The NJ Supreme Court declared the nature of the employer's control determines compensability in an off-premises parking lot claim. The Court ruled that the NJ 1979 Legislative amendments mandate that the "coming and going" rule bars such a workers' compensation claim when an employee is injured on a public street while walking to and from a public parking lot.
The Court held that even though the employer provided a parking pass to the employee to park in the public lot, that since the employer did not own, maintain or exercise control over the lot nor the route that the employee must take in commuting to the employer's premises, the employee could not pursue a workers' compensation claim.
The element of "control" pervades many issues in workers' compensation including "employment status. NJ has "The Right to Control Test" that is utilized in determining the employment status of the employee.. This is been a major factor in misclassification of workers and the eligibility of workers' compensation cover.
Hersh v. County of Morris A-59 NJ Supreme Court, Decided April 1, 2014.
Note: This cases and others will be the subject the NJ Hot Topics in Workers' Compensation Law Seminar on June 18, 2014. Both Lewis Stein, Esq. and John R. Tort, Jr., Esq., who were the lead counsel representing the parties involved in the litigation, will participating in the upcoming seminar.
Click here to register today.
Showing posts with label parking lot. Show all posts
Showing posts with label parking lot. Show all posts
Tuesday, April 1, 2014
Tuesday, January 21, 2014
Premises Rule Extends Compensability to Leaving a Parking lot
A NJ Appellate Court ruled that an employee who is injured in a motor vehicle accident that occurs while leaving an employer's parking lot is entitled to workers' compensation benefits.
"The circumstances of the present case plainly reveal that
Burdette never fully left her employer's premises. Although her
vehicle was in the midst of navigating a left turn onto a public
thoroughfare, the exact spot where Burdette suffered injuries
was neither remote from, nor unconnected to, her work premises.
We reject Harrah's ultra-rigid approach that focuses only on the
colliding vehicles' point of impact and the front seat location
of Burdette in her Explorer. Instead, applying common sense and
the policies inherent in the Act, we subscribe to the judge of
compensation's viewpoint that the injuries suffered here were a
result of Burdette's firm attachment to her place of employment,
albeit while on her way home. The fact that the public also
used the northwest travel lanes of MGM Mirage Boulevard does not
change the result. The inextricable connection between Harrah's
premises and the collision would render a parting of the
accidental injuries from compensability an unjust result.
"The judge of compensation's reliance upon Livingstone to
support his holding that parking lots owned, maintained, or
provided by employers were appropriately considered part of the
employer's premises is unassailable because the Court
acknowledged the Legislature's intent in framing the premises
rule's contours. Livingstone, supra, 111 N.J. at 102. Harrah's
contention that Livingstone sought to limit 'judicially-created
exceptions to the general noncompensability of off-premises
accidents . . . .' is correct. Livingstone, supra, 111 N.J. at
"The circumstances of the present case plainly reveal that
Burdette never fully left her employer's premises. Although her
vehicle was in the midst of navigating a left turn onto a public
thoroughfare, the exact spot where Burdette suffered injuries
was neither remote from, nor unconnected to, her work premises.
We reject Harrah's ultra-rigid approach that focuses only on the
colliding vehicles' point of impact and the front seat location
of Burdette in her Explorer. Instead, applying common sense and
the policies inherent in the Act, we subscribe to the judge of
compensation's viewpoint that the injuries suffered here were a
result of Burdette's firm attachment to her place of employment,
albeit while on her way home. The fact that the public also
used the northwest travel lanes of MGM Mirage Boulevard does not
change the result. The inextricable connection between Harrah's
premises and the collision would render a parting of the
accidental injuries from compensability an unjust result.
"The judge of compensation's reliance upon Livingstone to
support his holding that parking lots owned, maintained, or
provided by employers were appropriately considered part of the
employer's premises is unassailable because the Court
acknowledged the Legislature's intent in framing the premises
rule's contours. Livingstone, supra, 111 N.J. at 102. Harrah's
contention that Livingstone sought to limit 'judicially-created
exceptions to the general noncompensability of off-premises
accidents . . . .' is correct. Livingstone, supra, 111 N.J. at
103. However, this argument is misplaced because the judge of
compensation clearly relied on the case for its general
proposition that parking lots either owned, maintained, or
operated by employers are properly considered part of the
employer's premises.
CARLA BURDETTE v. HARRAH'S ATLANTIC CITY,
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4797-12T1 Decided January 17, 2013.
Related articles
NJ Supreme Court Hears Premises Rule Case (workers-compensation.blogspot.com)
Spoliation of Evidence: Sanctions Reversed in Employer Fraud Case (workers-compensation.blogspot.com)
Why Injured Workers (and their lawyers) Should Care About Unemployment Compensation Changes (workers-compensation.blogspot.com)
Save the date: June 18, 2014..... Hot Topics in Workers' Compensation Law (workers-compensation.blogspot.com)
New York State is committed to improving outdated workers' compensation system (workers-compensation.blogspot.com)
NJ COLA Bill Passed by Senate (workers-compensation.blogspot.com)
compensation clearly relied on the case for its general
proposition that parking lots either owned, maintained, or
operated by employers are properly considered part of the
employer's premises.
CARLA BURDETTE v. HARRAH'S ATLANTIC CITY,
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4797-12T1 Decided January 17, 2013.
Related articles
NJ Supreme Court Hears Premises Rule Case (workers-compensation.blogspot.com)
Spoliation of Evidence: Sanctions Reversed in Employer Fraud Case (workers-compensation.blogspot.com)
Why Injured Workers (and their lawyers) Should Care About Unemployment Compensation Changes (workers-compensation.blogspot.com)
Save the date: June 18, 2014..... Hot Topics in Workers' Compensation Law (workers-compensation.blogspot.com)
New York State is committed to improving outdated workers' compensation system (workers-compensation.blogspot.com)
NJ COLA Bill Passed by Senate (workers-compensation.blogspot.com)
Monday, August 12, 2013
Pending NJ Supreme Court Workers' Compensation Cases
The following is a list of Workers' Compensation cases pending before the NJ Supreme Court as of August 12, 2013.
Off-Premises: Parking Lot Case
A-59-12 Cheryl Hersh v. County of Morris (071433)
Did this employee’s injuries, which occurred when she was struck by a car while walking across a public street to her place of employment from a privately owned garage in which she parked her car at her employer’s expense, arise out of the course of her employment entitling her to benefits under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142?
Certification granted: 5/9/13
Posted: 5/13/13
Argued:
Decided:
Conflict of Laws: Preemption
A-130-11 Jersey Central Power & Light Co. v. Lempke (070649)
Was defendant's workers' compensation proceeding in New Jersey a "first-filed litigation" that preempts her Pennsylvania lawsuit against multiple parties over the work-related accident that caused her husband's death?
Certification granted 7/12/12
Posted: 7/13/12
Argued:
Decided:
Cardiovascular: Causal Relationship
A-71-11 James P. Renner v. AT&T (068744)
Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?
Certification granted: 2/14/12
Posted: 2/14/12
Decided:
Saturday, March 23, 2013
The Going and Coming Rule: Parking Lot Injury Held Not Compensable
A NJ appellate court ruled that an employee who was severely injured in a parking lot as a result of a slip and fall was not entitled to workers’ compensation benefits since the injury occurred “off the premises” and the employer did not control the employee’s parking.
The Court also ruled, that even though a separate corporation that owned the parking lot, the corporate veil could not be pierced in absence of the proof of fraud by the employer. The employer merely rented the store premises and not the parking lot.
Cottone v Medical Supply Corp. and NJ Manufacturers (Intervener)
2013 WL 1136114 (N.J.Super.A.D.) Decided March 20, 2013
Wednesday, July 25, 2012
Parking Constitutes Arrival at Work
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| (Photo credit: Wikipedia) |
"Hence, we agree with the judge that when petitioner parked her car in the assigned garage, she was not coming to work, she had arrived there."
CHERYL HERSH, Petitioner–Respondent,
COUNTY OF MORRIS, Respondent–Appellant,
DOCKET NO. A–1442–10T4
2012 WL 3000329 (N.J.Super.A.D. 2012) Decided 7/24/12.
Monday, January 9, 2012
Parking Lot Injuries Are Compensable
Injuries occurring in parking lots are in many instances compensable. A lot depends on who controls parking in the lot and/or whether or not the employer directs the employee to park in a specific location.
The legal theory that is the basis for determining who is responsible is whether the injury occurs in the course of the employment and arises out of the employment. When the employer owns the property and the employee becomes injured while going to and from his or her vehicle, the accident is usually deemed to have occurred at work and is compensable.
The situation becomes more complicated when the employee is involved in an accident in a parking lot not owned or controlled by the employer. In those instances the courts traditionally look to whether the employer directed where the employee should park or how the employee should park his or her vehicle.
Because the courts have held that the employer's parking lot is part of the employment premises and an employee entering or using the lot is in the course of employment, an employee injured when struck by an automobile driven by a co-employee was not able to sue the co-employee for negligence; the sole remedy was in the workers' compensation arena. Konitch v. Hartung, 81 N.J.Super. 376, 195 A.2d 649 (App.Div.1963), certif. denied 41 N.J. 389, 197 A.2d 15 (1964).
If the employee directs that the employee utilize a specific parking lot or a common area in a commonly owned parking lot, then the injures that occur in the parking are considered arising out of and in the course of employment and are considered compensable.
.....For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
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