Cheryl Hersh v. County of Morris (A-59-12; 071433)
Because the County did not control the garage where
Hersh parked, the route of ingress and egress from the
parking garage to her office, or the public street
where she was injured, and did not expose her to any
special or additional hazards, Hersh’s injury occurred
outside the employer’s premises and therefore is not
compensable under the Workers’ Compensation Act.
4-1-14 In this appeal, the Court considers whether a plaintiff injured while crossing a public street as she walked from a private garage, where she had employer-paid parking, to her office a few blocks away is entitled to workers’ compensation benefits under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142.
Plaintiff, Cheryl Hersh, was employed by defendant, County of Morris (“County”). Although Hersh did not have sufficient seniority to park in a county-owned lot located adjacent to her building, the County also rented approximately sixty-five parking spaces for its employees in the Cattano Garage, a private parking garage containing several hundred parking spaces located approximately two blocks from Hersh’s office. The County granted Hersh permission to park in one of the rented spots, gave her a scan card so she could enter the garage, and instructed her to park on the third level. She was not assigned a particular parking space. On January 29, 2010, Hersh parked her car on the third level of the Cattano Garage, exited the garage, and was struck by a motor vehicle while crossing a public street between the Cattano Garage and her office. Hersh suffered significant injuries.
Hersh filed for workers’ compensation benefits pursuant the Workers’ Compensation Act. The judge of compensation concluded that Hersh’s injuries were compensable under the Act. Relying on Livingstone v. Abraham & Strauss, Inc., 111 N.J. 89 (1989), the judge found that parking lots provided or designated for employee use are part of the employer’s premises for purposes of workers’ compensation. Therefore, the judge found that Hersh’s accident occurred during the course of her employment because it happened after she had arrived at her employer-controlled lot. The Appellate Division affirmed. The panel agreed that the case was controlled by the principles of Livingstoneand held that, although the garage and the sidewalk en route to Hersh’s building were not part of the workplace in the property sense, the County exercised control over those areas by designating the third floor of the garage for use by employees. The panel determined that the County’s control extended the workplace premises to the garage and public streets. The Court granted defendant’s petition for certification. 213 N.J. 536 (2013).
HELD: Because the County did not control the garage where Hersh parked, the route of ingress and egress from the parking garage to her office, or the public street where she was injured, and did not expose her to any special or additional hazards, Hersh’s injury occurred outside of the employer’s premises and therefore is not compensable under the Workers’ Compensation Act.
1. Injuries “arising out of and in the course of employment” are compensable under the Workers’ Compensation Act. N.J.S.A. 34:15-7. Prior to 1979, workers’ compensation jurisprudence included the “going and coming rule,” which prevented awarding workers’ compensation benefits for accidental injuries that occurred during routine travel to or from the employee’s place of work. Due to many exceptions to the going and coming rule, allowing for countless awards of workers’ compensation benefits, in 1979, the Legislature amended the Act to make the definition of “employment” more restrictive. Those amendments, which define when employment begins and ends, replaced the “going and coming rule” with the “premises rule.” N.J.S.A. 34:15-36 provides: “Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer.” N.J.S.A. 34:15-36. The phrase “excluding areas not under the control of the employer” was intended to make clear that the premises rule can entail “more than the four walls of an office or plant.” Kristiansen v. Morgan, 153 N.J. 298, 316 (1997). “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred.” Id. at 316-17 (citing Livingstone, 111 N.J. at 96). (pp. 8-11)
2. In Livingstone, the employer, a mall tenant, directed its employees to park in the far end of the mall-owned parking lot to ensure that its customers would be able to use the closer spaces. 111 N.J. at 91. An employee was injured while walking toward the building after she parked her car in the lot. Id. at 90-91. The Court determined that the employee’s injuries arose out of and in the course of employment, and therefore were compensable under the Act, because the employer’s directive telling employees where they must park exposed its employees to an added hazard in order for the employer to gain a business benefit. Id. at 104-06. The Court clarified its Livingstone holding in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994). In Novis, while walking from her car to her place of employment, an employee slipped on the sidewalk connecting a parking lot to the sole entrance of the office building in which her employer was a tenant. Id. at 94. The Court found the employee’s injuries non-compensable, stating that the employer “simply shared the lot with the other tenants, a circumstance vastly different from the specific facts that influenced [the] holding in Livingstone.” Id. at 96. The Court held that because the facts were insufficient to establish any exercise of control by the employer over the lot or the ingress and egress route, the employee had not yet commenced her employment at the time of the accident. Ibid. The Court has also focused on ingress and egress routes to the place of employment in other workers’ compensation cases. In Ramos v. M & F Fashions, Inc., 154 N.J. 583, 593-94 (1998), the Court concluded that an employer was responsible for an employee’s injuries which occurred when he fell down an elevator shaft regularly used by the employees to access the employer’s fourth-floor business. Similarly, in Brower v. ICT Group, 164 N.J. 367, 373-74 (2000), the Court found that a stairwell in the rear of the building accessing the employer’s second-floor place of employment was part of the employer’s premises. (pp. 12-16)
3. The Appellate Division has also grappled with the degree of control or direction an employer exercised to decide whether benefits are available. In Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 353-54 (App. Div. 1999), a woman assaulted on a public sidewalk after picking up her paycheck was not entitled to compensation because the event occurred on a public sidewalk, “not in the area of or leading to a designated employee parking lot,” and the sidewalk was an area where the employer had no control. In Serrano v. Apple Container, 236 N.J. Super. 216, 220-21 (App. Div. 1989), an employee who had left his employer’s parking lot and was taking a shortcut through an adjacent parking lot to gain access to a public roadway when injured, was neither acting in the course of his employment nor injured on the premises of his employer. By contrast, in Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 92 (App. Div. 1992), although the staircase and adjacent sidewalk where the employee was injured were not part of the employer’s premises in a property sense, the injuries were compensable because the employer controlled the areas by instructing the employees which route to use to enter and exit the employer’s establishment. InBradley v. State, 344 N.J. Super. 568, 583 (App. Div. 2001), injuries sustained by employees after arriving at a parking lot were compensable even though the lot was not owned by the employer because the employer required its employees to follow a specific ingress and egress route from the parking lot to the building. These cases support the principle that public places that are not under the control of the employer are not considered part of the employer’s premises for purposes of workers’ compensation benefits, even if employees use the route for ingress or egress to the place of employment, except in those instances where the employer controls the route. (pp. 16-18)
4. Applying the principles of these cases to the appeal here, the County did not own, maintain, or control the Cattano Garage. It only rented a small portion of the lot and did not derive a direct business interest from paying for employees to park there. The County also did not control the public street where the accident occurred and did not dictate which path Hersh had to take to arrive at her place of employment. In walking a few blocks from the Cattano Garage to her workplace, Hersh did not assume any special or additional hazards. Unlike the limited routes to the places of employment in Brower, Ramos, or Ehrlich, Hersh’s route to work was used by the public, similar to the route to the building in Novis. Even though the “premises rule” is not limited to the four walls of an office or plant, the concept of “employer control” to determine the compensability of an employee’s injury is limited, and depends on the situs of the accident and the degree of employer’s control of the property. In the circumstances of this case, an employee who is injured on a public street, not controlled by the employer, is not entitled to compensation under the Workers’ Compensation Act. (pp. 18-20)
