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Fair Game
by Ron Davis

An employee of a Virginia shopping center has failed in her bid to prove that the center's owners were liable for an injury she suffered after leaving work.

The shopping center, located in the Roanoke area, is owned by a husband and wife, who also operate a restaurant there and lease to several other tenants. And the employee's injury occurred as she was crossing a busy street to reach a lot where her car was parked.

That lot is used by employees who work at the shopping center because the center's owner prohibits employee parking to assure that patrons have adequate spaces. There is also no on-street parking nearby.

Moreover, in the immediate vicinity of the spot where she was crossing, there are no crosswalks for pedestrians nor stoplights to halt vehicular traffic. The street itself has four lanes and is heavily traveled during most of the day.

But the shopping center owners neither own, lease nor maintain the off-premises lot where the employee was parked. And once she left the restaurant, she had no further employment duties or tasks to perform for her employers. The shopping center owners did not pay her for the time after she left the store and did not pay for mileage or provide an automobile for her use. Her duties never at any time involved driving for her employers.

Under Virginia law, an injured employee seeking reparations must prove that he or she suffered the injury "arising out of and in the course of his or her employment." And he or she must show that "the conditions of the workplace cause the injury."

A Virginia appellate court, in dismissing the lawsuit, explained, "As a general rule, an employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment. The parking lot in this case was neither owned nor maintained by the employer, and the employee was not required to park there. While employees could not park on the employer's premises, they could park any other place they chose.... In other words, the parking lot's use was not an incident of employment.... Further, even assuming that the employee established the requisite authority and control, the accident itself did not occur at the lot across the street, but on a public road, that was clearly not within the employer's control." (Stone v. Keister's Market & Grill, 538 S.E.2d 364 [Va.App. 2000])

Decision: December 2000

Published: March 2001



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