NY Retail Employee Loses Her "Gray Area" Injury Claim

Again illustrating the discretionary power of a board or commission to make factual findings, a New York appellate court affirmed a decision by the state’s Workers’ Compensation Board denying benefits to a retail employee who sustained injuries when she slipped on wet pavement while entering the shopping mall containing her employer’s premises [Matter of Djukic v. Hanna Andersson, LLC, 2020 N.Y. App. LEXIS 3788 (3d Dept. July 2, 2020)]. Acknowledging New York’s special “gray area” doctrine, where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk will not ipso facto negate the right to compensation, the appellate court found that the risk posed by the wet condition was nevertheless unrelated to claimant’s employment and merely constituted a danger that existed to any passerby utilizing that entrance.

Background

Claimant, a sales lead for the employer, slipped and fell on her way to work and sustained various injuries. The employer’s premises were located on the third floor of a shopping mall, and claimant fell shortly after entering the mall through a valet entrance located on the ground level of the structure. At the time of her fall, claimant had not yet reached the nearest elevator that would allow her to access the floor where the employer’s retail premises was situated. Following a hearing, a WCLJ established the claim and made various awards. Upon administrative review, the Workers’ Compensation Board reversed and disallowed the claim, finding that claimant’s injury did not arise out of and in the course of her employment. Claimant appealed.

Appellate Court Opinion

While the Court acknowledged New York’s “gray area” doctrine, it added that the resulting injuries will be compensable only if there was (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned, permitting the conclusion that the accident happened as an incident and risk of employment. Here, the employer’s premises was on the third floor of the mall. There were multiple entrances to the mall, none of which were controlled by the employer. The employer did not direct its employees to utilize any specific entrance. The claimant had not reached the elevator area that would take her to the third floor. The Court concluded that there was no indication the employer benefitted from the use of the valet entrance to the mall any more than any other entrance. The Court concluded that the risk posed by the wet condition near the valet entrance was unrelated to the employment; it was a danger that existed for anyone passing by. Substantial evidence, therefore, supported the Board’s finding that the injuries did not arise out of and in the course of claimant’s employment.