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Defense Digest

New Jersey Workers’ Compensation and Property Leases. Two Greats Tastes That Don’t Taste Great Together

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

by Robert J. Fitzgerald

Key Points:

  • The premises rule limits recovery to injuries which occur on the physical limits of the employer’s premises.
  • The pivotal questions under the the premises rule are (1) where was the situs of the accident and (2) did the employer have control of the property on which the accident occurred?
  • Compensability of an accident depends on the right of control of the employer, it is not necessary to establish that the employer actually exercised that right.

In the recent case of Walker v. Saker Shop Rite, 2021 WL 4058011 (N.J. Super. App. Div. Sept., 7, 2021), the New Jersey Appellate Division revisits compensability for “parking lot” cases under the New Jersey workers’ compensation statute.

On December 11, 2018, the petitioner, a 70-year-old employee of a supermarket, stepped into a pothole as she walked to her car in the parking lot after completing her shift. The Workers’ Compensation Judge found that the accident did not occur in an area under the employer’s control nor in an area designated for employee parking. Therefore, the claim petition was denied.

On appeal, the court went into a detailed analysis of the factual and documentary evidence. It noted that the petitioner had been working for the employer for 31 years. She drove to work and parked in the parking lot abutting a side entrance to the store. The shopping center where this accident occurred contains eight to ten stores, with the supermarket occupying the last leased space on the south end. The side parking lot contained a cabana that the employer put there for the convenience of its employees to smoke cigarettes or drink their coffee. The store used the sidewalk to hold shopping carts. The petitioner testified she had parked in this same area since the store was opened 25 years ago.

At trial, the petitioner acknowledged that the employer previously told its employees to park out by the street. However, she testified that she used the side parking lot due to safety concerns. She recounted that years before the accident, she had engaged in a conversation with an assistant manager, where she explained why she parked in the lot and the assistant manager didn’t say to move. In addition, other employees also parked in the side lot rather than the designated area near the street.

Pursuant to the lease, the store pays a common area maintenance (CAM) fee to the landlord, based on its pro-rata share of the entire shopping center, for maintenance of the parking lot. The lease indicated that the “landlord shall keep and maintain or permit the operator of the premises to keep and maintain the common area in good condition and repair.” In February 2018, the supermarket and the landlord amended the lease, allowing the store to complete reconfiguration work for a sidewalk and parking lot project.

At trial, the store’s human resources manager testified that new employees were directed to park in the “designated employee parking area.” On cross examination, she acknowledged regularly observing store employees parking in non-designated parking areas and asking them to move their cars to the designated area. She also testified that certain employees had the responsibility of retrieving shopping carts from the parking lot and were asked to keep an eye out for any hazards in the parking lot and report such hazards to management.

Based on its detailed analysis of the factual and documentary evidence, the Appellate Division reversed the denial and found the case to be compensable. Specifically, it found substantial evidence that the employer used and exercised control over the parking lot area abutting its supermarket, including the area where the petitioner fell. The Appellate Division also determined that there was no evidence that the employer’s directive to park in the designated employee parking area was for the safety of its employees. Moreover, the court focused on the lease agreement, noting:

We find largely irrelevant that the landlord was responsible for maintaining the parking areas of the shopping center, as Saker’s lease clearly granted Saker, its ‘customers, invitees, licensees . . . and employees’ the right to use the parking areas. While the landlord maintained the parking areas, the lease required Saker to pay ‘additional rent,’ reflecting a proportionate share of CAM charges, which included the cost of maintaining parking areas.

Because the employer Saker used and exercised controlled control over the parking lot here, we conclude petitioner’s injury is compensable under the premises rule. In addition, the February 2018 lease amendment clearly expressed the intention to permit Saker to exercise control of the parking lot and do all things necessary to reconfigure and repave the lot. Saker, in fact, completed the work, albeit after the accident. Nevertheless, the execution of the lease amendment ten months before petitioner’s accident, reflects Saker’s authority to exercise control of the parking lot.

While this case does not necessarily break new ground when addressing compensability for parking lot cases, it does show how a property lease agreement can unknowingly create a substantial workers’ compensation liability. Here, the property lease agreement and its amendments referenced by the court were focused on improving the property location. The lease spelled out the financial responsibilities between the landlord and tenant. Obviously, the petitioner had no interest or even knowledge of the negotiations and agreements as she was not in any way a party to them.

It is doubtful that in crafting the lease and its amendments the parties to the lease ever thought about how their document language would be later scrutinized under the New Jersey workers’ compensation statute. The use of terms in the lease such as a “common area maintenance fee” opened the door to the creation of workers’ compensation liability where none may have existed before. Therefore, employers should be cautioned that, when it comes to real estate and lease issues, they should consider how those documents can effect other areas, such workers’ compensation liability.

*Bob is a shareholder in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6009 or rjfitzgerald@mdwcg.com.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.