New York's "Gray Area" Rule Does Not Aid Claimant Struck by Car Near Workplace
A New York appellate court affirmed a finding by the state’s Workers’ Compensation Board that a claimant/employee did not sustain injuries arising out of and in the course of his employment when he was struck by a car while crossing a public street in front of his place of work more than one hour prior to the start of his shift [Matter of Johnson v. New York City Tr. Auth., 2020 N.Y. App. Div. LEXIS 2642 (3d Dept. Apr. 30, 2020). The Court acknowledged that under New York’s “gray area” rule, the mere fact that the accident took place on a public road or sidewalk did not ipso facto negate the right to compensation. It held, however, that substantial evidence supported the Board’s decision that the risk of getting hit by a car while crossing the public road was unrelated to claimant’s employment.
Background
The relevant facts were not in dispute. At the time of the accident, claimant had arrived more than one hour early for his shift, had not yet reported to work and had not been approved for overtime.
“Gray Area” Rule
The appellate court reiterated New York’s special “gray area” rule [see Larson’s Workers’ Compensation Law, § 13.01], that as one approaches his or her place of employment, as was the case here, 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 will not ipso facto negate the right to compensation. Nevertheless, under such circumstances, 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, permitting the conclusion that the accident happened as an incident and risk of employment.
The appellate court stressed that although the public road and parking area used by claimant was located in front of his workplace, they were open to and used by the public. Claimant had made no showing that they were otherwise controlled by the employer, that workers were encouraged to use them or that they existed solely to provide access to the workplace.
The appellate court discounted claimant’s argument that his choice to drive to work and his general parking location was known to his supervisor and reduced his commute so that he could be well rested for work. It added that was no evidence that the method or route claimant chose served any business purpose, or that the employer benefitted from that route. Based on the foregoing, the court said substantial evidence supported the Board’s decision.