CP# 04-37568 Breninghouse v. Italian People’s Bakery
DEPARTMENT OF LABOR
AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
ITALIAN PEOPLE’S BAKERY
HONORABLE EMILLE R. COX
Judge of Compensation
PELLETTIERI, RABSTEIN AND ALTMAN, ESQS.
By: BRUCE P. MILLER, ESQ.
For the Petitioner
WILLIAM BARRETT, ESQ.
By: DANIEL A. TOMASULO, ESQ.
For the Respondent
In this bifurcated trial, this Court is called upon to determine whether Petitioner’s accident on December 1, 2004 falls within any of the established exceptions to the Going and Coming Rule and is therefore compensable.
The essential facts of the case are not in dispute. Respondent Italian People’s Bakery conducts business in the city of Trenton. Its business activity includes the operation of a bakery, located on Butler Street and a pastry shop located on a nearby side street named People’s Bakery Lane. Much of Respondent’s retail sales occur at the Butler Street location. There, Respondent’s employees also prepare and bake the company’s bread and cakes. At its People’s Bakery Lane location, Respondent operates a pastry shop. Testimony deduced at trial reveals that Respondent maintains a significant business presence within People’s Bakery Lane.
Apart from the street being named in its honor, Respondent operates the previously mentioned pastry shop, maintains a freezer trailer located on an adjoining “pad”- a small parcel land on which the trailer is permanently located. Because of Respondent’s volume of business, its employees make frequent trips through the alley to the Butler Street location, taking items to and from the two locations. In addition, Respondent’s trucks and vans frequently park in the alley while loading and unloading and sometimes overnight. Delivery trucks are frequently in that area serving Respondent. Respondent’s clients would sometimes park in that alley while making purchases. In short, People’s Bakery Lane has become a significant hub of commercial activity for Respondent.
Respondent is not the only business entity operating along Peoples Bakery Lane. Photographs introduced into evidence show at least one other delivery truck belonging to a neighboring merchant parked along the Lane. There is also a number of private residences whose backyards exit on to Peoples Bakery Lane. It was in this area that the accident in question occurred.
Petitioner Patricia Breninghouse was employed by Respondent as a counter sales clerk for over twenty five years. Her work day typically began at about 6:00 a.m. and ended at or around 1:30 p.m. On the day of the accident Petitioner lived at 119 Hudson Street, approximately a block and a half away. To return home from work, Petitioner could enter Butler Street, turn right to Hudson Street and turn left to her home. Alternatively she could cross Butler Street and proceed through an alley, People’s Bakery Lane, to Bayard Street, turn right to Hudson Street and turn left to her home.
On December 1, 2004, Petitioner clocked out from work at about 11:00 a.m., earlier than usual, because, according to her testimony, it was a slow day at work. She opted for the route through People’s Bakery Lane to Bayard Street. While walking along the alley, she tripped and fell, injuring her right shoulder.
Petitioner argues, with deep conviction, that Respondent, by its current level of commercial activity within the alley, exercises sufficient control of the area that the alley can be deemed an extension of Respondent’s premises, thus making Petitioner’s injury compensable. Respondent argues, with equal conviction, that the alley is a public roadway, that Petitioner had already clocked out for the day and was merely on her way home from work. Respondent contends that under these facts, Petitioner’s accident does not fall within any of the exceptions to the Going and Coming Rule.
Concerns regarding the Going and Coming Rule were specifically addressed in the 1979 Amendments to the Workers’ Compensation Act. This led to the current codification of the Rule in N.J.S.A. 34: 15-36 which states, in pertinent part:
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………
The sole issue for determination here is whether the Peoples Bakery Lane was “under the control” of Respondent at the time of the accident.
Petitioner points to several factors which, she contends, demonstrate a sufficient degree of control to satisfy the requirements of N.J.S.A. 34: 15-36. The street on which the accident occurred was named Peoples Bakery Lane in Respondent’s honor. She produced a number of photographs to support her contention that the alley had become a virtual extension of Respondent’s business premises. Some vehicles, she testified, were even parked overnight in the alley. Respondent’s customers also parked in that alley. If their vehicles were ticketed, Respondent paid the fines.
Respondent contends that Petitioner’s accident did not arise out of nor occurred in the course of her employment. It points to the fact that Petitioner’s work day had ended. She chose the route through the alley. There are alternate routes from the bakery to her home. Her choice of the alley produced no benefit to Respondent. There was testimony that Respondent unsuccessfully attempted to acquire the alley from the city. The city maintained the roadway, although, as Respondent’s witness testified, during winter months its employees would sometimes clear the snow from the area in front of its pastry shop when the city is slow getting to it.
Petitioner, citing Cressey v Campus Chefs, Division of CVI Services, Inc., 204 N.J. Super. 337, Brower v ICT Group, 164 N.J. 367, Livingstone v Abraham & Straus, Inc, 111 N.J. 89, Ramos v M&F Fashions, Inc., 54 N.J 89 (1988) and Kristiansen v Morgan, 153 N.J. 298 (1998), emphasizes that the fact that she had clocked out from work does not preclude compensability. She contends that there is ample evidence that Respondent, by its usage of the lane, generated activity that is sufficient to constitute control for purposes of the Workers Compensation Statute.
Having considered the evidence and the current state of the law on this issue, I find that Petitioner’s injury does not fall within any exception to the Going and Coming Rule and is therefore not compensable. This Court is cognizant of the fact that it should liberally construe the provisions of the Workers’ Compensation Act in favor of injured employees. Lozano v Frank DeLuca Construction, 178 N.J. 513. However, of equal significance is the fact that the 1979 amendments to the Workers’ Compensation Act include the intent to provide Employers with some relief from the far reaching effects of the Going and Coming Rule as then interpreted. The amendments sought to limit employment to the period between the employee’s arrival at the place of employment and his/her departure. As indicated previously, an employee is deemed not to have departed his/her place of employment if he/she is still in an area that is within the control of the employer.
I disagree with Petitioner in her reliance on the cases cited. In Cressey the employee was injured while using the only means of egress from the building. The use of that exit was due the employer being partly responsible for the hazardous condition that existed at the remaining exit. The loading dock in question was a part of the building in which the employer conducted business. In this case the accident occurred on the street after Petitioner had exited the building. While there was abundant evidence of Respondent’s extensive use of the roadway, there was no indication that such use in any way contributed to the accident. Petitioner was not attempting to avoid any of Respondent’s vehicles when the accident occurred. There was not even any evidence that one of Respondent’s vehicles was in the alley at the time of the accident. Petitioner testified that she was on her way home. Her only encounter in the alley was with a co-employee with whom she exchanged pleasantries. Even when asked by the Court if she was attempting to render some assistance to that co-worker who was pushing a cart of pastries, Petitioner responded that she was not. I cannot conclude that the mere use, however extensive, of a public roadway constitutes control as contemplated by the Workers’ Compensation Act.
I am equally unpersuaded by Petitioner’s reliance on Ramos and Kristiansen. Ramos involved the employee’s accident in an elevator which the employer used extensively in the course of its business. The employee had arrived customarily early at the employer’s place of business. The Supreme Court found compensability because of the employer’s extensive use of the elevator and its awareness of the employees’ use of it for entrance and egress. In Kristiansen, as Petitioner herself notes, the Supreme Court noted that the New Jersey Department of Transportation owned the entire bridge therefore it was immaterial that the employee was killed in an area where he had not been working. As noted before, Respondent in this case did not own the roadway and had no input in determining Petitioner’s route to and from work.
I attach no significance to the naming of the lane in honor of Respondent. I view this simply as an act by the City of Trenton in recognition of Respondent’s years as a stable tax paying employer within the city. To ascribe to Respondent some element of control of the street for Workers’ Compensation purposes because of such a thoughtful civic gesture by the city, goes beyond the holding of any of the above referenced cases. Similarly, I do not consider Respondent’s payments of customers’ parking tickets to be an indication of control of the area by Respondent. To the contrary, the fact that Respondents’ customers are sometimes ticketed is evidence of its lack of control by Respondent and ownership by the city. Here too I cannot conclude that a prudent act of customer service somehow imputes control to this employer.
Finally, as previously noted, much of the case law addressing the Going and Coming Rule stressed the Legislature’s intent, in the 1979 Amendments, to grant relief to employers from the then far reaching effects of the Rule. Indeed the Courts have noted that the exceptions had become so widespread that they virtually obliterated the Rule. To ascribe control, and hence compensability in this instance will be contrary to the current state of the law and against the intent of the Legislature. Such a determination can only serve to take the Rule down a second path towards oblivion. I am not inclined to do so.
This Claim Petition is dismissed for Petitioner’s failure to sustain her burden of proof. Respondent shall prepare an Order for this Court’s signature. It shall reflect a Stenographic Service Fee of $300.00 payable to John Trainor, Inc.
Honorable Emille R. Cox
Judge of Compensation