Ryan v. Boehm, Brown, Rigdon, Seacrest & Fischer

• Decision Date: 16 April 1996
• Docket Number: No. 95-2410,95-2410
• Citation: 673 So.2d 494
• Parties: 21 Fla. L. Weekly D948 Lois Anne RYAN, Appellant, v. BOEHM, BROWN, RIGDON, SEACREST & FISCHER and Florida Retail Federation, Appellees.
• Court: Florida District Court of Appeals

Page 494

673 So.2d 494

21 Fla. L. Weekly D948

Lois Anne RYAN, Appellant, v. BOEHM, BROWN, RIGDON, SEACREST & FISCHER and Florida Retail Federation, Appellees.

No. 95-2410.

District Court of Appeal of Florida,

First District.

April 16, 1996.

Rehearing Denied June 3, 1996.

An appeal from an order of Judge of Compensation Claims Jonathan D. Ohlman.

Barbara L. Richard, Ocala, for appellant.

Robert A. Keeter, Gainesville, for appellees.

KAHN, Judge.

The issue in this workers' compensation case is whether injuries suffered by appellant, Lois Anne Ryan, arose out of her employment with appellee, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A. (Boehm, Brown). We find that the judge of compensation claims (JCC) erroneously focused upon the question of special hazard in his analysis. We reverse because determination of the issue in this case depends upon an established exception to the going and coming rule, and does not involve a special hazard analysis.

Before her accident on September 15, 1993, claimant worked as a receptionist for the law firm of Boehm, Brown in Ocala for five years. The law firm leased a parking lot in order to provide parking spaces to employees, including claimant. The parking lot is not contiguous to the employer's office building. As part of claimant's morning routine, she walked from her parking space to the corner of N.E. 1st Street and N.E. 1st Avenue, where she crossed N.E. 1st Street. She then walked along N.E. 1st Avenue to a point where she crossed over N.E. 1st Avenue and proceeded to her office building at the corner of N.E. 1st Avenue and Silver Springs Boulevard. Her route occasionally varied, depending on traffic. On the day of the accident, claimant arrived at the parking lot at her normal time. She then crossed N.E. 1st Street and entered a restaurant, where she purchased a biscuit. After leaving the restaurant, claimant resumed her walk along N.E. 1st Avenue and crossed that street, although not at an intersection. She encountered the curb on the opposite side of N.E. 1st Avenue at approximately the same location she normally would have on any other day. As she attempted to step up on the curb, however, she tripped and fell on the sidewalk, causing injury to her teeth and left hand. The compensability question in this case turns on whether claimant was in the course of her employment with Boehm, Brown at the time she fell.

Appellee Boehm, Brown contended that because the injury occurred on property not subject to the employer's control and involved no special hazard sufficient to cause the accident, the claimant's course of employment argument must be rejected. The JCC adopted appellee's position on course of employment. The JCC focused upon whether any defective or hazardous conditions existed along the route taken by claimant and made the following findings:

In this case, the sole and proximate cause of the claimant's injury appears to have been her failure to lift her foot high enough to cross a curb of apparently normal height after crossing the street on her way to work. The claimant subjected herself to the fall, and there was no proof that the curb was defective or in disrepair. Without that evidence, I find there is no proof that a normal curb on a public street constitutes a hazard, special or otherwise....

There was no proof submitted that there was any special hazard which caused or contributed to the complained of injury and/or accident.... I find the claimant's fall was attributable to personal acts and was unrelated to her employment.... I specifically note that the result herein is factually based only in that I have made a finding that there was no flaw or defect in the street, curb or sidewalk in the area of the fall....

I find that there was no accident/injury arising out of the claimant's employment, no special hazard existing to bring the accident/injury within the ambit of employer responsibility, and that there was no danger to which the claimant was subjected to peculiarly or by reason of her connection with her employment.

As a general rule, "the hazards encountered by an employee while he is going to, or returning from, his regular place of work are not ordinarily incidental to the employment, and injuries resulting from such hazards do not arise out of and in the course of the employment." Doctor's Business Service, Inc. v. Clark, 498 So.2d 659, 662 (Fla. 1st DCA 1986) (en banc); Securex, Inc. v. Couto, 627 So.2d 595 (Fla. 1st DCA 1993). This principle is generally characterized as a "going and coming" rule. As the JCC recognized, the special hazard exception to the going and coming rule brings an off-premises injury within the course of employment on proof that a special hazard on the normal route to or from employment caused the injury. Kash-N-Karry v. Johnson, 617 So.2d 791 (Fla. 1st DCA 1993), rev. denied 629 So.2d 133 (Fla.1993).

Competent substantial evidence supports the JCC's finding of no special hazard. Appellant argues, however, that the special hazard exception does not control this case. Instead, she contends that because her injury occurred while traversing the distance between two distinct portions of the employer's premises, and in a manner reasonably required by her employment, she was within the course of her...