Analysis Under Employment, Neutral and Personal Risk Principles: Case Law

Dukich v IWCC 2017 IL App(2d) 160351WC; Opinion filed September 19, 2017.

In Dukich, claimant sustained injuries while working for Respondent, Fenton Community High School, when she fell on wet pavement at the employer’s premises while walking to her car on her way to lunch.

The Arbitrator found for claimant, primarily relying on First Cash Financial Services in reasoning that it was undisputed that the accident occurred in a wet area and that claimant was exposed to an increased risk because the wet concrete area where the fall occurred was an employer controlled designated pathway specifically for claimant to reach her employee designated parking spot.

The Respondent appealed and the Commission reversed the Arbitrator’s decision. Notably, the Commission rejected the Arbitrator’s reliance on the First Cash Financial Services case as the said case involved an employment related risk. The Commission found that the risk confronted in the instant case was not an employment risk because, at the time of the fall, claimant had left her office and the building. Further, claimant did not allege any defect in the cement’s surface or accumulation of snow or ice and she was not performing any work-related task that contributed to her risk of falling. Of significance, the Commission did not find the risk of falling on a wet pavement to be a neutral risk; rather, a personal risk.

Commissioner DeVriendt filed a dissent. In short, the Commissioner found it significant that the claimant had an employee designated parking space and had to walk past the area of entranceway to get to and from the school building on a regular basis. Commissioner also opined that the wet pavement was a hazardous condition and claimant had to use that hazardous parking lot to access her car which was placed in an employee assigned spot.

The circuit court affirmed the Commission’s decision. Notably, the circuit court found that the wet pavement was not a “hazardous condition” and that there was no defect in the sidewalk where the claimant fell. However, disagreed with the Commission in that there was no evidence to indicate that the fall was due to a personal risk; rather, attributed the fall to a neutral risk. Under neutral risk analysis, compensability depends upon whether the claimant was exposed to a risk greater than the general public. The circuit court found no such increased risk as the area where the claimant fell was accessible to the general public.

The Appellate Court agreed with the Commission that the accident was not compensable. However, noted that the proper analysis was under the neutral risk principles. Although the employer provided claimant a designated parking space, there was no evidence that the employer exercised any control over the particular route the claimant took to her car or required the claimant to traverse the handicap ramp where she was injured. Further, there was no evidence to suggest that the claimant’s job duties somehow contributed to her fall or enhanced the risk of slipping on wet pavement. Of significance, the Appellate court agreed with the Commission in that the wet pavement was not a “hazardous” condition as there was no evidence to suggest that the pavement had defects, holes, depressions, uneven surfaces, or puddles on the pavement’s surface. For those reasons, the Appellate Court affirmed the Circuit court who affirmed the Commission.

Take away from the case:

• Note the different analysis under employment, neutral and personal risk principles.

• The Arbitrator classified the risk on wet pavement as a neutral risk, Commission found the risk to be personal, Circuit court found the risk to be neutral as did the Appellate court.

• Court has now defined the term “hazardous” condition. While the Arbitrator found wet pavement to be a “hazardous” condition, the Circuit court and the Appellate court disagreed and found the wet pavement was not a “hazardous” condition as there was no evidence of any defects, etc.

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