Cheryl Hersh v. County of Morris (071433) , 217 N.J. 236 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Cheryl Hersh v. County of Morris (A-59-12) (071433)
Argued November 19, 2013 -- Decided April 1, 2014
FERNANDEZ-VINA, J., writing for a unanimous Court.
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
Livingstone and 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)
1
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.
In Bradley 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)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-59 September Term 2012
071433
CHERYL HERSH,
Petitioner-Respondent,
v.
COUNTY OF MORRIS,
Respondent-Appellant.
Argued November 19, 2013 – Decided April 1, 2014
On certification to the Superior Court,
Appellate Division.
John R. Tort, Jr., Special Counsel, argued
the cause for appellant (Leitner, Tort,
DeFazio, Leitner & Brause and Daniel W.
O’Mullan, Morris County Counsel, attorneys;
Mr. Tort, Christopher B. Leitner and
Nicholas C. Caruso, on the briefs).
Lewis Stein argued the cause for respondent
(Nusbaum, Stein, Goldstein, Bronstein &
Kron, attorneys).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, defendant, County of Morris, challenges an
award of workers’ compensation benefits to plaintiff, Cheryl
Hersh, pursuant to N.J.S.A. 34:15-1 to -142 (“the Workers’
Compensation Act,” or “the Act”). The award was based on a
finding that Hersh’s injuries arose out of the course of her
employment pursuant to N.J.S.A. 34:15-7 and 34:15-36.
1
N.J.S.A. 34:15-7 authorizes an award of workers’
compensation benefits to an employee injured in an accident
“arising out of and in the course of employment[.]” N.J.S.A.
34:15-7. Employment is deemed to commence “when an employee
arrives at the employer’s place of employment to report for
work[.]” N.J.S.A. 34:15-36.
Hersh was injured as she walked from the garage, in which
she had employer-paid parking, to her office a few blocks away.
She crossed a public street and was hit by a car, suffering
significant injuries. Hersh asserted that the injuries occurred
in the course of her employment and, therefore, were compensable
under the Workers’ Compensation Act.
A judge of compensation found that Hersh’s accident
occurred during the course of her employment because it happened
after she had arrived at her employer-controlled parking lot.
The Appellate Division affirmed the compensation judge’s order.
We conclude that when Hersh was injured she had not yet
arrived at work for purposes of N.J.S.A. 34:15-36. The garage
where she parked was “not under the control of the employer” so
as to trigger coverage. See N.J.S.A. 34:15-36. Hersh was
injured on a public street, which was not under the control of
the employer so as to trigger coverage, and the County had no
oversight or authority over the route, or over the manner of
ingress or egress, to the building where she worked. In
2
addition, the County did not require employees to enter and exit
the building by using specific areas, and no additional hazards
were created for the employee in traversing the public streets.
We therefore find that Hersh was not entitled to coverage under
the Act and reverse the judgment of the Appellate Division.
I.
Hersh has been employed by the County of Morris (“County”)
since September 2002 as a Senior Clerk in the Board of
Elections. During her first two years of employment from 2002
to 2004, plaintiff paid to park at a private lot on Schuyler
Place in Morristown, which is located behind her workplace at
the County Records Administration Building. Subsequently, the
County assigned her free parking at a private garage on Cattano
Avenue (“Cattano Garage”) located approximately two blocks from
the Administration Building.
The Cattano Garage contains several hundred parking spaces
of which the County only rented approximately sixty-five for its
employees. A county-owned lot was adjacent to plaintiff’s
building, but those parking spaces were assigned on the basis of
seniority. Hersh did not have sufficient seniority to park
there. Instead, the County granted Hersh permission to park in
one of the county-rented spots in the Cattano Garage, gave her a
scan card so she could enter the garage and instructed her to
3
park on the third level. She was not assigned a particular
parking space.
On January 29, 2010, ten minutes before she was due to
report to work, plaintiff parked her car on the third level of
the Cattano Garage, exited onto Cattano Avenue, and proceeded to
walk approximately one half-block to Washington Street. As she
crossed Washington Street in the cross-walk, she was struck by a
motor vehicle that ran a red light. Plaintiff suffered
significant injuries that required medical treatment.
II.
On May 18, 2010, Hersh filed a petition for workers’
compensation benefits pursuant to the Act, for the injuries she
suffered when she was “struck by a car while at work.” Hersh
asserted that the garage was used in connection with the
County’s business due to its utilization for employee parking,
and thus, was part of the employer’s premises for the purpose of
workers’ compensation.
In its answer, the County asserted that the accident was
not covered under the Act because the Cattano Garage was not
adjacent to the workplace and the County neither owned nor
operated the facility. Further, the County submitted that even
if the garage was a part of the employer’s premises, once
plaintiff exited onto the street where the employer exercised no
4
control, she was outside the sphere of employment, and therefore
the accident was not compensable.
In an order and written opinion dated November 1, 2010, the
judge of compensation concluded that Hersh’s injuries “arose
from the course of her employment and were therefore
compensable.” Relying on Livingstone v. Abraham & Strauss,
Inc., 111 N.J. 89 (1989), after hearing testimony from Cheryl
Hersh and Mark B. Smith, Director of Personnel, the compensation
judge reasoned that the designation of a parking area for the
employees caused employees to be exposed to an added hazard
traversing the parking lot over the distance from the designated
area to the work sites. He found that parking lots provided or
designated for employee use are part of the employer’s “premises
for purposes of workers’ compensation.”
The compensation judge further found that when the County
elected to pay for parking rather than reimburse employees for
their parking expenditures, it thereby accepted responsibility
for the consequences and risks of that decision. Thus, the
compensation judge ruled the County placed Hersh in the course
of her employment at the direction of her employer from the time
she entered the Cattano Garage until she exited the garage at
the end of the workday.
By contrast, the compensation judge hypothesized that had
the County decided to reimburse its employees for parking,
5
instead of designating the parking lot, leaving to the employee
the decision of where to park (with all of the consequences and
risks of that decision), the County would not have extended its
“premises.”
Finally, the compensation judge rejected the County’s
arguments that the employee was no longer in the course of her
employment when she exited the garage and reentered the public
sphere onto the public street. He explained that the County’s
liability is not dependent upon its control of the locus of the
injury; rather, liability is dependent upon the control of the
employee’s activities. He reasoned that it would be
unreasonable to find that injuries sustained in the parking lot
and in the building are compensable, but injuries sustained in
between the two are not compensable.
Defendant appealed on July 24, 2012, and in an unpublished
per curiam opinion, the Appellate Division affirmed the workers’
compensation order. The appellate panel concluded that the case
was controlled by the principles of Livingstone, supra.
The panel also found instructive the Appellate Division
decision in Bradley v. State, 344 N.J. Super. 568 (App. Div.
2001), which held that injuries sustained by state employees
while traveling to work from a county-owned lot were
compensable. Accordingly, the panel concluded that, although
the garage and the sidewalk en route to Hersh’s building were
6
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 who did not have enough
seniority for a parking space in the adjacent county-owned lot.
The appellate panel determined that the employer’s control
extended the workplace premises to the garage and public
streets. Accordingly, the panel affirmed the compensation
judge’s decision.
We granted defendant’s petition for certification. 213
N.J. 536 (2013).
III.
The County argues that providing paid parking in a public
garage does not extend the employer’s control of the area or
areas between the garage and work site. It asserts that this
Court in Livingstone, supra, found the injury in that case
compensable because the purpose of instructing employees to park
in a particular area of the mall parking lot was entirely for
the employer’s benefit, mainly to keep open for customers the
spaces closer to the store. In the present case, defendant
argues that in contrast to Livingstone, supra, there was no
discernible employer benefit in instructing employees to park in
the Cattano Garage.
The County also contends that this case is similar to
Cannuscio v. Claridge Hotel, 319 N.J. Super. 342 (App. Div.
7
1999), where the Appellate Division held that an employee’s
injuries sustained from an attack on a public sidewalk after
picking up a paycheck from an administrative building were not
compensable. Moreover, the County asserts that the public
highway on which the accident occurred cannot be under the
“control” of the County because a common sense interpretation of
the statutory requirement of “control” cannot include a public
street corner.
Hersh contends that the County disregards the essence of
Livingstone, supra. She claims that the County focuses on
parking as a perk and ignores the fact that employers give perks
for the employer’s benefit largely to improve worker retention.
She further argues that the County exercised control of the
Cattano Garage because it instructed the employees to park in a
specific location. Therefore, she maintains that she parked in
the garage in connection with the County’s business, and that
the garage was part of the employer’s premises for purposes of
workers’ compensation.
IV.
Appellate review of workers’ compensation cases is “limited
to whether the findings made could have been reached on
sufficient credible evidence present in the record . . . with
due regard also to the agency’s expertise[.]” Sager v. O.A.
Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citation
8
omitted). Nonetheless, the judge of compensation’s legal
findings are not entitled to any deference and, thus, are
reviewed de novo. Williams v. A & L Packing & Storage, 314 N.J.
Super. 460, 464 (App. Div. 1998).
“The [Workers’] Compensation Act ‘is humane social
legislation designed to place the cost of work-connected injury
on the employer who may readily provide for it as an operating
expense.’” Livingstone, supra, 111 N.J. at 94-95 (quoting
Horniack v. Great Atl. & Pac. Tea Co., 63 N.J. 99, 101 (1973)).
Thus, the Act is “construed and applied in light of this broad
remedial objective.” Id. at 95.
The Act provides that
[w]hen employer and employee shall by
agreement . . . accept the provisions of
this article[,] compensation for personal
injuries to . . . such employee by accident
arising out of and in the course of
employment shall be made by the employer[.]
[N.J.S.A. 34:15-7.]
Prior to 1979, the workers’ compensation law had “broad
statutory language defining compensable accidents as those
arising out of and in the course of the employment.” Watson v.
Nassau Inn, 74 N.J. 155, 158 (1977) (internal quotation marks
omitted). The workers’ compensation jurisprudence at the time
included the “going and coming rule,” a doctrine that prevented
awarding workers’ compensation benefits for accidental injuries
9
that occurred during routine travel to or from the employee’s
place of work. Ibid. The purpose of the rule was to separate
work risks from ordinary risks unrelated to employment. Id. at
159. The rule was premised on the assumption that the normal
journey to and from work is of no particular benefit to the
employer and exposes the worker to no unusual risks. Ibid.
However, there were many exceptions to the rule, allowing for
countless awards of workers’ compensation benefits, to the point
that this Court concluded:
the general rule now has a rather limited
applicability, extending only to those
routine daily trips to or from an employee’s
fixed place of business at specified hours
at the beginning or end of the day. . . .
[It is] limited to travel which has no
special circumstances suggesting particular
benefits to the employer.
[Briggs v. Am. Biltrite, 74 N.J. 185, 190
(1977).]
As a result, in 1979, the Legislature amended the Workers’
Compensation Act, updating the definition of “employment” to be
more restrictive. See N.J.S.A. 34:15-36. More specifically, a
section was added “to establish[] relief from the far-reaching
effect of the ‘going and coming rule’ decisions by defining and
limiting the scope of employment.” Joint Statement of the
Senate and Assembly Labor, Indust. & Professions Comm. to S. 802
and A. 840 at 2 (November 13, 1979). Those amendments defined,
for the first time, when employment begins and ends:
10
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.]
With the 1979 amendments, the “going and coming rule” was
replaced with the premises rule. Kristiansen v. Morgan, 153
N.J. 298, 316 (1997). “The premises rule is based on the notion
that an injury to an employee . . . arises out of and in the
course of employment if the injury takes place on the employer’s
premises.” Ibid. (citation omitted).1
As to what constitutes “the employer’s place of employment”
or “premises,”
[t]he Legislature used the phrase “excluding
areas not under the control of the employer”
. . . because it intended to include areas
controlled by the employer within the
definition. That phrase was intended to
make clear that the premises rule can entail
more than the four walls of an office or
plant.
[Ibid.]
Thus, “[t]he 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, supra, 111 N.J. at 96).
1
This statute also provides two exceptions to the premises rule
which are not applicable to this case, for special missions and
authorized operation of a business vehicle.
11
Under that analysis, this Court has determined that “when
compensability of an accident depends on control of the
employer, that test is satisfied if the employer has the right
of control; it is not necessary to establish that the employer
actually exercised that right.” Brower v. ICT Group, 164 N.J.
367, 372-73 (2000). If the employer exercises control over non-
employer-owned locations, employee injuries occurring there may
be compensable under the Act.
Applying the premises rule in Kristiansen, supra, the Court
held that control exists when the employer owns, maintains or
has exclusive use of the property. 153 N.J. at 317 (citing
Livingstone, supra, 111 N.J. at 104). The Court found that
control was obvious where the accident occurred because the
state owned, operated and maintained the bridge, and the
employee work shift on the bridge had just finished. Ibid.
In Livingstone, supra, a case which preceded Kristiansen,
the Court first addressed the newly created premises rule in a
parking lot context. 111 N.J. at 102-04. Abraham & Straus was
a tenant of the mall and did not own the parking lot. Ibid.
There, the employer, Abraham & Straus issued a directive
instructing its employees to park in the far end of the mall
parking lot to ensure that their customers would be able to use
the closer spaces. Id. at 91. An employee of Abraham & Straus
was struck by another vehicle in the mall-owned parking lot
12
while walking toward the building after she parked her car in
the lot. Id. at 90-91. The Court determined that pursuant to
N.J.S.A. 34:15-7 and -36 the employee’s injuries arose out of
and in the course of employment. Id. at 104. It further
emphasized that control should be dictated by the “common-sense
notion that the term implies simply use by the employer in the
conduct of his business.” Livingstone, supra, 111 N.J. at 103
(citations and internal quotation marks omitted). The Court
reasoned that
by requiring its employees to park in a
distant section of the lot, in order that
customers could enjoy the convenience of
parking adjacent to Abraham & Straus,
appellant caused its employees to be exposed
to an added hazard, on a daily basis, in
order to enhance its business interests. In
our view, it is entirely consistent with the
fundamental purposes of workers’
compensation legislation that appellant
assume responsibility for injuries thus
sustained.
[Id. at 105-06.]
Of chief concern in Livingstone, supra, was the employer-
derived benefit that was created by dictating that employees
park at the far end of the lot. Ibid. The employer’s business
benefit, along with the added hazard employees were forced to
endure by the employer while they walked through the parking
lot, made the injury compensable. Ibid.
13
The Court clarified its holding in Livingstone in a later
case that involved an employee’s injuries sustained while she
walked from her car to her place of employment. Novis v.
Rosenbluth Travel, 138 N.J. 92 (1994). The Court held that the
injuries were not compensable. Id. at 96. Novis was employed
by Rosenbluth Travel as a reservationist. Id. at 93. At her
employer’s request, she traveled to a branch office to work
there temporarily. Ibid. On her third day working at the
location, Novis drove from her hotel to the branch office and
parked in a lot adjacent to the office building, which
accommodated the building’s tenants. Id. at 94. Novis left her
car and proceeded to walk on the sidewalk which led from the
parking lot to the sole entrance of the building. Ibid.
Thereafter, Novis slipped on the sidewalk and sustained
injuries. Ibid.
The Court held that Novis’s injuries were non-compensable
because they did not arise out of and in the course of her
employment. Id. at 93. It noted that in contrast to the facts
in Livingstone, Novis’s employer exercised no control over any
portion of the parking lot adjacent to the office building in
which its branch office was located. Id. at 96. The Court
concluded that the Appellate Division overstated the effect of
the holding in Livingstone when it held that N.J.S.A. 34:15-36
was satisfied by evidence that the parking lot was “used” by the
14
employer in the conduct of its business. This Court held 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.” Ibid.
The Court further held that the facts were insufficient to
establish any exercise of control by the employer over the lot
or the ingress and egress route. Ibid. Thus, the plaintiff’s
accident did not occur within the premises rule; at the time of
the accident, she had not yet commenced her employment. Ibid.
In its analysis in workers’ compensation cases, this Court
has also focused on ingress and egress routes to the place of
employment in other cases. For example, in Ramos v. M & F
Fashions, Inc., 154 N.J. 583 (1998), the Court concluded that an
employer was responsible for an employee’s injuries which
occurred when he fell down an elevator shaft that was regularly
used by the employees in the course of business. There,
employees had only two options to arrive at the employer’s
fourth-floor business: use the elevator or climb a stairwell.
Id. at 587. The Court held that injuries were compensable
because the employer controlled the area. Id. at 593-94.
Similarly, in Brower, supra, relying on the reasoning in
Ramos, supra, the Court found that a stairwell used by employees
to access and depart from the second-floor place of employment
was part of the employer’s premises for purposes of workers’
15
compensation benefits. 164 N.J. at 373-74. The Court
considered that the stairwell’s location in the rear of the
building, with access directly to the employer’s space, could
not be considered a common area, and thus, injuries sustained in
the stairwell were compensable. Ibid.
In a series of similar cases, our Appellate Division has
also grappled with the degree of control or direction an
employer exercised to decide whether benefits are available.
The Appellate Division, in Cannuscio, supra, held that a
woman assaulted on a public sidewalk after picking up her
paycheck was not entitled to compensation from her employer
under the Act. 319 N.J. Super. at 354. The focal point of the
analysis was that 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.
Id. at 353.
In two other cases involving employees injured outside the
parking lot and walking to or from the place of business, the
Appellate Division’s focus was once again on whether the
employer required the employees to enter or exit the employer’s
building by traversing the area where the accident occurred. In
Serrano v. Apple Container, 236 N.J. Super. 216, 220-21 (App.
Div. 1989), certif. denied, 121 N.J. 591 (1990), the Appellate
Division concluded that an employee who had left his employer’s
16
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, an employee who was injured when she fell on
the sidewalk after exiting a metal staircase designated by her
employer for ingress and egress was entitled to workers’
compensation benefits. Ehrlich v. Strawbridge & Clothier, 260
N.J. Super. 89, 92 (App. Div. 1992), certif. denied, 133 N.J.
435 (1993). The staircase led to an exterior sidewalk that the
employee had to travel on in order to reach the parking lot
where her car was located. Id. at 90. The panel reasoned that
“[a]lthough the staircase and adjacent sidewalk leading from the
employee door was not a part of the store premises in a property
sense,” the employer controlled the areas because it instructed
the employees which route to use to enter and exit the
employer’s establishment. Id. at 92.
Likewise, the Appellate Division has focused on the
employer’s control of a parking lot and the employees’ routes
for ingress and egress to the building when determining
compensation. Bradley, supra, 344 N.J. Super. at 579-80.
There, the appellate panel consolidated two separate cases, both
involving injuries to State employees who were injured after
they arrived in the same parking lot. Id. at 572. One employee
17
was injured while crossing the street that led from her work
place to her designated entrance to the garage, and one employee
was injured when he tripped over a steel beam in the garage on
his way to work. Id. at 572. The Appellate Division did not
address the specific situs of the two incidents. It emphasized
that the employer’s control over the parking lot required each
employee to follow a specific ingress and egress route from the
parking lot to the building, even though it was not owned by the
employer, which made the injuries compensable. Id. at 583.
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.
V.
When the Legislature amended the Workers’ Compensation Act
and added the phrase “excluding areas not under the control of
the employer,” N.J.S.A. 34:15-36, it intended to clarify that
employers are liable for more than “just the four walls of an
office or plant.” Kristiansen, supra, 153 N.J. at 316. But the
plain language of the Act reveals that it is not intended to
expand the employer’s liability to publicly owned areas not
under direct control of the employer.
18
We apply the principles of these cases to the appeal here.
The Cattano Garage was not part of the premises of the County,
and the County did not control the garage. The lot was not
owned or maintained by the County. The County only rented a
small portion of the spots in the lot. The County derived no
direct business interest from paying for employees to park in
the Cattano Garage. Most importantly, the accident occurred on
a public street not under the control of the County. In walking
a few blocks from the Cattano Garage to her workplace, Hersh did
not assume any special or additional hazards. Nor did the
County control Hersh’s ingress or egress route to work. The
County provided Hersh with the benefit of off-site but paid-for
parking, but did not dictate which path Hersh had to take to
arrive at her place of employment. Unlike the limited routes to
the places of employment in Brower, Ramos, or Ehrlich, here,
Hersh’s route to work was used by the public, similar to the
route to the building in Novis.
Thus, we hold that in the circumstances of the case, an
employee who is injured on a public street, not controlled by
the employer, is not entitled to compensation under N.J.S.A.
34:15-36. The statute provides exemption for injuries occurring
in “areas not under the control of the employer.”
Even though the “premises rule” is not limited to the four
walls of an office or plant, the concept of “employer control”
19
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. The Act, thus, does not
invite expansive interpretations that would resurrect the “going
and coming” rule.
VI.
Therefore, for these reasons, we hold that Hersh’s injuries
are not compensable and we reverse the judgment of the Appellate
Division.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF (temporarily
assigned) did not participate.
20
SUPREME COURT OF NEW JERSEY
NO. A-59 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
CHERYL HERSH,
Petitioner-Respondent,
v.
COUNTY OF MORRIS,
Respondent-Appellant.
DECIDED April 1, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ------------------------ ---------------------
TOTALS 6
1