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Lots of Work
by Ron Davis

A woman who was assaulted in a Nebraska shopping center parking lot as she left work at a tenant’s place of business will finally receive the worker’s compensation that has been denied her.

The woman was a waitress and bartender at the time of the assault, and her assailant was a disgruntled customer of the Omaha bar where she worked. On the evening of the attack, while performing her duties as a waitress, she refused to serve a drink to the man later accused as her assailant. In fact, at one point in the evening she actually took a drink away from him.

She said the man later approached her and asked if she would be interested in smoking marijuana with him after the bar closed. She said she replied that she wasn’t interested.

She said she later closed the bar, cleaned the premises, locked up, and left at about 2:15 a.m. As she went to her car and unlocked the door, she said someone struck her with “like a tire iron on the back of the head.”

She sustained an open skull fracture and other severe injuries. She said for more than a week, she had no memory of any events of the assault and for many months afterward suffered from significant cognitive impairment, including difficulty with speech and thought formation. (Police later arrested her assailant and charged him with the crime.)

The woman later filed for worker’s compensation, seeking disability benefits and payments for medical expenses. A worker’s compensation board rejected her request, however, as did a worker’s compensation court. The board and court reasoned that at the time of the assault, she “was not in the course of her employment.” In other words, the court ruled, she was not at her place of employment nor in the parking lot of her employer when assaulted.

On appeal, the woman argued that the shopping center parking lot was indeed part of her place of employment–even if used by all other employees of tenants there.

The Supreme Court of Nebraska agreed with her, explaining, “As the assault victim correctly notes, the general rule is that if the owner of the building in which the employee works provides a parking lot for the convenience of all tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the parking lot rule is applicable. That rule holds that it would be impractical and illogical to require actual ownership or control of a parking lot by a tenant in a shopping center consisting of multiple independent businesses, each of which would have to be an owner in common with all the other tenants in order to share a nebulous control over its geographical confines.” (Zoucha v. Touch of Class Lounge, 690 N.W.2d 610 [Neb. 2005])

Decision: January 2005
Published: February 2005



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