KAREN CONNOLLY v. TOWN OF BELVIDERE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6170-11T3

KAREN CONNOLLY,

Plaintiff-Appellant,

v.

TOWN OF BELVIDERE,

Defendant,

and

COUNTY OF WARREN,

Defendant-Respondent.

___________________________

October 25, 2013

 

Submitted October 1, 2013 Decided

 

Before Judges Reisner and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0428-09.

 

William E. Mandry, attorney for appellant.

 

Florio Perrucci Steinhardt & Fader, L.L.C., attorneys for respondent (Veronica P. Hallett, of counsel and on the brief).

PER CURIAM

In this personal injury lawsuit, plaintiff Karen Connolly appeals from a June 29, 2012 Law Division order, granting summary judgment in favor of her employer, defendant Warren County (County). For the reasons that follow, we affirm the grant of summary judgment and order that the complaint be transferred to the Division of Workers' Compensation.

I

We review a trial court's decision granting summary judgment de novo, employing the same standard used by the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We determine whether there are material facts in dispute and, if not, whether the undisputed facts, viewed most favorably to the non-moving party, entitle the moving party to judgment as a matter of law. Ibid.; see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On a summary judgment motion, the moving party is required to file a statement of undisputed material facts, supported with citations to evidence in the record. R. 4:46-2(a). The opponent must respond with a statement admitting or denying each alleged undisputed fact, with citations to the record. R. 4:46-2(b). The opponent is bound, as to those facts that it either admits or fails to deny with a citation to legally competent evidence in the motion record. Ibid.; see Polzo v. Essex Cnty., 196 N.J. 569, 586 (2008). We have reviewed the record with those standards in mind.

On August 7, 2009, plaintiff filed a complaint against the County and the Town of Belvidere, alleging that on August 24, 2007, she slipped and fell on a defective sidewalk at 199 Hardwick Street in Belvidere. The County filed an answer admitting that it owned the property, and asserting several defenses.

At her November 3, 2011 deposition, plaintiff testified that she was employed by the County as a case worker for the board of social services, which was located at "the courthouse annex in Belvidere." She also testified that the courthouse annex was part of the county library building. Plaintiff testified that the fall occurred during her work day and, when she fell, she was returning from her lunch break. She testified that the fall occurred next to the side door of the library building, located at 199 Hardwick Avenue.1

Plaintiff testified that prior to her fall she left the annex "[t]o go get lunch." She testified that at "[a]round 11:30 a.m.," she went to a nearby deli for lunch, and she did not run any other errands during her lunch period. Plaintiff stated that she had worked for the County for about twenty-eight years, and her office was always in the courthouse annex. However, she "didn't always go out that door, the side door, which is where I fell." She would "usually go through the library and out the front" door. However, on this day, she left through the side door. On her way back from lunch, she crossed the street at the corner of Hardwick and Front Streets to get to her place of work. She confirmed that she fell on the sidewalk "adjacent to the courthouse annex building."

She testified that she did not recall the exact address where she fell, but confirmed that it was on Hardwick Street "outside of [her] place of business."2 A co-worker responded to plaintiff's call for help, and assisted her to walk "through the side door of the courthouse annex." From that door, she walked "through the library and through the door back to my office."

After taking plaintiff's deposition, the County filed a motion for leave to amend its answer to assert the Workers' Compensation Act, N.J.S.A. 34:15-8, as an additional defense.3 Plaintiff opposed the motion, attesting in her certification that the County had declined to provide her with workers' compensation benefits and asserting that the County

cannot deny the existence of a Worker's Compensation claim when the accident occurred and then later seek to use the Workers' Compensation Act as a defense to my claim for their negligent maintenance of a sidewalk. If the County would amend its position and agree to provide Workers' Compensation benefits to me, that may be acceptable.

 

The motion to amend was granted, and the County subsequently filed a motion for summary judgment. The motion raised a plethora of defenses, including the workers' compensation bar and pertinent sections of the Tort Claims Act relating to public property, N.J.S.A. 59:4-1 to 10. However, in an oral opinion placed on the record on June 29, 2012, the motion judge concluded that the complaint was clearly barred by the Workers' Compensation Act (the Act), and it was unnecessary to address the County's additional defenses. She noted that the County clearly owned "[the] lot on which the Courthouse Annex was situated[,] and . . . that is [plaintiff's] place of employment. That's where she works. And they owned the sidewalk [on which plaintiff fell], and controlled it, and maintained it."

II

Having reviewed the record de novo, we conclude that there were no material facts in dispute, and the case was thus ripe for summary judgment. See Brill, supra, 142 N.J. at 540. We further conclude that the trial judge reached the correct decision as a matter of law.

Entitlement to workers' compensation benefits is controlled by the "premises rule" set forth in N.J.S.A. 34:15-36; see Kristiansen v. Morgan, 153 N.J. 298, 316-17 (1998).4 The Act provides that "[e]mployment 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." N.J.S.A. 34:15-36.

The premises rule is based on the notion that an injury to an employee that happens going to or coming from work arises out of and in the course of employment if the injury takes place on the employer's premises. The premises rule "limits recovery to injuries which occur on the employer's premises . . . by confining the term 'course of employment' to the physical limits of the employer's premises." Thus, unless one of the statutory exceptions not implicated here is triggered, an employee who is not physically on the employer's premises is not technically in the course of the employment.

 

The Legislature used the phrase "excluding areas not under the control of the employer" in its definition of employment because it intended to include areas controlled by the employer within the definition. That phrase was intended to make clear that the premises rule can entail more than the four walls of an office or plant. The pivotal questions under 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.

 

[Kristiansen, supra, 153 N.J. at 316-17 (citations omitted).]

 

In Kristiansen, a New Jersey Department of Transportation (NJDOT) employee, whose job involved raising and lowering a drawbridge on the Victory Bridge, was walking north on the bridge to get to his car after work. Id. at 303-04. The employee worked in one of three shacks located at the center of the bridge. Ibid. His car was parked in one of several parking lots all of which were reachable only by walking north on the bridge. Ibid. The Court held that, because the bridge was owned by NJDOT it was part of the employer's premises:

Regardless of which lot was used, the employees of NJDOT had to walk north on the bridge, and the accident occurred on the bridge. This case is no different than the case of an employee who punches out on the time clock at the front entrance and is injured while walking through the plant to reach his or her car parked in a rear parking lot. Hence, we affirm the Appellate Division's holding that compensability was established as a matter of law.

 

[Id. at 317.]

 

In addition to occurring on the employer's premises during work hours, the injury must "arise out of" the employment. N.J.S.A. 34:15-1; see Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471, 478 (App. Div. 1999). In Zahner, we observed that "injuries occurring on the employer's premises during a regular lunch hour arise 'in the course of employment.'" Id. at 479 (quoting Chen v. Federated Dep't Stores, Inc., 199 N.J. Super. 336, 337 (App. Div. 1985)). Because the Act is humanitarian social legislation, it is to be liberally construed in favor of coverage, for the protection of employees. Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 232 (App. Div. 2005).

We agree with the trial judge's legal conclusion that plaintiff's claim is barred by the Act. Plaintiff is bound by her deposition testimony that she was on her lunch break during her work day when she fell, and that she fell on the sidewalk adjacent to the side door of the courthouse annex, which was her place of work. The County owned the sidewalk, which was part of the lot on which the annex was located. Thus, it was part of the employer's premises. If plaintiff fell on some remote County property, which was not part of the library/courthouse annex building and grounds, the Act would not apply to her. See Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79 (App. Div.), certif. denied, 195 N.J. 418 (2008). But in this case, the County property where she fell was not remote from, or unconnected to, her work place.

Moreover, because the accident occurred on the employer's premises during plaintiff's work day, as she was returning to her office after a lunch break, the accident arose out of her employment. The fact that the public also used the sidewalk does not change the result. The public also used the public library. But if plaintiff fell in the library while walking to her office in the annex, she would also be entitled to the protections of the Act.

Because plaintiff's fall was a work place accident covered by the Workers' Compensation Act, she was barred from pursuing a negligence action against her employer, the County. N.J.S.A. 34:15-8. Accordingly, we affirm the dismissal of plaintiff's Law Division complaint.

However, we note that in the Law Division action, plaintiff asked in the alternative for the opportunity to seek workers' compensation benefits, and her Law Division complaint was filed within the two year limitations period for the filing of a compensation claim. See N.J.S.A. 34:15-51. Therefore, in the interests of justice, we modify the June 29, 2012 order by directing that plaintiff's complaint be transferred to the Division of Workers' Compensation.5 See Rule 1:13-4(a)6; Doe v. St. Michael's Med. Ctr., 184 N.J. Super. 1, 9 (App. Div. 1982); Townsend v. Great Adventure, 178 N.J. Super. 508, 517-18, 518 n.2 (App. Div. 1981).

Affirmed in part, modified in part.

1 Plaintiff's brief improperly relies on statements in her expert's report concerning the alleged location of the accident. Those statements, which assert that the fall occurred a long distance from the annex building, are inadmissible hearsay.

2 In her responses to the County's statement of undisputed material facts, plaintiff did not deny that the courthouse annex was located at 199 Hardwick Street.

3 N.J.S.A. 34:15-8 provides that, with exceptions not relevant here, the Workers' Compensation Act is the exclusive remedy against the employer for an employee's workplace injury; thus, the Act bars an employee from pursuing a negligence action against the employer.

4 Defendant inappropriately relies on outdated cases such as Wyatt v. Metro. Maint. Co., 74 N.J. 167 (1977), which construed the "going and coming rule." That rule was abrogated when the Legislature adopted the premises rule. See Jumpp v. City of Ventnor, 177 N.J. 470 (2003).

5 For future reference, an employee in plaintiff's situation, who questions (or whose employer questions) whether her accident is compensable, should simultaneously file a workers' compensation petition and a Law Division action, so that the Division of Workers' Compensation can exercise its primary jurisdiction to decide if the accident is compensable. See Kristiansen, supra, 153 N.J. at 314-15.

6 "[I]f any court is without jurisdiction of the subject matter of an action . . . it shall, on motion or on its own initiative, order the action . . . transferred to the proper court, or administrative agency. . . . The action shall then be proceeded upon as if it had been originally commenced in that court or agency." R. l:13-4(a).