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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0958-19T3
DIANE S. LAPSLEY,
Petitioner-Appellant, APPROVED FOR PUBLICATION
January 29, 2021
v. APPELLATE DIVISION
TOWNSHIP OF SPARTA and
SPARTA PUBLIC LIBRARY,
Respondents-Respondents,
and
PAUL AUSTIN and SPARTA
DEPARTMENT OF PUBLIC
WORKS,
Intervenors-Respondents.
____________________________
Argued October 28, 2020 – Decided January 29, 2021
Before Judges Sumners, Geiger, and Mitterhoff.
On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2016-1756.
Matheu D. Nunn argued the cause for appellant
(Einhorn, Barbarito, Frost & Botwinick, PC,
attorneys; Matheu D. Nunn, of counsel and on the
briefs; Christopher L. Musmanno and Christine M.
McCarthy, on the briefs).
William G. Johnson and John R. Tort, Jr., argued the
cause for respondents (Johnson & Johnson, attorneys
for intervenors Paul Austin and Sparta Department of
Public Works; Leitner, Tort, DeFazio, Leitner &
Brause, PC, attorneys for respondents Township of
Sparta and Sparta Public Library; William G. Johnson
and John R. Tort, Jr., of counsel and on the joint
brief).
The opinion of the court was delivered by
MITTERHOFF, J.A.D.
Petitioner Diane Lapsley appeals from a November 25, 2016 order
entered by a judge of compensation concluding that injuries she sustained in a
February 3, 2014 accident arose out of and in the course of her employment as
a Sparta Township librarian pursuant to the Workers' Compensation Act (the
Act), N.J.S.A. 34:15-1 to -146. After clocking out and exiting the library
premises, petitioner was struck by a snowplow in an adjacent parking lot that
happened to be owned by the township. The compensation judge concluded
that petitioner's injuries were compensable pursuant to the premises rule,
N.J.S.A. 34:15:36, which 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
. . . ." Having reviewed the record and the applicable legal principles, we
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2
conclude that a mechanical application of the premises rule in the context of a
public-entity employer deviates from well-settled principles applicable to
private employers and invites an overbroad and unwarranted expansion of
public-entity liability for workers' compensation claims. We therefore reverse.
Petitioner was employed as a librarian at the Sparta Township Library. 1
Her duties included supervising staff, ordering books, and creating marketing
materials for library events. The library is located within a municipal comple x
that also includes three common-use parking lots, a baseball field, and Sparta
Township Board of Education offices. The common-use parking lots are free
for use both by township employees as well as the general public. None of the
parking areas within the common-use lot contain designated spots for
petitioner or any other township employees. Thus, the township imposed no
restrictions on petitioner in terms of paths of ingress or egress to and from the
public parking lot and the library. Id.
On February 3, 2014, the library closed early due to inclement weather.
Id. Petitioner's husband came to pick her up and parked in one of the
common-use parking lots. Id. After stepping off the library curb and walking
about eighteen feet into the lot, the couple was hit by a snowplow driven by a
Sparta Township Department of Public Works employee. Petitioner sustained
1
The parties have stipulated to the facts underlying this appeal.
A-0958-19T3
3
injuries to her leg that required multiple surgeries and have left her
permanently disfigured.
On August 8, 2014, petitioner filed a complaint in the Law Division
alleging negligence against Sparta Township, Sparta's Department of Public
Works, Sussex County, and the driver of the snowplow. On September 29,
2014, Sparta Township filed a motion to dismiss in lieu of an answer, arguing
petitioner's claim was barred by the exclusive remedy provision of the Act.
The motion was denied and Sparta Township was ordered to file an answer. 2
On January 19, 2016, petitioner moved for summary judgment
requesting a ruling that she did not sustain a compensable injury encompassed
by the Act. Sparta Township cross-moved for a stay and requested the matter
be transferred to the Division of Workers' Compensation (Division), or in the
alternative, for summary judgment.
While the motions were pending, in order to toll the statute of
limitations, petitioner filed a protective claim petition in the Division and
requested a stay pending resolution of the Law Division matter. The Township
of Sparta filed an answer to the claim petition on January 28, 2016. Sparta's
Department of Public Works and the snowplow driver successfully moved to
2
The parties stipulated to the dismissal of Sussex County from the case.
A-0958-19T3
4
intervene as co-respondents in the Workers' Compensation matter.
Meanwhile, on February 19, 2016, the trial judge denied petitioner's motion for
summary judgment and granted defendants' request for a stay of the Law
Division matter, to allow the compensability issue to be resolved in the
Division.
On November 25, 2016, a Workers' Compensation judge found
petitioner's injuries were compensable under the Act. Relying on Brower v.
ICT Group, 164 N.J. 367 (2000), the compensation judge determined that
Sparta Township's ownership, maintenance, and right to control the parking lot
were sufficient to find that the injury occurred on the employer's premises. 3
The facts that petitioner had clocked out, and that her employer had not
actually exercised any degree of control over the parking lot, did not preclude
compensability under the Act. Id.
Following the finding of compensability, the parties executed a consent
order staying matters in both the Law Division and Division pending this
appeal. The Law Division matter was dismissed without prejudice on April
3
We agree with the compensation judge's finding that exclusive use is not necessary to
find compensability. We read Brower, however, to hold that an employer's exclusive
use of the situs of an employee's injury is sufficient, but not necessary, to find
compensability. See Brower, 164 N.J. at 372-73.
A-0958-19T3
5
20, 2018. On October 22, 2018, the compensation judge issued an order
approving settlement subject to petitioner's appeal.
On appeal, petitioner argues the compensation judge erred by
determining her injuries arose out of her employment because she was not
engaged in a task for her employer's benefit when the injury occurred. She
further contends that it was error to find the injury occurred during the course
of her employment because she was off the clock and no longer within the
confines of the library when the injury occurred. Petitioner urges that public
policy and legislative intent would not be served if we found that a public
employer's right to control the situs of an employee's injury satisfied the
premises rule.4
Respondent argues that the compensation judge correctly found the
injury compensable. Respondent further contends the Act's exclusive remedy
provision is applicable, because petitioner was injured by a co-employee
immediately after leaving work, while on property owned, maintained, and
used by her employer.
We review final decisions from the Division in accordance with a
deferential standard of review. "An administrative agency's final quasi-
4
Petitioner also argues this court should grant her appeal as of right. Respondents have
not opposed her right to appeal, and we find it unnecessary to address the issue.
A-0958-19T3
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judicial decision will be sustained unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record." Russo v. Bd. of Trustees, Police, 206 N.J. 14, 27 (2011). We are not,
however, "bound by [an] agency's interpretation of a statute or its
determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec.,
64 N.J. 85, 93 (1973), particularly when "that interpretation is inaccurate or
contrary to legislative objectives." Russo, 206 N.J. at 27 (quoting G.S. v.
Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170
(1999)). Instead, this court reviews an agency's interpretation of statutes and
case law de novo. N.J.S.A. 34:15-1 – 146; Mayflower Sec. Co., 64 N.J. at 93.
The Act has been described as "humane social legislation designed to
place the cost of work-connected injury on the employer who may readily
provide for it as an operation expense." Livingstone v. Abraham & Straus,
Inc., 111 N.J. 89, 94-95 (1988) (quoting Hornyak v. Great Atl. & Pac. Tea Co.,
63 N.J. 99, 101 (1973)). The Act entitles an employee to recover for injuries
"arising out of and in the course of his employment . . . . " N.J.S.A. 34:15- -1.
Whether a particular accident arose out of and in the course of
employment raises a two-part question. Acikgoz v. New Jersey Tpk. Auth.,
398 N.J. Super. 79, 87-88 (App. Div. 2008); Stroka v. United Airlines, 364 N.J. Super. 333, 339 (App. Div. 2003). First, there must be a causal
A-0958-19T3
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connection between the employment and the accident itself. Acikgoz, 398 N.J.
Super. at 87-88; Stroka, 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, 398 N.J. Super. at 87-88; Stroka, 364 N.J. Super. at 339. "That the
injured employee may have been 'off the clock' does not automatically
preclude compensability because the situs of the accident is a dispositive
factor." Ackigoz, 398 N.J. Super. at 88 (citing Valdez v. Tri-State Furniture,
374 N.J. Super. 223, 232-33 (App. Div. 2005)).
Although the Act has been broadly interpreted to bring as many cases as
possible within its coverage, Silagy v. State, 105 N.J. Super. 507, 510 (App.
Div. 1969), it was amended by the Legislature in 1979 to "reduce costs by,
among other things, 'sharply curtail[ing compensability for] off-premises
accidents.'" Stroka, 364 N.J. Super. at 338-39 (quoting Jumpp v. City of
Ventnor, 177 N.J. 470, 477 (2003)). Prior to the amendments, courts applied
the going and coming rule, "a doctrine that prevented awarding workers'
compensation benefits for accidental injuries that occurred during routine
travel to or from the employee's place of work." Hersh v. Morris, 217 N.J.
236, 243 (2014). The going and coming rule drew a distinction between
ordinary risks unrelated to employment, and those that were incidental to
employment. Ibid. Its underlying principle was "that the normal journey to
A-0958-19T3
8
and from work is of no particular benefit to the employer and exposes the
worker to no unusual risks." Ibid.
Over the years, however, courts crafted so many exceptions to the going
and coming rule that it remained applicable only to a narrow set of
circumstances. Briggs v. Am. Bilrite, 74 N.J. 185, 189-90 (1977). When the
Legislature amended the Act in 1979, it provided a more restrictive definition
of "employment" in order to curtail compensability. Hersh, 217 N.J. at 244.
Employment, as defined by the Act subsequent to the 1979 amendments:
[S]hall 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.]
With the 1979 amendments, the going and coming rule was replaced
with the premises rule. Kristiansen v. Morgan, 153 N.J. 298, 316 (1997).
"The premises rule is based on the notion that an injury to an employee 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." Ibid. Like the going and
coming rule, the premises rule distinguishes between accidents that occur on
the employer's premises from those that do not. Ramos v. M & F Fashions,
154 N.J. 583, 591 (1998). The Court has explained, however, that the phrase
A-0958-19T3
9
"excluding areas not under the control of the employer . . . . was intended to
make clear that the premises rule can entail more than the four walls of an
office or plant." Kristiansen, 153 N.J. at 316-17. When determining whether
an employee's injury took place on an employer's premises, courts consider (1)
the situs of the accident; and (2) whether the employer had control of the situs
of the injury. Ibid. (citing Livingstone, 111 N.J. at 96).
In Livingstone, the Court extensively analyzed the body of case law
interpreting the "going and coming rule" beginning with Bryant v. Fissell, 84 N.J.L. 72, (Sup. Ct. 1913), through the 1979 amendment to N.J.S.A. 34:15- -36.
Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 90-91 (App. Div. 1992)
(citing Livingstone, 111 N.J. at 95-100). "[T]he Court identified a group of
cases holding that 'parking lots owned, maintained, or provided by employers
were to be considered part of the employer's premises, and that injuries
occurring in such lots before or after the actual work day arose out of and in
the course of employment.'" Ibid. (quoting Livingstone, 111 N.J. at 99). After
reviewing the 1979 amendments to the Act, the Livingstone Court stated:
[W]e are persuaded that the Legislature impliedly
approved of the principle established by those cases,
namely, that lots owned, maintained, or used by
employers for employee parking are part of the
employer's premises, and had no intent to affect the
validity of such decisions . . . The omission of any
provision purporting to overrule or limit the reach of
the parking-lot cases, in light of the comprehensive
A-0958-19T3
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nature of the amendment, indicates that the
Legislature considered these cases to be consistent
with the economic tradeoffs struck by the Act, and
therefore in need of no correction.
[Ibid. (quoting Livingstone, 111 N.J. at 102-03).]
Since Livingstone was decided, however, the Court has narrowed
applicability of the premises rule in parking lot cases. In Novis v. Rosenbluth,
an employee was injured "while walking across the only sidewalk leading from
an office-building parking lot to the entrance of the office building of which
her employer's branch office was located." 138 N.J. 92, 93 (1994). The
parking lot was adjacent to the office building and accommodated the
building's tenants, including employees and visitors of the employer. Ibid.
The employee had not received any instruction from her employer regarding
her use of the lot. Id. at 94.
In reversing our decision in Novis, the Supreme Court found that
Livingstone had incorrectly been construed to adopt a per se rule that an
employer's "use" of a parking lot to benefit its employees automatically
satisfied the premises rule. Id. at 94-95. In that regard, the Court noted that
the employer had not exercised any degree of control over its employee's use
of the common-use parking lot. Id. at 96 (emphasis added). Rather, it "simply
shared the lot with the other tenants." Ibid. Thus, lacking the critical element
of employer-directed control of the employee's use of the lot, the Court found
A-0958-19T3
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the injury non-compensable. Ibid.; see also Hersh, 217 N.J. at 249-50 (finding
an injury sustained in a cross-walk while walking from an employer-provided
parking lot to the place of employment non-compensable, in part, because
paths of ingress or egress were not dictated by the employer); cf. Bradley v.
State, 344 N.J. Super. 568, 579 (App. Div. 2001) (finding off-premises injuries
sustained while using employer-directed paths of ingress or egress before or
after work compensable).
A critical factor in the evolution of Workers' Compensation off-premises
parking lot cases, then, is the degree of control the employer exercises over the
employee's use of the lot. An injury will be compensable if it is sustained
while the employee is using the lot where the manner of ingress or egress is
dictated by the employer, Bradley, 344 N.J. Super. at 579, or in an area where
the employee parks at the employer's direction for the employer's proprietary
gain. Livingstone, 111 N.J. at 105-06. Use of a shared parking lot that
accommodates multiple tenants, without specific instruction from an employer,
is not sufficient to satisfy the premises rule. Novis, 138 N.J. at 96.
This case is distinguishable from the foregoing authorities, of course,
because the Township happens to own the parking lot adjacent to the library.
Nevertheless, we conclude that there is no reasoned basis to depart from the
general rule that the library's "use" of the common-use parking lot for its
A-0958-19T3
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employees' benefit is not sufficient to satisfy the premises rule. It was
stipulated that petitioner was off-the-clock at the time of the accident and had
exited the library premises. Library employees were not given any instructions
about where in the subject lot to park or indeed whether to park in that
particular lot, on the street, or anywhere else in town where parking may be
available. Nor were library staff instructed on the manner of ingress or egress.
The lot was shared with other municipal employees and members of the public
alike. Thus, the stipulated facts established that petitioner's employer
exercised no control of its employee's use of the subject lot, that control being
a critical element of the premises rule's application.
The reason control of an employee's use of the property is critical in a
public-employer context is illustrated in Ackigoz, 398 N.J. Super. at 90. In
Ackigoz, two New Jersey Turnpike Authority (NJTPA) employees had a car
collision while crossing an overpass that led to and from a NJTPA facility. Id.
at 82. Both drivers were off the clock at the time of the accident; one was
heading home and the other was returning to the facility to pick up his
paycheck. Ibid. The overpass was owned and maintained by the NJTPA and
used by its employees, State Police, business invitees, and the general public.
Id. at 90. The roadway was only one of several means of ingress and egress to
the maintenance yard, including one access that adjoined a public road.
A-0958-19T3
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Although the NJTPA specifically permitted its employees to use the overpass,
it neither encouraged nor discouraged the use of the roadway leading to the
access overpass where the accident occurred.
After the accident, one of the drivers sought to bar a third-party
negligence claim against him, alleging both drivers were in the course of their
employment at the time of the accident because the situs of the accident was
owned, controlled and maintained by their mutual employer. Id. at 82.
Rejecting that compensability was established based solely on the NJTPA's
ownership and maintenance of the roadway, we observed such a conclusion:
[W]ould essentially abrogate the premises rule
because the [NJTPA] owns and maintains the entire
New Jersey turnpike system. Clearly, the mere fact
that an [NJTPA] employee was involved in an
accident on a road owned and maintained by the
[NJTPA] cannot serve as a sufficient basis to conclude
the accident occurred in the course of petitioner's
employment.
[Id. at 90.]
Despite the NJTPA's undisputed ownership and maintenance of the
location, we upheld the compensation judge's conclusion that neither driver
was in the course of their employment at the time of the accident. Relevant to
this case, one driver had left the designated parking area of the facility where
he worked and was on his way home. We agreed that once he left the
designated parking lot, the route became part of his normal commute and he
A-0958-19T3
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was no longer on the employer's premises. This despite the fact that the
premises of his employer and the accident site were each owned, maintained
and controlled by the NJTPA. Id. at 89.
Similarly, in this case the Township owns and maintains multiple
properties and roadways within its geographical boundaries, including the
library premises and the adjacent parking lot. Library employees, however,
are neither encouraged nor discouraged from utilizing the subject common -use
lot. Like the employee in Acikgoz, once petitioner clocked out and exited the
library premises, she embarked on her normal commute home. To conclude
that petitioner's injuries would be compensable on any town-owned lot or
roadway after leaving the library premises would be an unwarranted and
overbroad expansion of public-entity exposure for workers' compensation
claims under the Act.
Reversed.
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