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The Fall of the...Usher
by Ron Davis
Where does a shopping center’s property start and a tenant’s property end? Much was at stake in a judge’s recent review of facts when answering that question.
The question occurred in a recent case involving a Pennsylvania shopping center. An employee of a tenant of the shopping center suffered injuries when she fell in the center’s parking lot after she left work.
The employee is a ticket taker and usher for a movie-theater tenant of the shopping center. While she was walking to her car on the day of the accident, she tripped and fell. A subsequent visit to an orthopedic surgeon revealed that she had suffered a severe head fracture as a result of the fall. She underwent surgery followed by physical therapy.
Six weeks after her fall, however, she returned to work. But she then filed a claim seeking total disability benefits for those six weeks’ absence. She also asked for payment of her medical bills and legal fees.
Her employer opposed her claim, arguing that once she left work, any injuries she sustained were not employee-related. That argument is based on the fact that the movie theater has no area specifically designated for employee parking. Shoppers can also park anywhere in the shopping center’s parking lot.
At the parking lot spot where the injured woman tripped and fell, the concrete sidewalk and the parking-lot asphalt meet, creating an upward-extending “lip.” The weather that afternoon was clear, however, and there were no wet areas, snow or ice on the ground. Estimates show that the spot where she fell was 13 to 15 feet from the theater exit and less than 10 feet from her car.
In testimony at the worker’s compensation hearing, an executive officer of the theater explained that the theater owns the building that houses the theater. But, she added, the shopping center owns the sidewalk and parking lot.
A worker’s compensation judge ruled in favor of the injured theater employee, explaining, “Although this injury did not occur in the furtherance of the business or affairs of the employer, she satisfied the three conditions necessary for her injury to be considered ‘in the course of her employment.’ Her injury occurred on her [employer’s] ‘premises,’ as the term encompasses more than just the property owned by her employer—it also encompasses the sidewalk and parking lot; her presence was required by the nature of her employment as she was required to traverse the sidewalk and parking lot to reach her car; and her injury was caused by a condition of the premises, notably the lip between the sidewalk and parking lot, on which she tripped.” (Thompson v. Workers’ Compensation Appeal Board (Cinema Center), 2009 WL 3029651 [Pa.Cmwlth.])
Decision: September 2009
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