Stepping over the Greater Risk Line

The Appellate Court recently decided that the petitioner’s act of stepping off a concrete island onto the employer’s parking lot, while carrying a sack, did not establish a risk greater than that of the general public in McLean County Sch. Dist., Unit 5 v. Illinois Workers’ Comp. Comm’n, 2016 IL App (4th) 150248WC-U.

The petitioner, a bus driver, was walking through a parking lot to retrieve a logbook from her bus before clocking out at the end of the day.  As she stepped down from a slightly raised concrete island in the parking lot, onto the normal pavement, she fell and suffered head injuries.  The petitioner was carrying a sack with personal food and drink, was not in any hurry, and testified that she had not lost her balance.  The evidence showed that there were no defects in the concrete island or the parking lot itself.

The Arbitrator, Commission, and Circuit Court had all found this to be a compensable accident, and in support of a finding that the petitioner had been exposed to a risk of harm greater than that to which the general public is exposed, cited four facts:

“(1) there may have been some ice on the edge of the concrete island that caused claimant to fall; (2) the accident occurred in an area not open to the general public, (3) claimant told emergency-room personnel that she “turned around quickly,” and (4) claimant was carrying a sack with food used for nourishment while she was driving the bus.”

The Fourth District Appellate Court disagreed, found that the prior decisions had been contrary to the manifest weight of the evidence, and addressed all four supporting facts.  The Appellate Court clarified that the reference to ice being involved in the fall was in regard to a different fall and workers’ compensation accident that the petitioner had previously suffered, as established by a closer examination of the evidence. The Appellate court then found that whether the parking lot was off limits for the general public was irrelevant to an analysis of whether the risk faced by the petitioner was greater than that faced by the general public.

The Appellate Court also found that the ER records indicating that the petitioner had “turned around quickly” had been taken out of context, and that this finding was refuted by the petitioner’s own testimony that she was not in a hurry.  The petitioner’s act of holding a sack was also found to be a red herring by the Appellate Court, as there was no evidence that holding the sack had caused the petitioner to lose her balance or to fall.   Finally, the Appellate Court stressed the importance of the fact that there were no defects in the concrete island or in the parking lot pavement.

Please note that this case is both “unpublished” and was issued as a Supreme Court Rule 23 decision, meaning that it cannot be cited as precedent for future cases.  However, this decision does help to clarify where the line is between situations where employees are or are not exposed to a risk greater than the risks faced by the general public.  We here at I&F will be sure to keep you up to date on any future case law that indicates where the threshold is for whether an employee was exposed to a risk greater than the general public!

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Thanks to attorney Michael Bantz for this case law update.

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