Lewis v. Walter Scott & Co., A--248

• Decision Date: 26 May 1958
• Docket Number: No. A--248,A--248
• Citation: 50 N.J.Super. 283,141 A.2d 807
• Parties: William LEWIS, Petitioner-Respondent and Cross-Appellant, v. WALTER SCOTT & CO., Inc., Respondent-Appellant and Cross-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 283

50 N.J.Super. 283

141 A.2d 807

William LEWIS, Petitioner-Respondent and Cross-Appellant, v. WALTER SCOTT & CO., Inc., Respondent-Appellant and Cross-Respondent.

No. A--248.

Superior Court of New Jersey Appellate Division.

Argued May 19, 1958.

Decided May 26, 1958.

Isidor Kalisch, Newark, argued the cause for respondent-appellant and cross-respondent.

Louis C. Jacobson, Newark, argued the cause for petitioner-respondent and cross-appellant (Bassin & Bassin, Elizabeth, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

In this workmen's compensation case the employer appeals from the affirmance in the Union County Court of an award in favor of petitioner, contending that as a matter of law the accident did not arise out of and in the course of the employment. Petitioner cross-appeals, asserting the inadequacy of the award of counsel fees for services in the County Court.

The matter was decided on the basis of stipulated facts. Petitioner was injured when he slipped and fell on an icy sidewalk while walking on his way to work from the employees' parking lot to the employees' entrance of the building in which he worked. He had come to the parking lot at 6:45 A.M. in a car in which he rode to work as a 'car pool' member. The work day began at 7:00 A.M. The only means of access from lot to building was along the public sidewalk on which the accident happened.

The issue here is narrow. Respondent concedes that had petitioner sustained his injury in the parking lot the accident would be compensable, facilities provided by the employer for such a mutually beneficial purpose being regarded as a part of the employment premises. Buerkle v. United Parcel Service, 26 N.J.Super. 404, 98 A.2d 327 (App.Div.1953); cf. McCrae v. Eastern Aircraft, 137 N.J.L. 244, 59 A.2d 376 (Sup.Ct.1948). But it argues that while he was on the public sidewalk he was out of the course of the employment.

An accident arises 'in the course of' employment when it occurs within the period of the employment and at a place where the employee may reasonably be. It arises 'out of' the employment when the risk of such an occurrence is reasonably incident to the employment. Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 47, 178 A. 181 (Sup.Ct.1935), affirmed per curiam 116 N.J.L. 92, 182 A. 873 (E. & A. 1936); Crotty v. Driver Harris Co., 49 N.J.Super. 60, 66, 139 A.2d 126 (App.Div.1958), certification denied 27 N.J. 75, 141 A.2d 318 (1958).

Udner the premise of the correctness of the cases holding that an accident in a parking lot is compensable, the period of petitioner's employment on the day in question must be regarded as having begun when he arrived at the lot. Absent any deviation therefrom there is no rational justification for any hypothesis that the period of the employment was interrupted during the time when petitioner was proceeding by the only available route from the lot to the building in which his duties were to be performed. While on the sidewalk during that passage he was at a place where he might 'reasonably be,' in relation to the employment. In principle, therefore, the accident occurred in the course of the employment.

There is, moreover, no conceptual difficulty in finding that the injury arose out of the employment. If the time and place of the accident were in the course of the employment, as we have held they were, an injury due to a defective or seasonably dangerous condition of the sidewalk was clearly a risk reasonably incidental to traversal thereof, and, therefore, to the employment itself as requiring such traversal from an employer-maintained parking facility to the employment building proper.

It is contended by respondent that since the accident took place on a public sidewalk over which respondent exercised no control and as a result of a hazard not connected with the employment, the occurrence is not sufficiently work-connected to be regarded as arising out of the employment. Analytically, it is obvious that control of the Locus of injury is irrelevant. For example, a salesman driving a car on a public street while on his employer's business, who is injured in a...