Parked her car, struck by vehicle before she enters building: Comp?

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An important consideration in some workers’ comp cases is when the workday begins. It’s key in this case in which a woman parked her car and then was struck by another vehicle before she entered her workplace.

Cheryl Hersh was an employee of Morris County, NJ, government. On Jan. 29, 2010, Hersh had parked her car in a garage and was struck by a vehicle while crossing a public street between the garage and her office. She suffered significant injuries.

Hersh didn’t have enough seniority to park in the employer-owned lot next to her building. The county rented 65 spaces from a parking garage about two blocks from the building. The county told Hersh to park on the third level of the garage but didn’t assign her a particular parking space. She was provided a scan card to gain access to the garage.

When she filed for workers’ comp benefits, a judge of compensation concluded her injuries were compensable. Relying on previous case law (Livingstone v. Abraham & Strauss), the judge found parking lots provided or designated for employee use are part of the employer’s premises.

An appeals court agreed, finding that the county controlled part of the garage by designating the third floor for use by its employees.

The county took the case to the New Jersey Supreme Court.

Courts grapple with issue

The premises rule within New Jersey’s workers’ comp law states:

“Employment shall be deemed to commence when an employee arrives at the employer’s place of employment … excluding areas not under the control of the employer.”

In the case cited by the judge of compensation (Livingstone), a mall tenant told its employees to park in the far end of the mall-owned parking lot so customers could use closer spaces. An employee was injured while walking toward the building after parking her car. The court ruled the injuries arose out of and in the course of employment and were compensable because the employer’s rule that employees should park in the far end of the lot exposed the workers to an added hazard for the employer to gain a business benefit.

In its decision in this case, the NJ Supreme Court noted that another case further clarified (or muddied, depending on your point of view) these types of situations. In Novis v. Rosenbluth Travel, while walking from her car to her place of employment, an employee slipped on a sidewalk connecting the parking lot to the sole entrance of the office building where her employer was a tenant. The court found her injuries weren’t compensable because the employer “simply shared the lot with the other tenants.” The facts were insufficient to establish any exercise of control by the employer over the lot.

The justices also noted that appeals courts have “grappled with the degree of control or direction an employer exercised [over a parking place] to decide whether benefits are available.”

One decision that the court didn’t note is a recent one by a New Jersey appeals court that we recently wrote about. While pulling out of her employer’s parking lot, an employee’s vehicle was hit by another car. The employee’s vehicle was partially in the street and partially in the parking lot. In this case, the court ruled the employee should receive workers’ comp because the injured worker’s vehicle was still partially in the employer’s lot.

Getting back to Hersh’s case, the NJ Supreme Court found the county:

  • didn’t own, maintain or control the parking garage
  • rented only a small portion (65 spaces out of hundreds) of the garage
  • didn’t derive a direct business interest from renting the spaces for the employees to park there
  • didn’t control the public street where the accident occurred, and
  • didn’t dictate which path Hersh had to take to get to the office building.

Therefore, Hersh didn’t assume any special or additional hazards by parking in the garage. The court wrote:

“In the circumstances of this case, an employee who is injured on a public street, not controlled by the employer, is not entitled to compensation under the Workers’ Compensation Act.”

The NJ Supreme Court reversed the lower court’s ruling and denied Hersh workers’ comp benefits.

What do you think about the decision? Let us know in the comments.

(We also recently wrote about another similar case in Pennsylvania.)

(Cheryl Hersh v. County of Morris, NJ Supreme Court, No. 071433, 4/1/14)

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