Cannuscio v. Claridge Hotel

725 A.2d 135, 319 N.J. Super. 342
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 15, 1999
StatusPublished
Cited by70 cases

This text of 725 A.2d 135 (Cannuscio v. Claridge Hotel) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cannuscio v. Claridge Hotel, 725 A.2d 135, 319 N.J. Super. 342 (N.J. Ct. App. 1999).

Opinion

725 A.2d 135 (1999)
319 N.J. Super. 342

Luigia G. CANNUSCIO, Petitioner-Appellant,
v.
CLARIDGE HOTEL AND CASINO, Respondent-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued February 18, 1999.
Decided March 15, 1999.

*136 Carmine J. Taglialatella for petitioner-appellant (Press & Long, attorneys; Mr. Taglialatella, on the brief).

Francis T. Giuliano, Ramsey, for defendant-respondent.

Before Judges KING, NEWMAN and FALL.

The opinion of the court was delivered by KING, P.J.A.D.

I

On July 24, 1995 Luigia G. Cannuscio (petitioner) filed a workers' compensation claim petition in the Division of Workers' Compensation in Atlantic City. Petitioner alleged that she fractured her left hip and sustained other injuries as a result of an accident which occurred on May 1, 1995. She was assaulted on a public sidewalk after picking up her paycheck at her employer's administration building after her shift. The judge found that the incident did not arise out of or in the course of her employment.

On this appeal petitioner raises two claims of error:

I. WHETHER THERE WAS SUFFICIENT CREDIBLE EVIDENCE ON THE RECORD TO SUPPORT THE TRIAL JUDGE'S FACTUAL CONCLUSION *137 THAT PETITIONER-APPELLANT CANNUSCIO WAS NOT ASSAULTED ON DEFENDANT-RESPONDENT CLARIDGE'S PREMISES.
II. WHETHER PETITIONER'S INJURIES OCCURRED ON HER EMPLOYER'S PREMISES AND AROSE OUT OF OR IN THE COURSE OF HER EMPLOYMENT.

We find no error and affirm.

II

Petitioner had been employed as a cook for eleven years by the Claridge Hotel and Casino in Atlantic City. On Monday, May 1, 1995 she worked a shift from 7 a.m. to 3 p.m. After finishing her shift she changed her clothes, "clocked out" and at about 3:15 p.m. left the Claridge Hotel and Casino building and proceeded north across Indiana Avenue to Claridge's Administrative Office Building to pick up her paycheck. She routinely picked up her pay check at the Administrative Office Building on Mondays after her shift, although she had the option of picking up her check on Sundays or having it "direct-deposited" into her bank account. She was not permitted to pick up her check during her shift.

After picking up her paycheck, petitioner left the Administrative Office Building and walked west toward Pacific Avenue. While she was walking, several young men ran from behind her, grabbed her by the sleeve, knocked her to the ground, and attempted to take her pocketbook. The assailants did not succeed in stealing petitioner's pocketbook. The distance between the point at which she was first assaulted and where she fell to the ground was a few feet.

After she was knocked to the ground, petitioner's assailants ran away and she yelled for help. She did not move on her own but after a few minutes a passerby and an employee of Claridge came to help, placing her in a chair on the sidewalk.

At about 3:40 p.m. Officer Tom Sparks of the Atlantic City Police Department was dispatched to the scene. Officer Sparks found petitioner sitting in a chair on the sidewalk and asked if she wanted to go to the hospital. She said she did and in about fifteen minutes an ambulance came to take her to the hospital.

At trial John Heim testified that he was employed by Claridge as a supervising EMT on May 1, 1995. He arrived on the scene with Wendy Morris, another Claridge EMT, at about 3:35 p.m. and found petitioner sitting in a chair about forty feet east of Pacific Avenue. Claridge's security supervisor, William Hurley, was at the scene along with Officer Sparks. Heim also testified that he conducted a patient assessment and petitioner complained of pain in her right hip.

Kelly McDermott, who works in the payroll department of Claridge, testified that employees have the option of receiving a "live" paycheck or a deposit of wages through a "direct deposit." According to McDermott, the direct-deposit option had been available for ten years; all employees are eligible for this option and are told so before commencement of work.

In a written opinion Judge Dailey found that petitioner was assaulted by two juveniles on the public sidewalk in front of the Mid-Town Motel on Indiana Avenue, west of the location of Claridge's Administrative Office Building. Judge Dailey found that petitioner was not on Claridge's premises, or in front of it, or at a location under its ownership or control when the criminal assault occurred. The judge stated that petitioner clearly had "clocked out" and was not performing any work duties when assaulted. She concluded that the incident did not arise out of or in the course of petitioner's employment.

III

When error in factfinding of a judge or administrative agency is alleged, the scope of appellate review is limited. We will decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record considering the proofs as a whole. We give "due regard" to the ability of the factfinder to judge credibility. Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965); De Angelo v. Alsan Masons, Inc., 122 *138 N.J.Super. 88, 89-90, 299 A.2d 90 (App.Div.), aff'd o.b., 62 N.J. 581, 303 A.2d 883 (1973). An appellate court has the power to review the factual determinations of a trial judge for any cause, criminal or civil, involving issues of fact not determined by the verdict of a jury and to make new or amended findings, but great deference must be given to the determinations of the trial judge. State v. Johnson, 42 N.J. 146, 158-59, 199 A.2d 809 (1964). Appellate review does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered at trial. Id. at 161, 199 A.2d 809. Deference must be given to those findings of the trial judge which are substantially influenced by her opportunity to hear and see witnesses and to have the feel of the case. Ibid. "When the reviewing court is satisfied that the findings meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Id. at 162, 199 A.2d 809.

Petitioner argues Judge Dailey's conclusion that she was assaulted in front of the Mid-Town Motel and not in front of Claridge's administrative office premises is not supported by credible evidence on the record. Petitioner also remarks that Claridge's witness, John Heim, arrived at the scene of the incident about twenty minutes after the assault. As a result, petitioner argues that the judge could not reasonably conclude, based on the record, that petitioner was placed in the chair on the sidewalk at the point where the assault occurred, in front of the Mid-Town Motel.

As stated in her written opinion, Judge Dailey found that petitioner was assaulted by juveniles on the public sidewalk in front of the Mid-Town Motel, a property up the street to the west from Claridge's Administrative Office Building where she picked up her paycheck. The judge based her decision on where petitioner was assisted to a chair after the incident occurred.

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Bluebook (online)
725 A.2d 135, 319 N.J. Super. 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannuscio-v-claridge-hotel-njsuperctappdiv-1999.