Recent Indiana Slip & Fall Claim Expands the Definition of “Neutral Risk”

In a recent Indiana Court of Appeals case, McBride v. Midwest Estate Buyers, LLC, the Court delved into whether an employee’s slip and fall resulted in an injury that “arose out of” her employment.  In this case, the claimant was employed at a jewelry store and liked to wear nice, stylish clothing to work.  On the date of the incident, the claimant was wearing boots with zippers on the inside of the leg.  As she stood to greet a customer, the zippers hooked together causing her to fall and break her leg.

Compensable WC claim?

In Indiana, an injury arises out of one’s employment if a reasonably prudent person would consider the injury to have been born out of a risk incidental to the employment.  Indiana courts place risks incidental to employment into three categories: (1) employment risks, (2) personal risks, and, (3) risks neither distinctly employment nor distinctly personal in nature (i.e., neutral risks).

The compensability determination is different depending on the category of the risk.  Naturally, injuries resulting from employment risks are compensable.  On the other hand, injuries resulting from risks distinctly personal in nature are not compensable.  What about risks that lie somewhere in between – risks containing both elements of employment and personal risks?  These risks falling within the third category, neutral risks, are compensable in Indiana.

In the McBride case, the employer denied the claim because the claimant’s fall and injuries resulted from a personal risk, which is not compensable.  At trial, the Single Member and the Board agreed with the employer.  The Board relied on the fact that the claimant fell because of her boots.  The same boots that she selected and purchased on her own, that she chose to wear on the date of the incident, and that she was not required to wear.  The Court of Appeals reversed the Board’s decision.

Surprisingly, the Court of Appeals acknowledged that the claimant’s injuries were the result of her personal choice of attire.  Based on this acknowledgement, one would have expected the Court of Appeals to categorize this as a personal risk.  The Court then took its analysis a step further.  The Court of Appeals also determined that the claimant dressed up to look stylish at work when she interacted with customers.  Accordingly, the Court concluded that the claimant’s injuries stemmed from a risk that was “neither distinctly employment related nor distinctly personal in character,” a neutral risk.  Therefore, the claimant’s injuries were deemed compensable.

It should be noted that the McBride case does not change the standard by which categories of risks are analyzed in Indiana.  While the risk analysis remains the same, this decision seems to broaden the definition of what constitutes a neutral risk.  In this case, the Court of Appeals seemed to go to great lengths to find that there was some element of risk beyond the obvious personal risk.  The unfortunate result for employers is that more claims involving slip and fall injuries may be deemed compensable if the Board follows the precedent established by the Court of Appeals in this case.

Thanks to attorney Dane Kurth for this important case law update.  Dane covers both Illinois and Indiana for the firm.

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