Mean Street: Superior Court Declines to Extend the Premises Exception

Here’s a tricky situation - what happens when an employee, who works for the Superior Court aka the State of Delaware, literally falls into a sinkhole on State-owned property right before arriving to the Kent County Courthouse to perform her duties and the employee argues the “Premises Exception” of the Going & Coming Rule applies because the State owns the street?

In Browning v. State, IAB No. 1468187 (Feb. 14, 2020), the Board determined that Claimant was not on the Employer’s premises at the time of her fall, and therefore, she was not in the course and scope of her employment when she sustained her injuries. The Board considered that although Claimant normally parked on Federal Street as close to the Courthouse as possible, this was by choice and not required by the Employer. The Board further considered that while Employer owned Federal Street, the City of Dover exercised authority over it and maintained it.

On appeal, Claimant argued that the Premises Exception of the Going & Coming Rule should apply under the “control by use” theory as Claimant parked on Federal Street (State-owned property) in front of the Courthouse where many court employees parked daily.  The “control by use” theory states that “parking lots not owned by the employer may be part of the employer’s premises when . . . just used, by the employees . . . .” Claimant relied on Cox v. Quality Car Wash and Rose v. Cadillac Fairview Shopping Center – both cases where the employers did not own the parking lots where the claimants were injured but demonstrated enough control and maintenance of such parking lots for the Board to find that the Premises Exception applied. 

Judge Medinilla rejected Claimant’s reliance on these cases – finding both distinguishable to the facts here.  The driving factor in the Court’s affirmation of the Board’s decision was that, here, Claimant was injured after parking on a public street – not in a parking lot controlled/maintained by Employer – and the mere fact that the State owned the public street and knew that employees park on that Street was not enough for the Exception to apply. The Court did note that it was “sympathetic” to Claimant - “[a] dedicated State employee . . . [who] suffered an injury and found herself in both a literal and legal sinkhole.” Browning v. State, K20A-03-001 VLM (May 3, 2021).

In discussing this with my favorite legal pundit, John Ellis, he observed: “ If the claimant’s theory prevailed, there really wouldn’t be a going/coming rule applicable to the State since it is technically ‘owner’ of all roads.”  Per Cassandra Roberts, “Now that would be an expansion of the ‘Premises Rule’ that the Claimant’s Bar can only dream of.” ☺

Best,

Caroline Kaminski