Hersh v. Cnty. of Morris

• Decision Date: 01 April 2014
• Citation: 217 N.J. 236,86 A.3d 140
• Parties: Cheryl HERSH, Petitioner–Respondent, v. COUNTY OF MORRIS, Respondent–Appellant.
• Court: New Jersey Supreme Court

217 N.J. 236

86 A.3d 140

Cheryl HERSH, Petitioner–Respondent,

v.COUNTY OF MORRIS, Respondent–Appellant.

Supreme Court of New Jersey.

Argued Nov. 19, 2013.

Decided April 1, 2014.

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; Tort, Christopher B. Leitner and Nicholas C. Caruso, on the briefs).

Lewis Stein, Succasunna, 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.

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 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 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 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 & Straus, Inc., 111 N.J. 89, 543 A.2d 45 (1988), 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, 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, 782 A.2d 978 (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 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, 65 A.3d 262 (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 compensablebecause 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, 725 A.2d 135 (App.Div.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...