LITIGATION AND LEGISLATION
Ingress and egress
Laurance Jerrold
Woodbury, NY
D
uring work, an employee is injured in your office;
are you responsible? An employee is injured on
her commute to or from the office; are you
responsible? An employee, leaving work, is injured in
the parking lot used by the office personnel; are you
responsible? The answers are yes, no, and maybe. Smith
v Camarena, 835 SE 2d (Ga. Ct. App., 2019) provides us
with some insight.
Upon leaving work at a grocery store, the employee
clocked out and went to her car that was located in
the parking lot of the strip mall where the store was
located. She stopped to speak with another coworker
who was sitting in a nearby car with her husband. At
that point, masked gunmen attempted to rob all 3 peo-
ple. Just as this was happening, the store manager drove
by and seeing what was going on, attempted to inter-
cede by drawing his own weapon. When the shootout
at the OK Corral was over, the employee had sustained
a fatal gunshot wound.
Her estate sued the owners of the strip mall and the
owner of the grocery store for negligence, claiming a
lack of security in the parking lot. The owner of the gro-
cery store raised the defense that the employee’s injuries
occurred during her employment; therefore any financial
compensation she was owed was limited by law under
the relevant Workman’s Compensation Act, and he asked
for a directed verdict on this point of law. The trial court
agreed, finding that the employee was at work at the
time, and granted a directed verdict in favor of the gro-
cery store owner. The employee’s estate appealed,
arguing that summary judgment was inappropriate as
certain facts were in dispute. The factual issue to be
determined was whether or not the employee’s death
occurred while she was at work. If it was determined
that the employee was working at the time of the shoot-
ing, then any injury sustained would be compensable
under the Act. But if the employee was found to be
not working at the time, and the case were turned over
for trial, then a finding by the jury that the grocery store
Associate Editor for Litigation and Legislation, Private practice, Woodbury, NY.
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746
owner was negligent in maintaining security for the lot
might result in a much larger award.
The court noted that “.an injury is compensable
under the act only if it arises out of and in the course
of the employment.” Therefore, because the court had
to look at these 2 fact-based requisites, a summary judg-
ment in the grocery store owner’s favor was inappro-
priate. Both sides admitted to the “arising out of”
requirement; so the only facts to be decided involved
the “in the course of” requirement. The facts revealed
that the grocery owner did not own, maintain, or control
the parking lot. His business was one of many in the strip
mall, all of which used the common parking lot open to
the public.
The court defined the “in the course of” requirement
as referring to the time, the place, and the circumstances
under which the event took place. Further refining the
legally accepted underpinnings of this requirement,
the court stated that the injury must occur “.within
the period of employment at a place where the employee
reasonably may be in the performance of his duties
while he is fulfilling his duties or engaged in something
incidental thereto.” Going further, the court noted that
the limitation relating to this requirement is that an
injury is not compensable if it occurs “.during a time
when the employee is off duty and is free to do as he
or she pleases and when the employee is not performing
any job duties. .”
Neither party disputed that the employee was not
working when the shooting occurred; however, the
owner of the grocery store argued that the employee’s
injury was covered under the Act because of the
“ingress/egress” exception. The court, citing various
other cases, noted that this rule of law provides that:
.the period of employment generally includes a
reasonable time for ingress to and egress from the
place of work, while on the employer’s premises.
For purposes of this rule, the employer’s premises
means “real property owned, maintained, or
controlled by the employer.” So “when an employee
is injured in, or going to and from, a parking lot
which is owned or maintained by the employer, the
incident is compensable under Workers’ Compensa-
tion since the injury arose during the employee’s
ingress or egress from employment.” But it “does
Litigation and legislation
not extend so far as to allow coverage ... for an injury
which occurred in a public parking lot that was
neither owned, controlled, nor maintained by the
employer.” (Cits. Omit.)
The summary judgment in favor of the grocery store
owner was reversed, and a trial was ordered.
COMMENTARY
So what does this mean for us? Let us say you own or
lease a freestanding office building with its own parking
lot. If you own, control, or are responsible for maintain-
ing the parking lot, which would be the case, then the
ingress/egress rule would apply to you. What that means
is that employees are granted a reasonable amount of
time to get out of or into their cars when entering or
leaving the office; and they are deemed to be “on
the clock” while doing so. However, before pulling into
the lot or once they leave the lot and hit the street, the
employer is off the hook for any injuries that may befall
American Journal of Orthodontics and Dentofacial Orthopedics
747
them unless they happen to be engaged in a business
related errand.
However, this issue becomes more muddled if it is a public
lot that serves a number of business establishments. In that
instance, as a general rule, the business owner, that is, you,
would not be responsible, but that does not prevent
you from undertaking the potential for liability exposure if
you choose to. How? Suppose you make an arrangement
with the owner of the strip mall to have a section of the lot
blocked off and dedicated to your business. In this scenario,
a section of the parking lot is restricted by signage stating that
parking is reserved for the patients and staff of Dr Straightens
M. Goode. You now certainly control, and possibly are
responsible to maintain, to whatever degree you and the
building owner have agreed to, that section of the parking
lot. In other words, you have increased your sphere of oper-
ations to your potential detriment.
Maybe you want that, maybe you do not. But hey,
you now have dedicated parking. Hope it is worth the
undertaking.
May 2022  Vol 161  Issue 5