TAWANNA FLOYD v. CAROL VON NEUDECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3855-10T2

TAWANNA FLOYD,

Plaintiff-Appellant,

v.

CAROL VON NEUDECK,

Defendant-Respondent.

_______________________________

SubmittedJune 4, 2012 Decided June12, 2012

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2486-09.

Mandel & Sawyer, P.C., attorneys for appellant (Matt D. Mandel, on the brief).

Sellar Richardson, P.C., attorneys for respondent (Christopher W. Ferraro, on the brief).

PER CURIAM

In this negligence action, plaintiff Tawanna Floyd appeals from the trial court's grant of summary judgment to defendant Carol Von Neudeck. At the time of the parking lot accident that produced her injuries, plaintiff was a fellow employee of defendant at Greystone Psychiatric Hospital ("Greystone"). The trial court concluded that plaintiff's claim is barred by the exclusive remedy provision, N.J.S.A. 34:15-8, of the Workers' Compensation Act ("the Act"), N.J.S.A. 34:15-1 to -128. We agree and affirm.

These are the pertinent facts, which we assess in a light most favorable to plaintiff. Brill v. GuardianLife Ins. Co. ofAm., 142 N.J. 520, 540 (1995).

On the morning of April 20, 2007, plaintiff drove her automobile to work at Greystone. Plaintiff entered the Greystone complex from an entrance off of Old Dover Road, and then she turned on to Mountain Meadow Drive.

Plaintiff parked her vehicle by the curb on Mountain Meadow Drive across from a building known as cottage four. The spot was within a designated parking area, although, according to defendant, it typically was not utilized. Plaintiff shut off the engine of her car and removed her seat belt. Plaintiff then turned on the radio and sipped coffee, remaining in the driver's seat.

After plaintiff parked her car, while she was still in the driver's seat, a Subaru Outback struck plaintiff's car from the rear. The Subaru was driven by defendant. According to plaintiff, immediately after the collision, defendant admitted that she had intended to put her foot on the brake, explaining that she had been talking on her phone and accidentally had stepped on the gas pedal.

Plaintiff claims that as a result of the collision, she suffered injuries to her head, neck, right shoulder, back, knees and toes. Plaintiff briefly lost consciousness after the impact, and she was brought to a hospital where she was treated and released.

Plaintiff sued defendant, her fellow employee, in the Law Division for negligence. During the course of discovery, defense counsel served upon plaintiff a request for admissions concerning the accident. Plaintiff did not respond to that request. Consequently, the items included in that request are deemed admitted by plaintiff and the matters recited within them are "conclusively established" for purposes of this action. R. 4:22-1; R. 4:22-2.

Among other things, plaintiff is deemed under Rule 4:22-1 to have admitted several facts that are critical to the exclusivity analysis under N.J.S.A. 34:15-8. In particular, plaintiff has admitted that she and defendant are co-workers, that both of their vehicles were in "an employer-designated parking area" when the collision occurred, and that the two of them had parked, or were parking, in that area "in order to proceed into work." Plaintiff further admitted that the parking area was "inside the Greystone Psychiatric Hospital complex" and that her employer "controls the area where the accident occurred."

Given these circumstance, the trial court granted summary judgment to defendant because plaintiff's injuries are solely compensable under the Act. In his oral opinion, the motion judge applied prior case law similarly involving auto accidents in employer-owned parking areas. The judge found it particularly significant that, in the present case, Greystone owned the property where the parties had each parked and where the accident took place. Plaintiff then moved for reconsideration, which the motion judge denied.

On appeal, plaintiff argues that the trial court erred in confining her to the exclusive remedies of the Act because the accident allegedly did not arise out of, nor occur in the course of, the parties' employment. We reject that contention, and affirm the issuance of summary judgment substantially for the reasons expressed in Judge Martin G. Cronin's bench opinion dated January 10, 2011. We add the following comments by way of amplification.

The Act entitles an employee "to recover for injuries 'arising out of and in the course of his employment[.]'" Acikgozv. N.J. Tpk. Auth., 398 N.J. Super. 79, 87 (App. Div.) (quoting N.J.S.A. 34:15-1), certif. denied, 195 N.J. 418 (2008); see also N.J.S.A. 34:15-7. Whether a particular accident arose out of, and in the course of, employment raises a two-part question. Acikgoz, supra, 398 N.J. Super. at 87-88; Strokav. United Airlines, 364 N.J.Super. 333, 339 (App. Div. 2003), certif.denied, 179 N.J. 313 (2004). First, there must be a causal connection between the employment and the accident itself. Acikgoz, supra, 398 N.J. Super. at 87-88; Stroka, supra, 364 N.J. Super. at 339. Second, there must be a time-and-place nexus between the injured worker's employment and the accident. Acikgoz, supra, 398 N.J. Super. at 87-88; Stroka, supra, 364 N.J. Super. at 339.

If these conditions are met, N.J.S.A. 34:15-8 bars a negligence action by the injured worker against her employer or a fellow servant, unless the conduct producing the injury comprises an intentional wrong.1 N.J.S.A. 34:15-8; see also McDanielv. Man Wai Lee, 419 N.J. Super. 482, 491 (App. Div. 2011) (explaining that in order for N.J.S.A. 34:15-8 to bar "'a suit against a co-employee, three conditions must be satisfied: (1) the plaintiff must have suffered a compensable injury; (2) the plaintiff and defendant must have been co-employees; and (3) the defendant must have been acting in the course of his employment.'" (quoting Daus v. Marble, 270 N.J.Super. 241, 246 (App. Div. 1994))).

In cases such as this, the "premises rule" is instructive in analyzing whether or not a plaintiff's accident occurred during "the course of employment." The "premises rule" was enacted by the Legislature in 1979, and it replaced what was formerly described as the "going and coming rule." See Kristiansen v. Morgan, 153 N.J. 298, 316 (1998) (citing L. 1979, c. 283, 12), modified, 158 N.J. 681 (1999); Brower v.ICT Group, 164 N.J. 367, 371 (2000). The Legislature displaced that prior doctrine because of "the judiciary's broad reading of the statutory criteria for coverage" under the Act. Livingstone v. Abraham& Straus, Inc., 111 N.J. 89, 100-01 (1988).

The premises rule is codified in N.J.S.A. 34:15-36, and focuses substantially upon whether the accident in question occurred at the injured worker's "place of employment":

Employmentshall be deemed tocommence when an employeearrives at the employer'splace of employment toreport for work andshall terminate when theemployee leaves theemployer's place ofemployment, excluding areasnot under the controlof 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; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.

[(Emphasis added); see also Jumpp v.City of Ventnor, 177 N.J. 470, 480 (2003); Acikgoz, supra, 398 N.J.Super. at 88.]

Conversely, if the accident occurs off of the employer's premises while the employee is commuting to or from home, workers' compensation benefits are generally unavailable.

As the Supreme Court has explained, "[t]he 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." Kristiansen, supra, 153 N.J. at 316. Additionally, "[t]he 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.'" Ibid. (quoting Cressey v. CampusChefs, Div. of CVIServ., Inc., 204 N.J. Super. 337, 342 (App. Div. 1985)).

Under the Act, the meaning of the term "control" is "more expansive than under formal property law concepts." Brower, supra, 164 N.J. at 372. "It is well-established in workers' compensation jurisprudence that when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right." Id. at 372-73.

These concepts under the premises rule have been instructively applied to accidents occurring in an employer's parking area and accidents involving employees who arrived on their employer's premises before their work shift began. For example, in Mule v.N.J. Mfrs. Ins. Co., 356 N.J. Super. 389, 398 (App. Div. 2003), we held that the Act did not bar an uninsured motorist benefits claim by a worker who became injured when he returned from a company picnic. The plaintiff in Mule was struck in the parking lot by the car of another employee who had also returned to the premises, but for the purposes of taking a shower and changing his clothes before heading to a tavern. Ibid. We found it significant that the other employee was not on the employer's premises in anticipation of doing any work there, id. at 397, a circumstance distinguishable from the present case in which both plaintiff and defendant were in the parking area about to go to work. Had the other employee in Mule similarly planned to resume working, the Act's exclusivity provision likely would have applied.

Also instructive is Ramos v. M &F Fashions, Inc., 154 N.J. 583 (1998). In that case, the plaintiff was injured after falling into an elevator shaft in his employer's premises after arriving at 7:00 a.m., about an hour before his shift began at 8:00 a.m. Id. at 588. The Supreme Court held that the accident was compensable under the statute even though the plaintiff had not yet started his shift and habitually arrived early to drink coffee, read the newspaper, and smoke a cigarette. Id. at 594-95. In its analysis, the Court noted, among other things, that the fact that Ramos was injured before the work day began did not affect the outcome. Id. at 593-94. As the Court observed, "control is not a temporal concept. The boundaries of an employer's premises do not shift with the hour; instead, they are established until the employer relinquishes and ceases to use the site." Id. at 593.

Here, the circumstances clearly support the motion judge's conclusion that this parking lot accident involving two co-employees is subject to the exclusive remedies provided under the Act, particularly in light of plaintiff's admissions. The accident concededly took place on the employer's premises in a designated parking area. Both employees were on the premises for the purpose of starting their work day. The parking area was within the employer's control.

The causal nexus between the accident and plaintiff's employment is manifestly established. It is inconsequential that she, like the plaintiff in Ramos, had arrived early to drink her morning coffee and ease into her workday before performing her work functions.2 The nexus to plaintiff's employment is more than sufficient here to conclude that the Act provides the exclusive means to compensate her for her injuries.

1 Plaintiff does not argue that the intentional wrong exception under the statute applies here.

2 The fact that the injured employee might have been "off the clock" does not, in and of itself, "preclude compensability because the situs of the accident is a dispositive factor." Acikgoz, supra, 398 N.J. Super. at 88.