. Serv., Inc.
v. Clark, 498 So. 2d 659, 663 (Fla. 1st DCA 1986) (en banc).

Kramer v. Palm Beach Cty., 978 So. 2d 836, 838 (Fla. 1st DCA 2008).

Here, the Judge of Compensation Claims (JCC) concluded that neither

exception applied, and we agree. Because competent substantial evidence supports

the JCC’s finding that Claimant’s accident did not occur on the Employer’s

premises, we affirm. As the Court said in Alvarez, “We conclude that in absence of

any evidence of actual domination or control by the employer over the parking lot

and its use, this injury not compensable....” Id. at 1026.

Application of the special hazards exception presents a closer question. As

was explained in Toyota of Pensacola v. Maines, 558 So. 2d 1072, 1075 (Fla. 1st
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DCA 1990), there are two components to this analysis. “One is the presence of a

special hazard at a particular off-premises location, and the second is the close

association of the access route with the work premises.” Id. The JCC found that

Claimant’s fall as she stepped onto a 12” diameter metal plate that was below ground

level, located in the parking garage where Claimant parked using a parking pass

provided her by her Employer, was a hazard to those exiting the garage on foot.

These findings are not disputed.

We next examine the second component – whether there was a close

association between the access route and the work premises. After a review of the

evidence before her, the JCC concluded she could not find that the hazard in the

parking garage existed on an access route in close association with Claimant’s

workplace premises. See Naranja Rock Co. v. Dawal Farms, Inc., 74 So. 2d 282

(Fla. 1954); Petroske v. Worth Ave. Burger Place, 416 So. 2d 856 (Fla. 1st DCA

1982). Our review of the record finds competent support for the JCC’s conclusion.

Accordingly, because Claimant’s accident did not qualify under either

exception to the going and coming rule, that rule bars her recovery.

AFFIRMED.

MAKAR and BILBREY, JJ., CONCUR, and ROWE, J., CONCURS, WITH
OPINION.

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ROWE, J., concurring.

I concur with the majority’s decision to affirm the JCC’s denial of benefits in

this case. I write to further explain why the special hazard exception does not apply

to these facts.

As part of her employment, Claimant had the option of receiving a monthly

parking stipend or receiving an access pass to a public parking garage owned by the

City of Tampa. 1 The Employer did not own, lease, maintain, or operate the parking

garage or any space therein. Claimant chose the access pass, which merely granted

her access to parking on a first-come, first-served basis. The parking garage was

approximately three blocks or a ten-minute walk from the Employer’s offices. The

Employer never instructed its employees to take a specific route from the parking

garage to the offices. On February 3, 2015, Claimant parked on the ramp going into

the parking garage. As she was walking down the ramp, which was designed for use

by vehicles and not pedestrians, Claimant stepped on a uneven plate covered in

leaves and dirt that caused her to fall and fracture her right ankle. As explained in

the majority opinion, the JCC found that this accident did not fall under the special

hazard exception because the location of the hazard lacked a close association with

1
A representative of the Employer testified that Claimant had the option to receive
a monthly parking stipend, instead of the public garage access pass, which she could
have used to pay for parking at any location of her choice. The fact that Claimant
denies knowledge of this option is of no import to this opinion.
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access into or out of the Employer’s offices.

An injury to an employee that occurs at an employer’s office or an employer-

owned parking lot is compensable under the premises rule. See Ryan v. Boehm,

Brown, Rigdon, Seacrest & Fischer, 673 So. 2d 494 (Fla. 1st DCA 1996). An injury

that occurs to an employee as a result of a special hazard while the employee is

traveling between two employer premises is also compensable under the premises

rule. See Doctor’s Bus. Servs., Inc. v. Clark, 498 So. 2d 659 (Fla. 1st DCA

1986); Jenkins v. Wilson, 397 So. 2d 773 (Fla. 1st DCA 1981). Absent travel

between two employer premises, the special hazard exception applies only to a

special hazard contiguous to the employer’s premises when the special hazard must

be traversed to gain ingress and egress to the employer’s premises. See Petroske v.

Worth Ave. Burger Place, 416 So. 2d 856 (Fla. 1st DCA 1982); Naranja Rock Co.

v. Dawal Farms, 74 So. 2d 282 (Fla. 1954). The question before the JCC, and now

this Court, is whether Claimant’s injury is encompassed within this last category of

cases.

As applicable to these facts, the special hazard exception provides: “Where

there is a special hazard on a normal route used by an employee as a means of entry

to and exit from his place of work, the hazards of that route under appropriate

circumstances become the hazards of the employment.” Naranja Rock Co, 74 So.

2d at 286 (emphasis added). To establish that an accident occurred as a result of a

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special hazard, the employee must show: “(1) the presence of a special hazard at a

particular off-site location, and (2) close association of the access route to the work

premises.” Kramer v. Palm Beach Cty., 978 So. 2d 836, 838 (Fla. 1st DCA 2008).

In this case, the JCC correctly found that Claimant failed to establish the second

prong of this exception.

The special hazard exception applies only “when a court has satisfied itself

that there is a distinct ‘arising out of’ or causal connection between the conditions

under which claimant must approach and leave the premises and the occurrence of

the injury . . . .” Maas Bros. v. Peo, 498 So. 2d 657, 659 (Fla. 1st DCA 1986)

(emphasis added). Moreover, the applicability of the special hazard doctrine is

controlled by whether “the special hazard existed on an access route serving

primarily to provide entry and exit to the place of employment.” Petroske, 416 So.

2d at 858 (emphasis added). Therefore, the focus of the exception is whether there

is a special hazard closely associated with an entrance or exit to an employer’s

premises.

A review of the cases applying the special hazard exception demonstrates that

the close association requirement has not been extended beyond conditions located

in close proximity to the entry and exit of the place of employment. In Petroske, a

pothole in the driveway abutting the employer’s place of business and near the rear

entrance of the building was held to be a special hazard. Id. at 857. In Maas

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Brothers, the special hazard - a chalk line that caused an employee to trip and fall -

was located in a parking lot that was next to the employer’s business. 498 So. 2d at

658. In Toyota of Pensacola v. Maines, 558 So. 2d 1072, 1073 (Fla. 1st DCA 1990),

the employee was injured on a particularly dangerous stretch of highway in front of

his place of employment. Because this stretch of highway was “practically

contiguous” to his place of employment, we found that his accident was

compensable under the special hazard exception. Id. at 1076.

This same close association between the entry to and exit from the employer’s

premises was also present in our decision in Kramer. There, the employee was

injured when he tripped over a pile of debris that was in the path between a nearby

shopping center where he parked and his place of employment. 978 So. 2d at 838.

Although the shopping center was not the employee’s designated parking area, the

majority of the employees parked in that area, and this Court considered the path

from the shopping center to be the usual means of access to the employer’s

offices. Id. at 839.

Here, the hazard, an uneven plate, was located on a route that primarily

provided entry to and exit from the parking garage, not entry to and exit from

Claimant’s place of employment. Furthermore, the hazard was at a location that was

a ten-minute walk from the Employer’s offices. Because the special hazard was not

located on an access route serving primarily to provide entry and exit to the

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Employer’s offices, the JCC properly found that Claimant’s injury was not

compensable. Extending the special hazard exception to these facts is simply more

than the law will allow.