Ingress and Egress: Appellate Division Finds Employer Had Control Over Parking Lot

by Michael R. Duffy, Esquire

The New Jersey Appellate Division recently affirmed a Judge of Compensation’s decision finding a slip and fall in a parking lot to be within the course and scope of employment. In Giordano v. High Point Insurance, et al., 2016 N.J.Super. Unpub. LEXIS 2233 (App.Div. Oct. 11, 2016), the petitioner slipped and fell in a parking lot of a multi-tenant building on her way to the building in which the respondent/employer had its offices. The petitioner filed a workers’ compensation claim for injuries suffered to her right shoulder. Following a trial, the Judge of Compensation found the petitioner’s injury compensable. The respondent appealed, arguing the Judge had erred in his finding of compensability.

The petitioner worked for High Point, which provided its employees access to the leased parking lot where the petitioner was injured. As part of the lease, High Point was responsible for a portion of the parking lot’s operating expenses and had ten assignable parking spots. In fact, High Point assigned 22 spots to its directors, management and employees who won awards. Other tenants in the building also assigned and marked spots that were not available to other High Point employees. The petitioner and other High Point employees were instructed to park in spots that were “not marked.” Employees who parked in a marked spot would be asked to move, and a security officer would place a sticker on their car. High Point enforced the marked parking spots. There was no other available on- or off-street parking for over a mile. At the time of the petitioner’s accident, there were three different doors for entering and exiting the building.

On the date of injury, the petitioner parked her car in an unmarked spot in the parking lot. On her way to the building, she fell in the lot on twigs and other debris, injuring her right shoulder. The Judge of Compensation found that the injury arose out of and in the course of employment because the respondent “controlled” the lot. The Appellate Division agreed, finding High Point controlled the ingress and egress to work by providing parking and directing employees where to park. In reaching this decision, the Appellate Division analyzed the history of the “going and coming rule,” which has evolved into “the premises rule.”

The Appellate Division noted the law previously provided that an injury is not compensable when it is sustained during travel to and from work (the “going and coming rule”). However, there were many exceptions to the rule, which eventually evolved into the premises rule. The statute now clarifies the timeline of employment as, “[w]hen 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. Under the premises rule, there are two pivotal questions: (1) where was the site of the accident and (2) did the employer have control of the property on which the accident occurred? Hersh v. Cty. of Morris, 86 A.3d 140, (N.J. 2014). Therefore, if an employer has control over the area, but does not own the area, an employee’s injuries may still be compensable under the premises rule.

The Appellate Division compared this with a prior case dealing with the premises rule, Livingstone v. Abraham & Straus, Inc., 543 A.2d 45 (1988), where the court found the employee’s injuries, sustained while walking from an employee parking area, were compensable. The employer required its employees to park in the far part of the parking lot, allowing customers to park closer to the employer’s place of business. The Livingstone court provided that, for the purpose of the premises rule, “[l]ots owned, maintained, or used by employers for employee parking are part of the employer’s premises.” As the employer designated where the employee parked, the employer had control of the parking lot, and the designation of employee parking was “entirely for its benefit.”

The Appellate Division also addressed employer control over ingress and egress routes by citing Bradley v. State, 782 A.2d 978 (App.Div. 2001). In Bradley, the employer furnished employees parking in specific designated sections of a parking garage, even though they were not reserved spots. However, the employer did have 350 out of 600 permits to park in the garage. The court found the employer exercised sufficient control over the area, even though the site was not actually owned, maintained or exclusively used by the employer.

Lastly, the Appellate Division cited Hersh, which found that an injury sustained by an employee while walking two blocks between her employer-provided parking garage and her office building was not a compensable injury. The court reasoned that the employer did not have control over the garage or the public street where the injury occurred. The Appellate Division listed the factors to be analyzed, stating: “[t]he employer in Hersh ‘only rented a small portion of the spots in the lot,’ did ‘not own or maintain’ the garage, ‘derived no direct business interest from paying for employees to park in the garage,’ did not control the public street the injury occurred on, did not add ‘any special or additional hazards’ to the employee’s ingress or egress to work, and did not control the employee’s ingress or egress route.”

The court reasoned that High Point had sufficient control over the parking lot where the petitioner was injured. The critical factors in reaching this decision were:

1. High Point leased a portion of the lot for its key employees and business invitees;
2. High Point was responsible for a portion of the operating expenses of the lot, pursuant to the lease agreement;
3. High Point controlled the lot by designating where employees were to park and not to park;
4. High Point further established control by enforcing the parking rules;
5. As there was no on- or off-street parking available for over a mile, High Point controlled the ingress and egress of the employees; and,
6. The accident occurred in the lot, unlike Hersh, where the accident occurred on a public road where the employer had no control.

In analyzing workers’ compensation parking lot cases, it is important to determine if the employer had the requisite control. Does the employer own, lease, maintain or control where some or all of its employees park? Does the employer tell its employees where to park or where not to park? Is there available off-site parking within a reasonable distance? Giordano leaves unanswered how many of the above factors are sufficient to satisfy “control.”

*Mike is an associate in our Cherry Hill, New Jersey office who can be reached at 856.414.6025 or mrduffy@mdwcg.com.

_{Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest 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. © 2017 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.}