IS THERE A PARKING LOT EXCEPTION IN WASHINGTON ANYMORE?
By Aurora B. Levinson, Attorney at Law
“I have a worker who was injured in the parking lot. Should I allow this claim?” This is probably the question I get asked the most from claims adjustors. The answer, in most cases, is “Yes, you should allow the claim.” This is interesting since Washington’s workers’ compensation rules say that injuries that take place in a parking lot are excluded from coverage. The problem is that case law has chipped away at this exclusion so much that barely anything is left. In this article I will review these exclusions to the “parking lot exception” and where the exception continues to apply.
In Washington, a worker who is injured in the course of employment can file a worker’s compensation claim for industrial injury. However, the statute states that “acting in the course of employment,” which otherwise includes coming and going from work on the jobsite, excludes coming and going from the employer’s parking area.[1] But there are many circumstances where workers are injured in a parking lot and still found eligible for benefits. This is because the courts have a mandate to “broadly construe worker’s compensation law in favor of coverage and construe exceptions narrowly.”[2]
The first question to ask in these cases is whether the place of injury qualifies as a parking lot. This might seem like it would have an easy answer, but there are multiple, sometimes contradictory exclusions. For example, if a parking lot is also used for deliveries or storage, a worker will be covered if his injury occurs in the portion of the lot not used for parking.[3] The same is true for areas that are used as loading zones.[4] Likewise, stairwells are not considered to be a part of the parking lot because the “stairwell was a means of getting to and leaving the parking area rather than a place where vehicles parked.”[5] Pedestrian areas adjacent to the parking lot might also be excluded if they are inside the job site[6]—however this is a bit more murky, as discussed further below.
Once you’ve identified whether the place of injury is a parking lot, you should next determine what the worker was doing there. The parking lot exception will not apply when the worker is acting in furtherance of their employer’s business. This includes workers who are carrying work materials or “tools of their trade” from their car into their workplace[7]; those retrieving or delivering messages concerning employees; those who are sent to perform work at the parking lot,[8] or those who are required to use a work vehicle for the purpose of their employment.[9] The exception will also not apply to workers who are in the parking lot under the personal comfort doctrine. For example, a worker who is injured while smoking in the parking lot was found to be covered under this doctrine.[10]
But the parking lot exception is not dead-dead, it’s only mostly dead. Washington courts have found that areas used as parking lots, even if not “officially” designated as such, still fell under the exception.[11] In addition, the traffic lanes in the parking lot are still considered a part of the parking lot, despite the fact that they are not where the cars actually park.[12] The same is true for crosswalks inside the parking lot.[13] And courts have also found that the “avenue of traffic” directly leading into a parking lot may be part of the parking lot itself.[14] And last, workers who leave to job site during lunch break and then return and suffer an injury in the parking lot will not be covered under the personal comfort doctrine.[15] This is because lunch breaks are not the same as personal comfort breaks. A worker is generally not considered to be in the course of employment when on a lunch break.[16]
The parking lot exception has been almost eroded out of existence. But there are still some situations where it applies. These situations are very fact-specific, so you will want to gather as much information as possible before proceeding with claim allowance or denial. Obtaining information, such as pictures of the parking lot; a diagram of the lot indicating parking and loading areas; and documentation of the time of the accident; clock-in and out times; what the worker was doing in the parking lot and whether they were there at the employer’s request; whether they were arriving, departing, on lunch break, or on personal comfort break; and if there is surveillance footage or a witness who saw the injury (and there may be more based on the facts of your case). Then, it is always worthwhile to discuss these claims with an attorney who will be able to review the inconceivable case law and provide guidance on it.
As always, please do not hesitate to contact the attorneys at Reinisch Wilson P.C. with any questions or concerns related to this information.
Please Click Here for More Information on Washington’s Parking Lot Exception
[1] RCW 51.08.013 (1)
[2] University of Washington v. Marengo, 122 Wn.App 798 (2004).
[3] In re Harold Redman, BIIA Dec., 43,902 (1975).
[4] Madera v. JR Simplot Co., 15 P. 3d 649, 652-53 (2001).
[5] University of Washington v. Marengo, 122 Wn.App 798 (2004).
[6] Boeing Co. v. Rooney, 102 Wn.App. 414, 10 P3d 423 (2000).
[7] In re Julie Trusley, BIIA Dec., 93 3124 (1994).
[8] In re Joseph Buchheit, BIIA Dec., 88 2674 (1989).
[9] Puget Sound Energy v. Adamo, 113 Wn. App. 166, 52 P.3d 560 (2002).
[10] In re Janise Dial, BIIA Dec., 01 17217 (2003).
[11] Rieman v. Washington State Dep’t of Lab. & Indus., 13 Wash. App. 2d 1018 (2020).
[12] Dillon v. Department of Labor & Indus., 186 Wash.App. 1 (2014).
[13] Ottesen v. Food services of America, Inc., 131 Wn. App. 310, 126 P.3d 832 (2006).
[14] Olson v. Stern, 65 Wash. 2d 871, 874, 400 P.2d 305, 307 (1965).
[15] Bergsma v. Department of Labor & Indus., 33 Wn. App. 609 (1983).
[16] Tipsword v. Department of Labor & Indus., 52 Wn.2d 79 (1958).