Fell at Work: Comp or a Premises Claim?

Falls at work happen in two very different kinds of places. Some happen on the employer's own premises: the warehouse floor, the restaurant kitchen, the company office. Others happen somewhere else: a customer's loading dock, a client's home, a medical office building where a sales rep has an appointment, a job site owned by someone who hired your employer. In the slip, trip and fall cases we handle, that difference decides whether a second claim exists beside workers' compensation.

This guide covers falls on foot at work: the first week's steps, who besides your employer may be responsible for the condition of the property, and the rules that limit claims by a contractor's workers. The two-claim rules for crashes on the job are in our guide on a car accident while working. Hazards such as broken stairs and poor lighting are covered on our dangerous conditions of property page.

What happens in the first week, step by step?

Report the fall to your employer in writing. A workers' compensation claim generally requires written notice to the employer within 30 days (Labor Code 5400), although a supervisor's knowledge of the injury from any source counts as notice (Labor Code 5402(a)). Put it in writing anyway and keep a copy.
Get the claim form. If the injury causes lost time beyond your shift or needs treatment beyond first aid, the employer must give or mail you a claim form within one working day of learning about it (Labor Code 5401(a)).
Return it the safe way. The Division of Workers' Compensation says to complete only the employee section, sign and date it, keep a copy, and return it in person or by certified mail with a return receipt. It warns that not returning the form may risk your right to benefits.
Treatment starts. Within one working day after you file the claim form, the employer must authorize treatment for the injury and continue it until the claim is accepted or rejected, with its liability limited to $10,000 until then (Labor Code 5402(c)).
Watch for the insurer's letter. The Division says the insurer generally has 14 days to mail you a letter on the status of your claim. If liability is not rejected within 90 days after the claim form is filed, the injury is presumed compensable (Labor Code 5402(b)).
Record the place where you fell. Photograph the hazard, note who owns or manages the property, and get the names of witnesses and of the person who took any incident report there. A store or building where you were working is a separate business from your employer, with its own records and its own insurer.
Identify every possible defendant. A claim against anyone other than your employer is not affected by the comp claim (Labor Code 3852), and for a fall that claim generally must be filed in court within two years (Code of Civil Procedure 335.1).

Who can be responsible for a fall at work?

Where you fell	Workers' comp from your employer?	A premises claim against whom?	Main rule
Your employer's own workplace, which it owns or controls	Yes	Generally no one: comp is the exclusive remedy against the employer, with narrow exceptions	Labor Code 3600 and 3602
A customer's or client's business, on a delivery, sales call or service visit	Yes	The business that owns or controls the property	Labor Code 3852; CACI 1000 and 1003
A common hallway, stairway or parking lot in a building your employer leases	Yes	The landlord, for areas it controls	CACI 1006
A site where the owner hired your employer as a contractor	Yes	The owner, only in limited situations	CACI 1009A, 1009B and 1009D
A city sidewalk or other public property	Yes	The public entity, after a written claim within six months	Government Code 911.2

Why can't I bring a premises claim against my own employer?

When the conditions of compensation are met, workers' compensation is the sole and exclusive remedy against the employer (Labor Code 3602(a)). Those conditions include an employment relationship covered by the system and an injury arising out of and in the course of the employment (Labor Code 3600(a)). The trade is that benefits are owed without regard to negligence, so you do not have to prove the employer let the floor stay wet, but you cannot sue it for pain and suffering over that floor.

The exceptions in Labor Code 3602(b) are narrow, such as a willful physical assault by the employer or an injury made worse by the employer's fraudulent concealment of it. An unsafe floor, a missing handrail or a cluttered stockroom at your own workplace is a workers' compensation matter, not a lawsuit. That is why the important question after a fall at work is whose property it was.

When is a property owner responsible to someone who was working there?

If you were on another business's property for your job but were not hired by that business to work on the property, such as a delivery driver or a sales representative, the owner owes you the ordinary duty of care. It must use reasonable care to keep the property reasonably safe, discover unsafe conditions, and repair them or warn about them (CACI 1001), and you must show it knew or should have known about the hazard (CACI 1003). Our guide on how to prove the owner knew about the hazard explains that step.

The rules are narrower when the owner hired your employer as an independent contractor to do work on the property, for example a roofing, cleaning, electrical or painting company. A decision the Judicial Council cites under CACI 1009A explains that a hirer presumptively delegates to the contractor the duty to provide a safe workplace for the contractor's employees. The contractor's worker can still recover from the owner in three situations the jury instructions describe:

A concealed hazard. The owner knew or should have known of a preexisting hidden unsafe condition, your employer did not know and could not reasonably have found it through a reasonable inspection, and the owner failed to warn your employer (CACI 1009A).
Retained control. The owner kept some control over how the work was done, actually exercised it, and that negligent exercise affirmatively contributed to your injury (CACI 1009B).
Defective equipment. The owner negligently provided unsafe equipment that contributed to your injury (CACI 1009D).

The California Supreme Court decision quoted under CACI 1009A, Kinsman v. Unocal, gives an example: a roofer sent to repair a defective roof generally could not sue the owner after falling through that roof, because inspecting it was part of the job, but might have a claim if a wall unrelated to the roof collapsed under the ladder. Falls from heights on job sites are covered in more detail in who is responsible for a scaffold, ladder or roof fall. The rules for general contractors are in when a general contractor is responsible for a subcontractor's worker.

How do the two claims fit together after a fall?

The comp claim pays benefits regardless of fault. The premises claim can include damages comp does not pay, such as pain and suffering, but it requires proof that the owner was negligent, and the owner may argue your own carelessness reduces the award (CACI 405). Your employer, or its insurer, can make its own claim against the property owner or join yours to recover what it paid (Labor Code 3852), and in a suit brought by you alone, the court pays litigation expenses and attorney's fees first and then allows the employer a lien for what it paid (Labor Code 3856(b)).

In the premises case itself, jurors are told not to consider whether you received workers' compensation benefits (CACI 3965). The deadlines run on separate tracks: proceedings to collect comp benefits generally must start within one year of the injury or of the last benefit furnished (Labor Code 5405), while the injury lawsuit has its own two-year limit (Code of Civil Procedure 335.1).

Where do these cases go in Sonoma County?

Workers' compensation disputes are handled by the state Division of Workers' Compensation. Its Santa Rosa district office is at 50 D Street, Room 420, Santa Rosa, (707) 576-2391, and it holds free injured worker workshops by Zoom at 3 p.m. on the first Friday of each month in English and the third Friday in Spanish. A premises lawsuit against a property owner goes to the superior court; see what to expect at Sonoma County Superior Court.

What changes the answer?

You were hired directly by a homeowner. A person employed by the owner or occupant of a home for household duties, such as cleaning or child care, can be that homeowner's employee for workers' compensation (Labor Code 3351(d)), except when the work in the 90 days before the injury was, or was contracted to be, under 52 hours or paid $100 or less (Labor Code 3352(a)(8)). Which side of that line you fall on decides whether the homeowner is your employer or an ordinary property owner; see a fall at a private home.

You fell on public property. A claim against a city, county or the State must be presented in writing within six months (Government Code 911.2). See how to file an injury claim against a city, county or the State.

Alcohol or drugs were involved. Comp does not cover an injury caused by the employee's intoxication (Labor Code 3600(a)(4)). A premises claim does not have that bar, but the owner may argue your condition contributed to the fall (CACI 405).

It was an off-duty social or sports event. Comp does not cover voluntary participation in an off-duty recreational, social or athletic activity that is not part of the job, unless it was reasonably expected or required by the employment (Labor Code 3600(a)(9)). A fall at a company picnic in a park may then be only a premises claim; see a fall on a trail or in a park.

You are afraid of losing your job. The rules on retaliation are explained in whether you can be fired for a workplace injury claim.

What could this look like? An example

For example, imagine a pharmaceutical sales representative who visits a medical office building in Santa Rosa. In the building's shared hallway, controlled by the landlord, a carpet seam has been lifted for weeks, and tenants have emailed the building manager about it. She catches her heel, falls and breaks her ankle.

She texts her manager from the urgent care clinic and follows up with an email that afternoon. Her employer mails the claim form the next day, she returns it by certified mail, and treatment is authorized under Labor Code 5402(c). Before leaving the building, she photographs the seam with her phone and asks the building manager's office for its incident report.

Comp pays her medical care and part of her lost wages. Her separate claim against the building owner rests on the tenants' emails, which show the owner knew about the seam (CACI 1003 and 1006), and can include her pain and suffering. The comp insurer gives notice of its lien, and any recovery is divided under Labor Code 3856. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make after a fall at work?

Telling a coworker but never giving the employer written notice.
Not returning the claim form, or not keeping a copy and proof of mailing.
Assuming workers' comp is the only claim without asking who owned the property.
Leaving the site without photos or the names of the owner's staff who saw the hazard.
Settling with the property owner's insurer without involving the comp insurer, which has rights in the recovery.
Letting the two-year premises deadline pass while the comp case moves.

What should I do this week?

Give your employer written notice of the fall, with the date, time and place, and keep a copy.
Complete the employee section of the claim form and return it by certified mail, return receipt requested.
Write down the name of the business or person who owns or manages the property where you fell.
Collect photos, witness names and any incident report from that property.
Keep every medical record and every letter from the comp insurer.
Read our guide to California personal injury deadlines for the claim against the property owner.

Frequently asked questions

Can I sue my employer if it ignored a known hazard?

Generally no. Workers' compensation is the exclusive remedy against the employer when the conditions of compensation are met, even if the employer was careless (Labor Code 3602(a)). The exceptions in Labor Code 3602(b) are narrow.

Do I have to choose between comp and the premises claim?

No. A comp claim does not affect your right to recover damages from someone other than your employer (Labor Code 3852). The two run side by side.

Does it matter that I was partly at fault?

Not for comp, which is owed without regard to negligence (Labor Code 3600(a)). In the premises claim, your share of fault reduces the damages but does not erase them (CACI 405).

Can I get workers' comp if I was a contractor's employee?

Yes, from your own employer, the contractor. A claim against the property owner who hired the contractor depends on the limits in CACI 1009A, 1009B and 1009D. If you were hurt at a construction site, see the first week after a construction site injury.

What if my employer never gives me a claim form?

The Division of Workers' Compensation says you can download it from its forms page or contact its Information and Assistance Unit. The DWC Information Services Center is at 1-800-736-7401.

How is a premises claim against the owner valued?

The same way as any fall claim, with the comp insurer's lien paid from the recovery. See what affects the value of a slip and fall claim.

Will I have to give a deposition in the premises case?

If a lawsuit is filed, the owner's lawyer may question you under oath before trial (Code of Civil Procedure 2025.010). Our guide on how to prepare for a deposition in a premises case explains the rules.

If you fell while working on someone else's property, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation about a claim against the property owner.

I fell at work: workers' comp, a premises claim, or both?