In the Superior Court Decision of Faisal Jameel v. Dember HMS Hospitals and Bayshore Community Hospital (decided April 28, 2025), the Superior Court was faced with the issue of whether an employee who died as a result of being struck as a pedestrian in the employer’s parking lot by a co-employee could file a Civil Action against her employer and co-employee. In a thoughtful and thorough Decision, the Superior Court once again held that the deceased worker’s dependents could only avail themselves of the workers’ compensation benefits available and not pursue a third-party action.
On October 6, 2021, the decedent, a nuclear medicine technologist, arrived at the Bayshore Community Medical Center for her work shift. Significantly, she parked in the designated parking lot for HMH employees. Shortly before 7:00 a.m., a co-employee, Dember, drove her vehicle into the same employee parking lot. She struck the decedent while she was walking to work at the hospital, resulting in her death.
Plaintiff argued that the condition of the parking lot was so unsafe as to pierce the immunity bar of Section 8 of the workers’ compensation statute. Plaintiff’s expert pointed out a number of safety features present in the parking lot for the public, but not in the parking lot designated for the employees. The patient/visitor parking lot had the following safety features:
- A peninsula to separate the parking spaces from any vehicular traffic way
- Sidewalks
- Fences to separate the pedestrian walkways from the vehicular travel way
- Crosswalks
- A pedestrian warning sign
- A vehicular stop sign
- A stop line
- A warning cone
By contrast, the Defendant presented a certified traffic operations engineer who opined that the parking lot design met or exceeded the standard of care for parking lots of its size and function. He concluded that the sole cause of the accident was the conduct of the co-employee, Dember.
The employer moved for Summary Judgment, which was granted by both the Trial Court and affirmed by the Superior Court. The decision concluded that the Plaintiff could not meet the burden of piercing the workers’ compensation immunity, which requires that two conditions be satisfied:
- The employer must know that its actions are substantially certain to result in injury or death to the employee
- The resulting injury and circumstances of its infliction on the worker are:
- More than a fact of life of industrial employer; and
- Plainly beyond anything that legislature intended the Workers’ Compensation Act to immunize
The Court concluded that while the employer’s conduct and the condition of the parking lot may establish some level of negligence and risk, they found no evidence that there was substantial certainty that an intentional wrong was committed. The facts revealed there were no “close calls” of previous accidents. There were no requests or demands to alter or correct the parking lot to make it safer. Viewing the facts most favorably to the Plaintiff, the Court still did not believe that there was evidence that a reasonable jury could find that there was an intentional wrong committed by the employer. Both the employer and the co-employee were immune from suit and the complaints were dismissed.
COMMENT: Once again, the Appellate Courts have affirmed the significant level of protection an employer has from a third-party lawsuit filed by its employee due to a work-related injury. The standard requiring substantial or virtual certainty of injury is extremely high and requires evidence to justify that not only was the risk known, but ignored despite a high degree of the probability of harm to one of its employees. Workers’ compensation benefits were paid to the spouse in this case, but there was no option for civil damages.
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