Zoucha v. Touch of Class Lounge: the Supreme Court of Nebraska Distorted Provisions of the Nebraska Workers' Compensation Act and Misapplied the Parking Lot Rule

• Publication year: 2022

39 Creighton L. Rev. 181. ZOUCHA V. TOUCH OF CLASS LOUNGE: THE SUPREME COURT OF NEBRASKA DISTORTED PROVISIONS OF THE NEBRASKA WORKERS' COMPENSATION ACT AND MISAPPLIED THE PARKING LOT RULE

Creighton Law Review

Vol. 39

INTRODUCTION

Workers' compensation provides the sole remedy against an employer for an employee injury arising out of and in the course of employment.(fn1) Under Nebraska's Workers' Compensation Act (the "Act"), a claimant must establish his injury causing accident or occupational disease arose out of and occurred in the course of employment, as these phrases operate as separate elements under the Act.(fn2) To arise out of employment, the injury must occur within the scope of the employee's employment in terms of its character, cause, and origin.(fn3) To occur in the course of employment, an injury must occur within the time, place, and circumstances of employment while the employee is engaged in a task related to the employment.(fn4)

An employee injury sustained while the employee is going to or from a fixed workplace is not compensable under the going to and from work rule.(fn5) However, the Nebraska Supreme Court has carved some exceptions from the compensation prohibition of the going to and from work rule.(fn6) One exception allows compensation for employee injuries if they occur on the employer's premises even if the employee has left work or has not arrived at work.(fn7) The Nebraska Supreme Court reasoned property the employer owns or maintains is considered the employer's premises under workers' compensation law and the premises exception.(fn8)

A second exception to the going to and from work rule allows compensation for injuries occurring while an employee is traveling to or from work if an employer-created condition forms a distinct causal connection between the employee's injury and the employment.(fn9) This exception does not require the employee injury to occur on the employer's premises for the injury to be compensable.(fn10) The distinct causal connection exception is an additional exception that supplements, rather than takes the place of, the premises exception to the going to and from work rule.(fn11)

In Zoucha v. Touch of Class Lounge,(fn12) the Supreme Court of Nebraska decided Stephanie Zoucha's ("Zoucha") injury, sustained in a common strip mall parking lot while Zoucha was leaving work, was compensable.(fn13) The court reversed the Nebraska Court of Appeals' decision that Zoucha's injury was not compensable under the going to and from work rule based on the determination that Zoucha was no longer on her employer's premises when her injury occurred.(fn14) Relying on reasoning from other jurisdictions, the Supreme Court of Nebraska decided Zoucha's parking lot injury occurred on her employer's premises because her employer was a tenant in a strip mall with a common parking lot.(fn15)

In making its decision, the court adopted what it referred to as the "parking lot rule," which the majority of jurisdictions purportedly apply.(fn16) According to the court, the parking lot rule expands an employer's premises for workers' compensation purposes and provides "parking lots in strip malls are part of the premises of employers whose main premises are located within the mall."(fn17) Under the court's formulation, the parking lot rule enlarges the premises exception to the going to and from work rule, and allows compensation for employee injuries that occur in mall parking lots while an employee is going to or leaving work.(fn18) The court therefore decided Zoucha's injury was compensable because it occurred on her employer's prem-ises.(fn19) In reaching this conclusion, the court discussed no evidence the employer controlled or maintained the lot.(fn20)

This Note will begin by reviewing the facts and holding of Zoucha v. Touch of Class Lounge.(fn21) This Note will then detail relevant provisions of the Nebraska Workers' Compensation Act and examine cases discussing and applying the going to and from work rule and the parking lot rule exception to the going to and from work rule.(fn22) Finally, this Note will demonstrate how the Supreme Court of Nebraska erred in deciding Zoucha's injury was compensable under the parking lot rule exception.(fn23) This Note will show (1) the Supreme Court of Nebraska wrongly decided Zoucha's injury occurred on her employer's premises, (2) the court's application of the parking lot rule in Zoucha departed from the rule's customary application in other jurisdictions, and (3) the court could have concluded Zoucha's injury was compensable under the distinct causal connection exception to the going to and from work rule without adopting the parking lot rule exception.(fn24)

FACTS AND HOLDING

In Zoucha v. Touch of Class Lounge,(fn25) Stephanie Zoucha ("Zoucha"), a regular employee of the Touch of Class Lounge ("Lounge"), arrived at work around 4:30 p.m. on the afternoon of June 4, 2001.(fn26) Zoucha was the only employee bartending at the Lounge that night.(fn27) Among the patrons who entered the Lounge on June 4 was William Nunez ("Nunez").(fn28)

Zoucha took Nunez's drink away from him at some point that night because he had consumed too much alcohol.(fn29) Later, Zoucha refused Nunez's request that she smoke marijuana with him.(fn30) During the hours before closing, only Nunez and Bob Parish ("Parish"), a regular at the Lounge on Monday nights, remained in the Lounge.(fn31) Parish offered to walk Zoucha to her car after closing, as he usually did on Monday nights, but left early when Zoucha told him she would be fine without him.(fn32) Zoucha's regular employment responsibilities ended when she cleaned, locked, and exited the Lounge at about 2:15 a.m.(fn33)

After locking the Lounge that morning, Zoucha walked directly to her car, which she had parked about 20 yards from the Lounge's door in a strip mall parking lot next to the Lounge.(fn34) While she put her bags into her car, Nunez struck her on the head with a blunt object.(fn35) The blow fractured Zoucha's skull and caused other serious injuries, including memory loss and cognitive impairment.(fn36) In addition, Zoucha's purse containing tip money was stolen.(fn37)

The owner of the Lounge, Patricia Bauer ("Bauer"), leased part of the building in which the Lounge was located.(fn38) The Lounge building, which contained a second business, and neighboring businesses were arranged like an outdoor shopping center or strip mall.(fn39) Due to this arrangement, employees and customers from businesses adjacent to the Lounge also parked in the lot where Zoucha regularly parked.(fn40) Bauer did not own the strip mall parking lot where Zoucha's injury occurred and had no authority or control over the lot.(fn41) Bauer expected Zoucha would park in the lot because it was convenient, but she did not require Lounge employees to park there.(fn42)

To recover for her injuries, Zoucha filed a petition for workers' compensation on December 3, 2001 with the Nebraska Workers' Compensation Court.(fn43) Judge Michael P. Cavel dismissed Zoucha's petition on October 9, 2002, finding Zoucha's injuries did not arise out of and in the course of her employment as required by the Nebraska Workers' Compensation Act.(fn44) Judge Cavel distinguished Zoucha from other Nebraska cases in which courts allowed employee compen-sation for injuries sustained in a parking lot outside their employment.(fn45) The court noted the Lounge parking lot was a common parking area over which the Lounge had no control or authority.(fn46) According to the court, Zoucha's injuries did not arise in the course of her employment because the Lounge did not provide or sponsor parking for its employees and Zoucha was no longer on her employer's premises.(fn47) The court applied the general rule that when an employee's injury occurs off the employer's premises while the employee is going to or from work, the injury does not arise out of and in the course of employment.(fn48)

Zoucha appealed the dismissal of her claim to a review panel of the Nebraska Workers' Compensation Court.(fn49) Judges J. Michael Fitzgerald, Laureen Van Norman, and John R. Hoffert unanimously affirmed the workers' compensation court's dismissal.(fn50) The review panel explained Nebraska abandoned the bright-line premises exception to the going to and from work rule, which allowed employee recovery for injuries sustained while going to or from work only if the injury occurred on their employer's premises.(fn51) Under the review panel's expanded premises analysis, tenant employers could be liable for an employee's off-premises injury only if the employer had some degree of control over or responsibility for the area where the injury occurred.(fn52) The court explained if the lease agreement granted the employer the right to park in the lot, if the employer paid fees pursuant to a lease to use the common parking lot, or if the landlord charged the employer a fee for maintenance or use of common areas, an injured employee could establish employer control or responsibility over the lot.(fn53) The review panel found nothing in the record showing any lease provision regarding parking or maintenance of common areas and therefore decided the Lounge had no control or responsibility for the parking lot and could not be liable for Zoucha's injury.(fn54) As such, the review panel affirmed the workers' compensation court's decision that Zoucha's injury was not...