Kiara K. Hartwell

The Appellate Division reversed the Workers’ Compensation Judge’s dismissal of a claim based on the conclusion that the accident had not taken place in the course of the petitioner’s employment. Rather, the Appellate Division found the accident had occurred in an area under the employer’s control.

In December 2018, the petitioner tripped in a pothole and fell as she walked to her car in the parking lot after completing her shift. At that time, she had been working for the employer Saker ShopRite (Saker) at the Neptune, New Jersey, location for 25 years. She drove to work and parked in the side parking lot from the beginning of her employment.

The shopping center where this occurred had about eight to ten stores and, per the petitioner, the side parking lot contained a smoking area designated by Saker. Also, the sidewalk next to this area was used to hold shopping carts. The petitioner admitted that Saker told its employees to park by the street, but she testified that she used the side lot due to safety concerns. She once discussed this issue with Jen, an assistant manager, years before, noting that when she told her it was dangerous to park anywhere else, she was never told to move. The petitioner also stated other employees parked in the side lot.

With regard to the lease between Saker and the landlord, Saker paid a maintenance fee, including for the parking lot. However in February 2019, the lease was amended, giving Saker the ability to complete some renovation/restoration work for a sidewalk, signage, and the parking lot. It was explained that rather than deal with obtaining approval and doing the work, the landlord would reimburse Saker for the cost of doing the work and continue to maintain everything. Saker also noted that it did not receive approval to do this work until after the petitioner’s incident. The HR manager for Saker testified, stating new employees were instructed to park in the designated area and advised employees parking in non-designated areas to move their cars.

As Saker did not have control over the parking lot where the petitioner fell and she had knowledge of a designated parking area, which she ignored, the workers’ compensation judge found the case was not compensable and dismissed the claim. The petitioner appealed.

The Appellate Division noted that while substantial deference was given to the factual findings of a judge, it was noted that legal conclusions were not held to the same standard. The Appellate Division revisited the premises rule, first noting that under the Workers’ Compensation Act, “[e]mployment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer ....” N.J.S.A. 34:15-36. And under current case law, the courts looked at the location of the accident and whether the employer had control of the property where the accident occurred.

In applying this analysis, the Appellate Division found the petitioner’s incident occurred in an area controlled by Saker. Specifically, the parking lot was used by customers, employees, and vendors and the petitioner was walking to her car when this incident occurred. Moreover, the Appellate Division noted the fact that the petitioner chose to park in a non-designated area was “inconsequential” as it was motivated by reasonable safety concerns. Also, the fact that the landlord was responsible for maintenance of the parking lots was found irrelevant as Saker’s lease granted Saker’s customers, employees, etc. right to use the parking areas and the lease amendment granted Saker control of the parking lot for repair.

The Appellate Division further explained that “it is well-established in workers’ compensation jurisprudence that when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right.” Therefore, it was concluded that the petitioner sustained a compensable injury and was entitled to workers’ compensation benefits.

 

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