Kim Browning v. State of Delaware, (C.A. No. K20A-03-001 VLM - Decided May 3, 2021)

Superior Court affirms Board’s decision finding that the grass area where claimant fell into a sinkhole on her way into work was not the employer’s premises.

The employer in this case was represented by my colleague, Keri Morris-Johnston, Esquire, who has successfully litigated this matter before the Board and now the Superior Court. The claimant worked as a judicial assistant (formerly known as a bailiff) in the Superior Court in Kent County. Her job duties included protecting the judges and visitors to the courthouse and controlling the assigned courtroom. The claimant did not have a designated parking area, unlike some employees, and she normally parked on Federal Street as close to the courthouse as possible, although she was not required to do so. On January 24, 2018, the claimant parked her car at 7:50 a.m., which was 10 minutes prior to her start time. Upon exiting her car, she walked behind it and stepped onto the grass where she felt the ground move. She picked up her back foot and then the ground opened beneath her, causing her to fall in the sinkhole. The claimant was taken by ambulance to the hospital for serious injuries. Importantly, the claimant had not yet crossed the threshold of the courthouse when the fall occurred and the grass area where the sinkhole opened belongs to the state of Delaware, but it was not the employer’s property.

A Petition to Determine Compensation Due was filed on behalf of the claimant, and an evidentiary hearing took place before the Board where the sole issue was whether the claimant was acting in the course and scope of her employment. The claimant argued that the location of the fall was on the employer’s premises, thereby making her eligible for benefits, but the employer argued to the contrary, that under the “going and coming” rule, the claimant was precluded from receiving workers’ compensation benefits. The Board denied the claimant’s petition and determined she was not acting in the course and scope of her employment when she fell because she was not on the employer’s premises. In so ruling, the Board took into account that the employer exercised no authority over Federal Street, that the street parking spaces were open to all persons and the employer had no responsibility for maintaining the parking spaces on Federal Street.

On Appeal, the claimant asserted the Board had committed a legal error. The court referenced the “going and coming” rule, which precludes an employee from receiving workers’ compensation for injuries sustained while traveling to and from the place of employment. Since the claimant’s work hours were from 8:00 a.m. to 4:30 p.m. and the fall occurred at 7:50 a.m. while the claimant was on her way to work, the court reasoned that the “going and coming” rule initially applied to bar any recovery. However, the claimant argued that under the “control by use” theory, the Board should have determined that she fell on the employer’s premises. The “control by use” theory provides that parking lots not owned by the employer may still be part of the employer’s premises when exclusively used by employees of the employer. The claimant cited two prior cases, but in analyzing them, the court found that both were distinguishable as there had been a finding of control of the parking area by the employer. The court reasoned that the Board completed a proper legal analysis of the “going and coming” rule, as well as the premises exception, and found there was insufficient evidence to support a finding that the employer exercised the requisite control over Federal Street where the claimant fell. The court noted that it was sympathetic to the claimant given her significant injuries and commented it was unfortunate that she found herself in both “a literal and legal sinkhole.” Nevertheless, the court denied the appeal based on the existence of substantial evidence to support the Board’s decision that the claimant was not in the course and scope of her employment when injured.



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