Kentucky slip and fall case by store clerk fails in court

by Mandy Hicks

Workers’ compensation was designed as a compromise. An injured worker does not have to prove that his or her employer was negligent (as is required in most personal injury cases), but the worker’s monetary recovery is typically less than it would be in a negligence case. Whether or not this is a fair trade-off is a controversial subject.

The good news for an injured worker is that he or she can receive medical care and payment of temporary and, if applicable, permanent disability benefits, even if he or she cannot show that the employer did anything to cause the injury complained of. The bad news is that, even if the employer was at fault, the payout to the worker remains the same, with no compensation for pain and suffering or loss of consortium to the injured person’s spouse.

Sometimes, the parties disagree as to whether an injury was sustained during the course and scope of employment. For instance, an employee may be away from the business premises at the time of an accident (such as a car crash) but still arguably engaged in work for the employer.

Facts of the Case

In the recent case of McMican v. Martin & Bayley, Inc., the plaintiffs were a convenience store clerk and her husband. They filed a negligence lawsuit against the store owner, seeking damages for injuries sustained when the clerk tripped on a rug while leaving the store. Prior to falling, the clerk had completed her work shift, clocked out, and made a purchase in the store.

The complaint filed by the clerk and her husband alleged that the store owners were negligent in failing to maintain the premises in a reasonably safe condition. The store owners sought dismissal of the negligence lawsuit, averring that the clerk’s claim was barred by the exclusive remedy provisions of the Kentucky Workers’ Compensation Act. The trial judge of the Webster County Circuit Court agreed and dismissed the case.

On Review by the Kentucky Court of Appeals

The appellate court affirmed the trial court’s dismissal of the case filed by the clerk and her husband, who sought damages for loss of consortium. The clerk argued that her case fell squarely within the “coming and going” rule, under which an employee who is either coming from, or going to, work does not qualify for workers’ compensation. According to the clerk, she had clocked out and was on a personal mission (shopping in the store), thus effectively becoming an ordinary customer rather than an employee of the store.

The court, however, was not convinced that the clerk’s situation qualified her for the coming and going rule. Instead, it held that her actions of making a purchase and speaking to a customer on the way out of the store following her work shift did not constitute a substantial deviation from her work-related duties. Thus, workers’ compensation was the clerk’s exclusive remedy, and the dismissal of the negligence action filed by her husband and her was proper.

For Legal Advice Concerning Your Kentucky or Tennessee Accident

If you or a loved one has been hurt and needs legal advice concerning a possible lawsuit against the responsible party, call English, Lucas, Priest & Owsley at (270) 781-6500 and ask for an appointment with one of our experienced Kentucky personal injury and wrongful death attorneys. We also represent clients in Tennessee, including in Nashville, Springfield, and Clarksville.

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