PATRICIA BRENINGHOUSE - v. ITALIAN PEOPLES BAKERY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6586-06T36586-06T3

PATRICIA BRENINGHOUSE,

Petitioner-Appellant,

v.

ITALIAN PEOPLES BAKERY,

Respondent-Respondent.

____________________________

 

Argued May 27, 2008 Decided

Before Judges Lintner and Alvarez.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, No. 2004-37568.

Bruce P. Miller argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Miller, of counsel and on the brief; Kendall W. Medway, on the brief).

Michael J. Marone argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent; Mr. Marone, of counsel; Richard J. Williams, Jr. and Joseph G. Fuoco, on the brief).

PER CURIAM

Petitioner, Patricia Breninghouse, appeals from a determination denying her benefits under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128, as a result of application of the "premises rule," N.J.S.A. 34:15-36. We affirm essentially for the reasons stated by Judge Cox in his thoughtful and well-reasoned decision dated July 9, 2007, written after a bifurcated hearing on the issue of compensability only.

Petitioner had worked as a sales clerk for respondent Italian Peoples Bakery, for over twenty-five years. On December 1, 2004, she clocked out of work at approximately 11:00 a.m. from respondent's bakery on Butler Street. Respondent also operates a pastry shop located across Butler Street on a nearby side street or alley, named Peoples Bakery Lane. While walking along the alley, petitioner tripped and fell, injuring her right shoulder. Her claim for benefits arises from those injuries, as she contends the alleyway was under the control of her employer within the meaning of Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337 (App. Div. 1985) and Ramos v. M & F Fashions, Inc., 154 N.J. 583 (1998).

We employ a standard of review which "is equivalent to that used for review of any nonjury case. We may not substitute our own fact-finding for that of the judge of compensation . . . ." Scott v. Foodarama Supermarkets, 398 N.J. Super. 441, 445 (App. Div. 2008) (citation omitted). The question we must answer is whether giving due regard to agency expertise, the findings were based on sufficient, credible evidence considering the proofs as a whole. Ibid.

The Act defines the "employment" continuum as follows:

Employment 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; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer . . . .

[N.J.S.A. 34:15-36.]

In Cressey, supra, 204 N.J. Super. at 340, the employee was injured while leaving her job through the only means of ingress and egress, over a loading dock. Although the dock was not exclusively used by the employer, it was used so extensively by the employer that it became part of the employer's business premises. Id. at 343. As said in Cressey:

The line between compensibility and noncompensibility under the premises rule is very strict. . . . [U]nless an employee is within the physical confines of the premises when an injury occurs, it is noncompensable.

. . . .

A majority of jurisdictions recognize an exception to the going and coming rule that permits compensibility where the off-premises point at which the injury occurred lies on the only route that the employee can traverse and therefore the special hazards of the route become hazards of employment.

[Id. at 344 (citations omitted).]

Similarly, in Ramos, supra, 154 N.J. at 587, an employee at a manufacturing company was severely injured when he fell down an elevator shaft on his way to work at the company's fourth-floor factory. Ibid. The fourth floor premises included only one other tenant. Ibid. The elevator, along with a staircase, was the only means of ingress and egress for employees. Ibid. It was the only means of ingress and egress when employees transported bulk fabrics and finished goods to and from their workplace. Id. at 592. The Court explained that in order for the injuries to be compensable, M & F must have controlled the freight elevator. Ibid.

"Control," as defined in the Act, is more expansive than is normally the case in property law. Ibid. In this context, the Court found that "when an employer uses a common area for business purposes," such as the transporting of materials and finished product, "the common area is, by virtue of that use, subject to the employer's control and considered part of the employer's premises within the intendment of the [Act]." Id. at 593. The fact that others used the elevator did not preclude its inclusion in the business premises covered by the Act. Ibid. The elevator was considered within the employer's control because, within the confines of the building, it was a common area used in conducting business, and for ingress and egress. Ibid. Therefore, the Court found the accident to have occurred within premises covered by the Act as defendant had reported to work, and his employment was therefore considered to have commenced. Id. at 593-94.

Neither case supports the proposition advanced here. Judge Cox appropriately employed a liberal construction of the act, and we must also apply that same construction. As Judge Cox stated, however, the legislature developed the "premises rule" in order to limit the expanded "going and coming rule," which defined when work began and ended for purposes of compensability. Id. at 591.

Cressey and Ramos present factual scenarios far different from the one in this instance. As Judge Cox noted, although there was extensive use of the alley by respondent, it was ultimately a public street over which traffic unrelated to respondent's business regularly traversed. At least one other business also parked its delivery truck on that block. There were a number of residential homes with backyards that exited onto the lane. Although the city named the alley after respondent's business as acknowledgment of the amount of time it had operated there, the city tickets customers who illegally park in the lane and maintains the street. While respondent uses the alley to park vans and trucks on the street on a semi-permanent basis, it was unable to purchase the street from the city when it attempted to do so.

The alley was not petitioner's only route home, but one of at least two ways by which she could have traveled the one-and-a-half blocks to her home. Respondent's use of the alley in no way affected petitioner's travel. We cannot conclude that the mere use, however extensive, of a public roadway, constitutes control as contemplated by the Act.

Affirmed.

 

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A-6586-06T3

July 21, 2008