Levine v. Haddon Hall Hotel

332 A.2d 193, 66 N.J. 415, 1975 N.J. LEXIS 219

• Court: Supreme Court of New Jersey
• Decided: February 5, 1975
• Status: Published

Opinions

The opinion of the Court was delivered by

Pashman, J.

This workmen’s compensation ease calls upon us once again to decide whether an accident occurring prior to an employee’s arrival on his employer’s premises is within one of the exceptions to the “going and coming” rule. Plaintiff Nathan Levine was a part-time employee in the timekeeping department of respondent Haddon Hall Hotel. Mr. Levine was 69 years of age at the time of the accident giving rise to the claim herein. Although he walked with a cane outdoors, it was not necessary to aid his ambulation when indoors. He was usually at work some time between 8 and 9 o’clock in the morning, depending upon the work schedule. While plaintiff’s disability did not require that he travel to and from work by cab, he preferred it to public transit as a means of preserving his strength.

On the morning of July 4, 1970, Mr. Levine had difficulty obtaining a cab.¹ After waiting for half an hour, his concern about not getting to work on time prompted him to call for permission to take a jitney (mini-buses which run along Pacific Avenue in Atlantic City). He alighted at the corner of North Carolina and Pacific Avenues, the intersection closest to the hotel and at the nearest point to the hotel to which he could take any public transportation. After checking to see if the traffic light was in his favor, plaintiff attempted to cross the street. He was struck by a laundry truck and received injuries which are the subject of this claim.

The main issue before the Judge of Compensation was whether the facts were an exception to the “going and coming” rule. On appeal from a determination in favor of plaintiff, the Appellate Division reversed in an unpublished opinion, holding that the facts did not fall within any of the recognized exceptions to the rule. Petition for certification was granted. 64 N. J. 325 (1974). We find the case of Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970), to be substantially controlling; DiNardo v. Newark Board of Education, 118 N. J. Super. 536, 539 (App. Div. 1972) is further supportive.

There is no doubt that had plaintiff driven to work on an ordinary workday, parked in a hotel lot one or two blocks away² and been injured in the lot or crossing an intersection while walking to the employer’s premises, he would have come within the recognized exception to the “going and coming” rule. Hammond, supra; Lewis v. Walter Scott & Co., Inc., 50 N. J. Super. 283 (App. Div. 1958); 1 Larson, Workmen’s Compensation Law, § 15.14. See Zabriskie v. Erie R. R. Co., 86 N. J. L. 266 (E. & A. 1914); Rice v. Pharmaceuticals, Inc., 65 N. J. Super. 579 (App. Div. 1961); Buerkle v. United Parcel Service, 26 N. J. Super. 404 (App. Div. 1953). Since it was the Fourth of July, however, employees who normally drove to work could not use the parking lots usually reserved for them. This was the customary practice during the busy season and holidays; hotel guests utilized employee parking areas. The absence, on the day of Mr. Levine’s accident, of employee use of employer-provided parking facilities distinguishes this case from Hammond and DiNardo. We feel that this is a distinction without difference.

In Hammond, supra, an employee was injured while walking to the point where she usually waited for a ride from a co-employee who parked in the company lot. As is true of plaintiff herein, Mrs. Hammond had difficulty walking. She did not want to traverse the broken sidewalk between her place of employment and the parking facilities. Instead, she proceeded to a nearby corner to await transportation. Her walk to a place other than that provided employees for parking did not preclude compensation. 56 N. J. at 15. Mrs. Hammond’s injuries occurred in the course of her employment and in a place where she might normally be. The accident arose out of her employment since it resulted from a risk reasonably incidental to the employment.

Plaintiff herein should not be denied compensation because he availed himself of public transportation rather than obtaining a ride from a co-employee. DiNardo, supra. In DiNardo, petitioner had exited from a school building where she worked in the cafeteria. While en route to a bus stop, her heel caught in a crack in the sidewalk adjacent to the school. The resultant injuries were held compensable within our workmen’s compensation statutes. The court therein noted that whether she was walking along the sidewalk either preparing to enter the building or after leaving, “she was in an area where she might reasonably be, and at a time when her presence there would normally be expected.” 118 N. J. Super, at 539. Whether one is walking to or from work under the facts in the instant case is of no consequence.³ That the employer did not control the locus of injury is irrelevant. Lewis v. Walter Scott & Co., Inc., supra, 50 N. J. Super, at 287.

As in Hammond and DiNardo, this respondent expedited the arrival of its employees who drove to work by providing parking facilities. Those who do not avail themselves of such facilities are covered by our Workmen’s Compensation Act in these circumstances. Hammond; DiNardo. We will not deny petitioner compensation because, as in the instant ease, the employer desires to provide additional parking for hotel guests and to that end temporarily deprives employees of the facilities they are normally permitted to utilize.

A word as to the dissent. We need not consider here the question of whether the “going and coming” rule should be abandoned. Our holding further emphasizes that the rule should be liberally construed within the spirit of the Workmen’s Compensation law. The statement in Hammond, supra, and DiNardo, supra, as to the narrowness of the issue therein is a familiar one. The exceptions to the “going and coming” rule which have developed since its formulation are too numerous to mention. A most thorough and comprehensive discussion can be found in 1 Larson, Workmen’s Compensation, § 15.13 et seq. See also Horovitz, 14 NACCA L. J. 36, 37-46 (1954); Horovitz, “Workmen’s Compensation: Half Century of Judicial Developments,” 41 Neb. L. Rev. 1, 49-59 (1961). Each exception has been carved out of the general rule and each exception is a narrow one. These are the accidents which succumbed to equitable considerations guiding the Court in interpreting such remedial legislation. The rule has come to be honored more frequently in its breach than in adherence to its mandate. And that is why our text writers have observed that the exceptions are so numerous that they have swallowed the rule.

We do not intend any classification of exceptions based on “outer perimeter.” The facts in this case equitably cry out for compensation and we respond by including these facts in an exception previously carved out in Hammond and DiNardo, supra.

The judgment of the Appellate Division is reversed. The judgment of the Division of Workmen’s Compensation is reinstated.⁴

1 Although plaintiff was to receive doubletime pay to compensate for his working on a holiday, be was regularly scheduled to work on July 4 and was to report at the usual hour.

2 In his findings, the Judge of Compensation noted that respondent allowed the employees to park “either at its parking lot on North Carolina or on its parking lot a block away on South Carolina.” The hotel’s paymaster, Mr. Scull, testifying in place of the resident manager, indicated that the hotel had an additional lot on Virginia Avenue two blocks away, “where the overflow goes . . .” We also accept the findings of the Judge of Compensation with regard to the distances involved between the accident site and the respondent’s premises as well as the location of the parking lot.

3 The court in DiNardo did not address itself to the distance from the school premises to the parking lot but mentioned only that the injury occurred while petitioner was on a sidewalk adjacent to the premises.

[118 N. J. Super, at 539]. In Hammond, 56 N. J. at 10, the “distance from respondent’s buliding to the point where [petitioner] waited for her ride was substantially less than the distance from the building to the parking lot.” The Judge of Compensation in the case now before this Court found that the intersection where the accident occurred was approximately 715 feet from respondent’s premises but within the same block. The judge then noted that the lot most often used by employees was one block away.

4 Upon discovering that petitioner’s total disability resulted from the current injury as well as his prior paralysis, the Judge of Compensation directed petitioner to join the Second Injury Fund. In a statement in lieu of brief, the attorney general conceded petitioner’s total disability and that it did not result from the last injury alone. He further noted that should the Judge of Compensation’s decision be upheld, payment of Second Injury Fund Benefits should be made.