20 Shades of Gray: NY Court Construes “Risks of Street Travel” Rule

Where a New York office worker sustained injuries when she tripped and fell while walking on a public sidewalk approximately 20 feet from the door to the building that contained her office, after she had parked her car in an employer-owned parking lot one block away, her injuries did not arise out of and in the course of her employment, in spite of New York’s special “gray area” rule, held a state appellate court [Matter of Brennan v. New York St. Dept. of Health, 2018 N.Y. App. Div. LEXIS 1851 (3rd Dept. Mar. 22, 2018)]. The appellate court observed that there was no evidence the worker faced any sort of special hazard on the uneven sidewalk where she fell.

New York’s “Gray Area” Exception to Going and Coming Rule

New York, like virtually every American jurisdiction, provides no workers’ compensation benefits for injuries sustained away from the workplace and outside one’s normal working hours. Various states have carved out exceptions to this “going and coming rule,” of course [see Larson’s Workers’ Compensation Law, § 13.01, et seq.]. Where, as here, the accident and injury occurs near the claimant’s place of employment

there develops a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation [(Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 144, 359 N.E.2d 673, 391 N.Y.S.2d 78 (1976) [internal quotation marks and citation omitted]; (Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796, 797, 786 N.Y.S.2d 242 (2004)].

The Court observed that under the so-called “gray area” rule, injuries will be compensable only if there was;

  • A special hazard at the particular off-premises point, and
  • A close association of the access route with the premises, so far as going and coming are concerned.

The Court continued, noting that there was no evidence that there was any special hazard on the uneven sidewalk where claimant fell, which was open to and used by the public, as the danger existed to any passerby traveling along the street in that location. The Court concluded that substantial evidence supported the Board’s determination that claimant’s accident did not occur in the course of her employment.

Readers might contrast this case with, for example, Matter of Figueroa v. Perfect Shoulder Co., Inc., 68 A.D.3d 1586, 891 N.Y.S.2d 704 (3d Dept. 2009), in which permanent total disability benefits were awarded to a supervisor who was rendered a quadriplegic when his automobile was struck from behind by another vehicle. At the time of the accident, he was sitting in his vehicle, waiting to open his employer’s factory. His duties required that the factory be opened no later than 7:00 a.m., but no earlier than 6:45 a.m., satisfying for the court the existence of a causal relationship between his presence on the street and the employment.

In another case, Buechi v. Arcata Graphics, 97 A.D.2d 579, 468 N.Y.S.2d 65 (1983), benefits were awarded to a claimant who, just after the end of his shift, was struck by a car as he crossed a high-speed boulevard immediately adjacent to his employer’s plant. The court agreed that the high-speed, heavy traffic constituted a special risk that extended the “gray area” of the employer’s premises beyond its threshold.

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