Unsurprisingly, the two-part question posed in the title has two answers.
No, an Instacart shopper cannot file a workers’ comp claim. Yes, grounds for a slip and fall lawsuit may exist. Both responses merit fuller explanations.
Slips and Falls Are a Real Risk
First, slips and falls are no joke, no matter how popular America’s Funniest Home Videos and YouTube “fail” compilations remain. The Centers for Disease Control and Prevention website share these “Important Facts About Falls”:
- One out of five falls causes a serious injury.
- Over 800,000 patients a year are hospitalized because of a fall injury, most often because of a head injury or hip fracture.
- Falls are the most common cause of traumatic brain injuries (TBI).
- Falls can cause broken bones, like wrist, arm, ankle, and hip fractures.
Instacart shoppers will encounter three of the most-common causes of slips and falls—wet or recently mopped and waxed floors, potholes in parking lots and uneven sidewalks—frequently. They may also lose their footing in icy walkways and on poorly constructed or maintained stairs while making deliveries.
- If I Get Injured on the Job in Virginia, Is Filing a Workers’ Comp Claim My Only Option for Securing an Injury Settlement?
- When Can a Business Be Held Responsible for a Slip or Fall at Their Premises?
- A Personal Injury Attorney Reviews Virginia Laws on Slips and Falls
But even when the accident that left an Instacart shopper badly injured, in need of medical care and unable to keep the gig clearly occurred while they were filling or completing an order, they cannot file a workers’ comp claim.
Why Workers’ Comp Won’t Apply
In Virginia and North Carolina, where my personal injury law firm colleagues and I advise and represent slip and fall victims, Instacart shoppers are bound by the terms of that company’s United States of America Independent Contractor Agreement. Here is what that agreement states regarding workers’ comp eligibility:
You enter into this Agreement as an independent contractor with a business relationship between you and Instacart. You acknowledge and agree that you operate a business separate and distinct from Instacart, and that both you and Instacart are able to operate your respective businesses without the other. It is understood that in agreeing to provide Services under this Agreement, Contractor shall be acting and shall act at all times as an independent contractor, and not as an employee of Instacart for any purpose whatsoever, including without limitation, for purposes relating to taxes, payments required by statute, or any other withholdings or remittances to any governmental agency or authority. Under no circumstances shall you look to Instacart as your employer, partner, joint venturer, agent, or principal, nor shall this Agreement be construed to establish any such relationship. YOU SHALL NOT BE ENTITLED TO ANY EMPLOYEE BENEFITS ACCORDED TO INSTACART’S EMPLOYEES, INCLUDING BUT NOT LIMITED TO, WORKERS’ COMPENSATION, DISABILITY INSURANCE, HEALTH INSURANCE, VACATION, OR SICK PAY. You further acknowledge that this Agreement does not create any employer-employee relationship between a third party retailer and yourself, and that you are not entitled to any benefits, including but not limited to, Workers’ Compensation coverage, afforded to any employees of a third party retailer.
Neither Virginia nor North Carolina extend workers’ comp eligibility to nonemployees. As independent contractors, Instacart shoppers simply cannot access the injured worker coverage that the company is required to carry with the states.
Independent contractors can take out their own workers’ comp insurance, but doing that rarely makes sense for a person who fills grocery orders for a few hours each week. When an Instacart shopper does slip, fall and suffer a serious injury while shopping or delivering groceries, their best legal option is exploring the possibility of filing a premises liability claim against the store or property owner.
When Grounds for a Slip and Fall Lawsuit Exist
Premises liability is the ancient legal principal that business and homeowners have legally enforceable duties to protect customers and visitors from harm. In modern-day, practical terms, a grocery store must warn about wet floors, a shopping center owner must fill and pave over parking lot potholes, and property managers must ensure that stairs leading to upper-floor apartments are built and kept up to code.
Being negligent in protecting an Instacart shopper from harm makes a business or property owner responsible for paying the injured person’s past and future medical expenses, replacing lost wages and providing compensation for pain and suffering. Succeeding with a slip and fall lawsuit is not always easy, however.
Both Virginia and North Carolina enforce a strict contributory negligence rule. Holding a store or homeowner liable will require showing that the Instacart shopper could not see and avoid the slip and fall hazard. Producing medical records that establish both that the injury resulted directly from the fall and that treatment cost a significant amount of money is also necessary.
An experienced personal injury attorney with dual licensure in Virginia and North Carolina, Eric Washburn received a B.B.A. in Finance from James Madison University—initially worked in the information technology field before obtaining his law degree from Thomas M. Cooley Law School in Lansing, Michigan. Once an Assistant Commonwealth’s Attorney in Danville, Va., Eric has been recognized by Super Lawyers Magazine as a “Rising Star” Super Lawyer in Virginia since 2014.