Livingstone v. Abraham & Straus, Inc.

• Decision Date: 09 April 1987
• Citation: 216 N.J.Super. 685,524 A.2d 876
• Parties: Marlene LIVINGSTONE, Petitioner-Appellant, v. ABRAHAM & STRAUS, INC., Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 685

216 N.J.Super. 685

524 A.2d 876

Marlene LIVINGSTONE, Petitioner-Appellant, v. ABRAHAM & STRAUS, INC., Respondent-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 3, 1987.

Decided April 9, 1987.

Rothstein, Mandell, Strohm & Gelson, for petitioner-appellant (John F. Gelson, of counsel and Scott J. Basen, on the brief).

Robert G. Bressler, for respondent-respondent (David L. Schlosser, of counsel; David Schlosser and Robert Bressler, on the brief).

Before Judges MICHELS, O'BRIEN and LANDAU.

The majority opinion of the court was delivered by

LANDAU, J.S.C. (temporarily assigned).

Petitioner-appellant Marlene Livingstone appeals from a judgment of the Division of Workers' Compensation which dismissed her petition for benefits for allegedly work-connected injuries. We conclude that the judge of compensation erred in dismissing the petition, and accordingly reverse and remand.

FACTS

After parking her car in a distant section of the Monmouth Mall parking lot in Eatontown, Livingstone was struck by a co-employee's car as she walked across the lot to her job at the Abraham & Straus Department Store (A & S) operated by respondent.

A & S is a tenant at the Monmouth Mall, which houses three other major department stores and numerous smaller shops. It does not maintain the parking lot nor does it exercise any conventional supervision over any portion of the lot, all of which is available for the common use of tenants and their patrons. No section of the lot is singled out for use by A & S employees to the exclusion of patrons or employees of other stores. Nonetheless, petitioner's uncontradicted proofs showed that she and her co-employees were instructed to park only in the outlying reaches of the lot in order to make more convenient parking spots available for A & S customers. A store guard monitored the designated employee entrance and actively insured compliance with this rule.

THE LAW

The compensation division judge held that Livingstone's accident did not arise out of and in the course of employment because of her failure to sustain the jurisdictional burden of proof that A & S controlled the parking lot. Inasmuch as Livingstone, "at the time of her injury, was in an area common to the public ..." the compensation judge determined, "... that since the respondent did not control the parking lot and was only a tenant at the Monmouth Mall, that the petitioner has failed to sustain the burden of proof as to control of the parking lot" required by N.J.S.A. 34:15-36. ¹ The petition was accordingly dismissed at the conclusion of the compensability phase.

Livingstone here presents the following arguments:

POINT I--WHERE AN EMPLOYER IS A TENANT IN A SHOPPING MALL THE PARKING LOT IS UNDER THE CONTROL OF THE EMPLOYER RENDERING COMPENSABLE AN INJURY SUFFERED BY AN EMPLOYEE THEREIN PURSUANT TO THE WORKERS' COMPENSATION ACT.

A. The Workers' Compensation Act does not require exclusive control of an area in order to render an injury occurring therein as compensable.

B. The premises rule does not deny compensation for an injury, such as this, which occurs when the employee attempts to enter the employer's premises and is thereby subjected to an unusual risk created by the employer.

POINT II--RESPONDENT HAS PRESENTED NO TESTIMONY TO SUPPORT ITS CONTENTION THAT RESPONDENT DID NOT EXERCISE CONTROL OVER THE PARKING LOT ON JULY 14, 1981.

In support of her arguments, Livingstone urges that we consider Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7, 264 A.2d 204 (1970) and Konitch v. Hartung, 81 N.J.Super. 376, 195 A.2d 649 (App.Div.1963), certif. den. 41 N.J. 389, 197 A.2d 15 (1964), cases which held, prior to major statutory revisions in 1979, that parking lots were deemed part of the employer's premises. Livingstone cites, too, our recent decision in Cressey v. Campus Chefs, Div. of CVI Services, Inc., 204 N.J.Super. 337, 343, 498 A.2d 1274 (App.Div.1985) holding that the phrase "excluding areas not under the control of the employer" as used in N.J.S.A. 34:15-36 "does not relate to concepts of exclusive control or duties of maintenance as viewed by the compensation judge but, rather, implies only use by the employer in the conduct of his business." In addition she cites several out-of-state cases involving shopping center parking lots in which courts have held compensable injuries by store employees which occurred in the parking lots, where the lots were owned and managed by others, but served the common purpose of all of the shopping center tenants. See, e.g., Frishkorn v. Flowers, 26 Ohio App.2d 165, 270 N.E.2d 366 (Ct.App.1971); Merrill v. J.C. Penney, 256 N.W.2d 518 (Minn.1977); Berry v. B. Gertz, Inc., 21 A.D.2d 708, 249 N.Y.S.2d 285 (N.Y.App.Div.1964); but see, Glassco Belk-Tyler Co. of Goldsboro, 316 S.E.2d 334 (App.1984).

The "going and coming rule," also referred to as the "premises" rule, has long constituted a bar to compensation for injuries which occur going to or coming from work. See 1 Larson, The Law Of Workmen's Compensation, § 15.00, et seq. (1984). However, until legislative amendments were made to N.J.S.A. 34:15-36 (L.1979, c. 283, § 12) exceptions created by the courts had "swallowed up the rule." See Hammond, 56 N.J. at 12, 264 A.2d 204. Prior to the amendments, New Jersey appears to have adhered to the majority view throughout the country which holds that parking lots, including shopping center parking lots, would be considered part of the employer's premises if used by employees of shopkeepers in those centers. See, e.g., Larson, supra, § 15.41 at 4-87, et. seq.

Without doubt, the 1979 amendments to N.J.S.A. 34:15-36 were not designed to give employers relief from the "going and coming rule" but rather from the numerous exceptions which have evolved to that rule. Ward v. Davidowitz, 191 N.J.Super. 518, 522, 468 A.2d 250 (App.Div.1983). Indeed, as we observed in Ward v. Davidowitz, id. at 523, 468 A.2d 250 the Chief Judge of Compensation commented in 1981 that the language of the amendments was designed "to remove from compensability certain cases heretofore held compensable where special hazards existed en route to the employer's premises, ..." Napier, "Impact of the Reform Act of 1980," 96 N.J.Lawyer 17 (August 1981). However, as we observed in Nemchick v. Thatcher Glass Mfg. Co., 203 N.J.Super. 137, 143, 495 A.2d 1372 (App.Div.1985), "[w]hether an employee is deemed within the course of employment must be resolved on a case-by-case basis." In Nemchick, the court recognized the significance of an enhanced exposure to hazard which might arise as a result of complying with off-premises duties, although not actually occurring in the course of those duties. Ibid. Thus, while we have been careful to confine strictly any apparent exceptions to the "going and coming rule," in accordance with the clear legislative mandate of the 1979 amendments, see, e.g. Ohio Casualty Group v. Aetna Casualty, 213 N.J.Super. 283, 517 A.2d 166 (App.Div.1986), Mangigian v. Franz Warner Assoc., Inc., 205 N.J.Super. 422, 501 A.2d 179 (App.Div.1985), we have not hesitated to utilize the case-by-case analysis approach set forth in Nemchick, 203 N.J.Super. at 143, 495 A.2d 1372 where the statutory purpose is not perverted. Such analysis cannot ignore the continuing mandate of the statute that, as remedial legislation, it shall be construed liberally to effectuate its purpose. See Briggs v. American Biltrite, 74 N.J. 185, 188, 376 A.2d 1231 (1977).

The compensation judge and our dissenting colleague have relied on the absence of employer "control" of the parking lots in a property sense. Under this view of N.J.S.A. 34:15-36, if the employer does not exclusively maintain or exercise other exclusive mechanical incidents of control over the parking area, and if all users of the parking lot, including its patrons, are subject to the same risks of use, the "going and coming rule" would preclude a worker's compensation award here. But, cf. Cressey, 204 N.J.Super. at 343, 498 A.2d 1274.

We think that the inquiry into control, however, cannot rationally end with mere considerations of property law responsibility in those limited situations where, as here, an employer actively extends, or continues, his control over the person of the employee beyond the entrance door. Indeed, if degree of "control" over the property of the parking lot is a meaningful aid in resolving whether an injury has arisen out of and in the course of employment, it must be because such control is deemed to affect indirectly the employee, not because it is an inherent incident of compensability. We share the view expressed by the dissent that the 1979 amendments were intended, and should be construed, to strictly limit awards for going and coming injuries. Reliance upon the absence of exclusive property control, however, misses the mark, unless the question of control of the employee is also addressed.

Here, as the uncontroverted facts show, A & S employees do not occupy status congruent with the patrons and other users of the common parking areas. They are prohibited by A & S, for understandable commercial reasons, from parking in those areas of the lot affording most convenient access to the store. The lot has no pedestrian walkways. Employees must make their way across the lot to and from the perimeter areas in day and night, whatever the condition of season, traffic or weather. Thus, we do not think that it can fairly be said that the employee is subjected only to the same risks as other users of the lot. To the contrary, it would seem logical that the hazard of traversing an expansive parking area is a function of the distance between the parking spot and the employer's store. Even were this not so, Livingstone's ordinary off-premises freedom of action has clearly been controlled here by A & S for the benefit of its store and its patrons. This control necessarily manifests itself in the parking lot and...