Barone v. Harra

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: PER CURIAM; Clifford
• Citation: 77 N.J. 276,390 A.2d 571
• Decision Date: 06 July 1978
• Parties: Linda L. BARONE and Robert J. Barone, her husband, Plaintiffs-Appellants, v. Janet L. HARRA, Defendant-Respondent, and Gerard M. Ross and Patricia Ross, Defendants.

Page 276

77 N.J. 276 390 A.2d 571 Linda L. BARONE and Robert J. Barone, her husband,
Plaintiffs-Appellants,
v.
Janet L. HARRA, Defendant-Respondent,
and
Gerard M. Ross and Patricia Ross, Defendants. Supreme Court of New Jersey. Argued April 10, 1978.
Decided July 6, 1978.

Page 277

Lewis Stein, Succasunna, for plaintiffs-appellants (Nusbaum, Stein & Goldstein, Succasunna, attorneys).

[390 A.2d 572] James J. Plick, Rockaway, for defendant-respondent (Edward Krowen, Rockaway, attorney).

PER CURIAM.

Should the rule of Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N.J. 99, 305 A.2d 65 (1973), which established compensability under the Worker's Compensation Act for injuries occurring during a lunch break, defeat an employee's automobile accident negligence action, instituted more than two years before Hornyak was decided, against a fellow employee? The trial court answered this question affirmatively. The Appellate Division affirmed in an unpublished opinion, and we granted plaintiff's petition for certification. 73 N.J. 41, 372 A.2d 307 (1976). We reverse.

The salient facts are undisputed. Plaintiff Linda L. Barone and defendant Janet L. Harra, both employees of McWilliams-Forge Company at its plant on Franklin Avenue, Denville, New Jersey, left work at noontime on May 25, 1970 to have lunch at the home of plaintiff's mother. They traveled in a motor vehicle owned and operated by defendant Harra. Upon leaving the plant their car collided with one driven by Gerard M. Ross and owned by Patricia Ross. The plaintiff suffered serious injuries.

Page 278

On September 4, 1970, plaintiffs Linda L. Barone and her husband Robert J. Barone (hereinafter collectively referred to as plaintiff) filed a complaint against Janet L. Harra, Gerard M. Ross and Patricia Ross, alleging generally that the accident was due to the negligence of the defendants jointly or severally. Harra's answer denied negligence and set up a separate defense that plaintiff's exclusive remedy was under the Worker's Compensation Act. She also sought contribution from the Ross codefendants. The Ross' answer also denied negligence and likewise sought contribution from Harra.

Upon a showing that Gerard M. Ross was in the armed forces, the matter was placed on the military list in January 1971. In October 1974 defendant Harra moved for summary judgment on the ground that plaintiff's claims were barred by N.J.S.A. 34:15-8. That statute precludes tort actions against fellow employees for compensable injuries occurring while both persons are in the same employ, except for intentional wrongs. The trial court granted the motion, finding compensability was warranted under the principle enunciated by this Court in Hornyak on May 21, 1973. The trial court did not address plaintiff's contention that the Hornyak rule was inapplicable because it had been announced more than two years after the accident and that plaintiff had therefore been foreclosed from filing a petition for worker's compensation, N.J.S.A. 34:15-41 and -51.

The Appellate Division also concluded that Hornyak controlled. Additionally, it perceived no "existing authority conferring power on this court to extend the principle of retroactivity to the present situation so as to bar the Workmen's Compensation defense and permit the claim to proceed."

In Hornyak we held that an employee, injured in an automobile accident while returning to his place of employment from a nearby diner where he had gone to eat during a lunch break, suffered a compensable accident which arose out of and in the course of his employment. We reasoned that "the

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plaintiff's departure for his lunch was no more an abandonment of his employment than were the departures in the coffee break cases," 63 N.J. at 106, 305 A.2d at 69, and that "(b)ut for his employment * * * he would not have been subjected to the particular highway risks from which the accident on his return trip ensued." Id. at 108, 305 A.2d at 70. The Hornyak rule was elaborated in Wyatt v. Metropolitan Maintenance Co., 74 N.J. 167, 376 A.2d 1222 (1977). There Justice Pashman commented:

* * * (o)ur decision (in Hornyak ) was grounded on the more significant fact that an employee who interrupts his work and leaves his place of employment for lunch knows that he has not completed his workday and that he will be returning as soon as his lunch is over. His time is really not his own. (Id. at 171, 376 A.2d at 1223.)

[390 A.2d 573] Both the trial court and the Appellate Division correctly concluded that plaintiff's injuries would be compensable if Hornyak Applied. Plaintiff Linda Barone and defendant Harra, who had been working at the McWilliams-Forge Company, were taking their lunch recess period at the time of the accident. At the end of that...