CP# 01-013804 Bruening v. International Total Services, Inc.
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
ATLANTIC CITY, ATLANTIC COUNTY DISTRICT
|CLAIM PETITION NO.
HONORABLE COSMO A. GIOVINAZZI
Judge of Compensation
COOPER, PERSKIE, APRIL, NIEDELMAN, WAGENHEIM & LEVENSON, ESQS.
By: DANIEL J. CAHILL, ESQ.
1125 Atlantic Avenue
Atlantic City, New Jersey 08401
Attorney for the Petitioner
FREEMAN, BARTON, HUBER & SACKS, ESQS.
By: DAVID A. SACKS, ESQ.
20 Tanner Street
Haddonfield, New Jersey 08033
Attorney for the Respondent
This is a reserve decision in the case of Floyd Bruening, petitioner, versus International Total Services, Inc., respondent, C.P. #2001-013804.
This case was bifurcated for trial so that the court could determine whether or not petitioner suffered a compensable accident on February 6, 2001 when he slipped on ice while crossing the driveway of the Atlantic City International Airport as he walked toward the entranceway to the airport building.
The facts in this case are not complicated, and are not in dispute. Petitioner was employed as a pre-boarding screener by International Total Services, Inc. (hereinafter ITS). ITS had contracted with South Jersey Transportation Authority, (hereinafter SJTA), the owner and operator of Atlantic City International Airport, to perform pre-board security screen services at the airport. ITS rents operating space and office space from South Jersey Transportation Authority in connection with its contract. It has no ownership interest in any part of the airport facility, and has no maintenance responsibilities for any of the buildings, roadways, walkways or parking areas. Petitioner had been employed by ITS for approximately one year prior to February 6, 2001 when he suffered a fall while walking from the parking lot to the airport building.
It is undisputed that on October 25, 2000, Robert E. Moore, Airport Manager, issued a memorandum to all airport tenants and employees informing them that an employee parking lot had been opened by SJTA. The memo (R-1) identified the employee parking lot as being located near the rental car lot. The rental car lot is located on the right side of the airport terminal if one were facing the terminal from the general parking lot in the front of the building. The memo indicated that SJTA had plans to provide lighting in the parking lot, and would install the lighting as soon as the necessary supplies were received. The memo requested airport tenant and employees to park in the employee parking lot.
It is clear from the testimony of the petitioner, as well as the testimony of William Salsbery, a general manager with ITS in charge of pre-board screening, that ITS employees and airport employees in general were not required to park in the employee parking lot. It appears that the lot may have been unpaved. It was located behind the rental car lot, so that anyone using the employee lot would be required to walk around or through the rental car lot and onto the airport driveway before entering the walkway adjacent to the airport building. Persons using the employee lot would then have the option of entering the airport building at an entranceway on the right side of the building, at the main entranceway, or at the entranceway which was in close proximity to the screening area where petitioner was employed.
Because there was no requirement that any ITS employee park in the employee parking lot, petitioner testified that he always parked in the general parking area in front of the airport building. Petitioner prepared a diagram (P-1) which located the general or regular parking in the front of the building. This parking area is paved, and is the same parking area used by airport passengers who park their vehicles prior to flying out of Atlantic City International Airport. Between the general parking area and the airport building, there is a bus parking area which is used by buses to discharge passengers who arrive by bus at the airport facility. Beyond the bus parking area is a driveway which apparently circles the airport parking lot for passengers who are dropped off at curbside. Beyond the driveway is a sidewalk onto which the several airport entrances opened. Petitioner testified that he generally parked in the regular parking area when he came to work each morning. Petitioner’s shift started at 6:00 A.M., and he tried very hard to get in early enough in the morning so that he could park as close as possible to the terminal. He indicated that parking in the general parking area was kind of a hit or miss deal because there was no assigned parking. On February 6, 2001, petitioner parked in what appears to be the front of the regular parking area for the airport. This location is marked with an X on P-1. Petitioner testified that it was safer to park in the regular parking area. He did not have to worry about his vehicle being damaged, and there were lined parking spaces so that he could locate a designated spot.
On the date of his injury, petitioner locked his vehicle, walked through a gate in the fence and across the bus parking area. He then entered the driveway. As he was crossing the driveway, however, his feet flew up in the air and he fell onto his back, injuring his right leg. Petitioner placed a second X on P-1 designating the location where he fell in the driveway. Petitioner testified that he slipped on black ice which apparently had been missed by the company which serviced the driveway. At the point where he fell, petitioner had not yet reached the walkway in front of the building which led to the entrance closest to the scanner where he was employed.
Petitioner further testified, and Mr. Salsbery confirmed, that employees of ITS could park anywhere in the airport facility which was not restricted to employee parking. Thus, in addition to the employee parking lot, and the regular parking area where the petitioner had parked, there was also parking along the driveway as one approached the airport building. Petitioner testified that approximately 25% of the airport patrons parked in the area designated as regular parking. The rest of the patrons (apparently persons arriving later in the day) have to park down the grass fields or in the highway, indicating that the regular parking area is approximately 1,000 feet long. It is undisputed that airport patrons used not only the main door to the airport building, but also the entrances on either side of the main door. Petitioner further testified that within the main parking lot, only the 300 feet closest to the airport building was paved. The remainder of the parking lot was described as rolled stone.
Having listened carefully to both the petitioner and to the respondent’s witness, William Salsbery, and having made careful observation of both witnesses, I found both witnesses to be completely credible and accept the factual information which they provided. The only issue in this case is whether petitioner’s injury arose out of and in the course of employment, or whether compensability is barred by the coming and going rule.
LEGAL ANALYSIS AND DECISION
As a part of the 1979 amendments to the New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 et seq., the Legislature added a definition of employment to N.J.S.A. 34:15-36. In Brower v. I.C.T. Group, 164 N.J. 367 (2000), the Supreme Court analyzed this definition, discussing its purpose and the Legislative intent in adopting it.
As Justice Coleman pointed out:
“The ‘going and coming rule’ that existed in Workers’ Compensation jurisprudence since the inception of the Act was abrogated by the 1979 amendments to the Act. L. 1979, c283 sec. 12. In its place, the Legislature established the premises rule. That was accomplished by defining for the first time when employment begins and ends. Pertinent to this case, the amendment provides: ‘ 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 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. Cressey vs. Campus Chefs, Division of CVI Serv., Inc., 204 N.J. Super. 237, 342-43, 498 Atlantic 2d 1274 (App. Div. 1985). 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. Livingstone vs. Abraham & Strauss, Inc., 111 N.J. 89, 96, 543 A. 2d 45 (1988).
“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 court went on to note that, as a general rule, the Workers’ Compensation Act is interpreted as not allowing compensation for accidents occurring in areas outside of the employer’s control, citing Zelasko vs. Refrigerated Food Express, 128 N.J. 239 (1992). However, in order to determine whether an employer retains control of a particular area, the employer’s conduct regarding the situs of the accident is important. In Livingstone vs. Abraham & Strauss, Inc., supra., the court held that the meaning of control under the Act is more expansive than under formal property law concepts. Thus, it is well established that when compensability of an accident depends on control of the employer, the test is satisfied if the employer has the right of control; it is not necessary to prove that the employer has actually exercised such right. Brower vs. ICT Group, supra.; Livingstone vs. Abraham & Strauss, Inc., supra.
Petitioner advances a number of arguments in contending that his injury arose out of and in the course of employment. First, petitioner argues that but for his employment, he would not have been present at the airport facility, and would therefore not have slipped on ice in front of the terminal. In support of this argument, petitioner states in his brief: “It is reasonably probable that had petitioner not reported for work that day, his injury would not have occurred,” citing the case of Shaudys vs. IMO, 285 N.J. Super. 407, 413 (App. Div. 1995). In Shaudys, supra., the petitioner parked his car in the employee parking lot maintained by his employer. As he exited his car and turned to walk toward the workplace, he took a step with his left leg while slamming his car door shut. In so doing, he twisted his left knee, suffering injury. The employer, as the owner of the parking lot in which petitioner was injured, conceded that petitioner’s injury occurred in the course of employment, thereby acknowledging that it had custody and control over the parking lot in which petitioner was injured. Rather, respondent contended that petitioner’s injury did not arise out of employment, since no particular condition of the parking lot contributed to causing the petitioner’s injury. Respondent thus argued that the injury occurred as the result of some condition personal to the employee, and not incident to a risk of employment.
Shaudys is therefore distinguishable from the instant case, since ITS had no control over the parking lot where Mr. Breuning had parked his car, or over the driveway in which he slipped and fell. Clearly, petitioner had not yet reached his employer’s premises when he slipped and fell in the driveway prior to reaching the terminal building.
Petitioner next argues that his injury was compensable because airport management (SJTA) had ultimate control of all operations taking place on airport grounds and, as general contractor, had control of the premises for both itself and its “subcontractors.” From this contention, petitioner argues that his actual place of employment consisted of all grounds within the airport facility. In support of this contention, petitioner cites Cressey vs. Campus Chefs, Div. of CVI Services, Inc., supra. and Brower vs. ICT Group, supra. However, both these cases are distinguishable from the instant case. In Cressey, the court found that petitioner’s accident was compensable because petitioner was required to traverse a hazardous route in leaving his place of employment at Stockton State College. In Brower, the accident was deemed compensable because respondent had control of the rear stairway in which petitioner was injured.
Here, the respondent leased portions of the Atlantic City Airport Terminal where its employees perform services as pre-boarding screeners. It is undisputed that ITS neither owned, operated nor maintained any portion of the parking areas of the airport property. ITS did not require its employees to park in the employee parking lot, but permitted them to park in all of the general parking areas at the facility. Clearly, ITS employees park closer to the airport terminal building than most airport customers. As Mr. Breuning explained, he attempted to arrive early enough prior to the beginning of his shift to park as close as possible to the airport building and was thus able to park on the paved portion of the general parking area. He purposely avoided parking on the stone parking lot, in the grass fields, or even in the area designated for employees which may have been unpaved and unlighted. Thus, ITS employees are not faced with a more hazardous route in entering or leaving their place of employment, but are subject to the same hazards as members of the general public who use the Atlantic City International Airport.
It is undisputed that ITS rented office space for its employees, as well as operating area for the pre-boarding screeners at the airport. Thus, employees of ITS are required to report to work at the location where they performed their duties as pre-board screeners. Under the facts of this case, there is no basis to conclude that the actual place of employment of ITS employees was “all grounds within the airport facility.”
In furtherance of its contention that the entirety of the airport was the place of employment for ITS employees, petitioner cites the case of Kristiansen vs. N.J. D.O.T., 153 N.J. 298 (1998). Petitioner correctly notes that in that case, the Supreme Court made it clear that the “premises rule can entail more than four walls of an office or plant.” However, Kristiansen is also distinguishable from the instant case. In Kristiansen, petitioner was a toll collector for N.J.D.O.T. who left the toll booth and was walking across the traveled portion of the bridge when he was struck by a car and killed. In attempting to define control, the court noted that in using the words “excluding areas not under the control of the employer” in its definition of employment, the Legislature intended to include areas controlled by the employer within the definition. It then stated: “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. Livingstone, supra., 111 N.J. at 96. . . . Although the Act does not define ‘control’ this court has stated that control exists when the employer owns, maintains, or has exclusive use of the property. . . . Here, N.J. D.O.T. owned, maintained and controlled the bridge where decedent worked and was fatally injured.”
The court went on to state that in Kristiansen, there was never a genuine dispute about whether N.J. D.O.T. controlled the bridge.
The instant case is clearly distinguishable because ITS had absolutely no control over any of the parking lots which were owned and maintained by SJTA, nor did it have control over the driveway in which petitioner slipped and fell.
Finally, petitioner cites a case of Bradley vs. State of New Jersey, 344, N.J. Super. 568 (App. Div. 2001) in support of its contention that ITS is unable to provide adequate parking for its employees, and therefore depends on SJTA to provide such parking. The rationale of this argument is that there was no viable option for petitioner to seek alternate parking should the employee lot be filled, and therefore it was essential for ITS that its employees be authorized to park in the general lot. However, petitioner exercised that option in parking in the general lot. Petitioner could have parked in the employee parking lot, at the curb before reaching the airport building, or in the grass fields behind the general lot. All of these alternatives were open to the petitioner. Petitioner selected the front of the general parking lot because it was closest to the airport building and paved. Petitioner in fact parked in the same parking lot as other airport employees, and as customers of Atlantic City International Airport. In Bradley, the State had arranged for free parking of its employees in a parking garage, assigned the employees to certain areas in the garage, and prohibited them from using nearby State owned parking areas. The court thus concluded that the State controlled the lot and the access/egress to the lot for purposes of compensability, notwithstanding the fact that the State did not own the parking garage. This is clearly distinguishable from the instant case, where ITS had absolutely no control and gave no direction to its employees on where to park. While SJTA provided an employee parking lot, neither ITS nor SJTA directed that employees of ITS use the employee parking lot.
The instant case is similar to Novis vs. Rosenbluth Travel, 138 N.J. 92 (1994). In that case, petitioner was a reservationist for the respondent who was sent to Windsor, Connecticut to work temporarily in a branch office located in a three-story office building. An adjacent parking lot accommodated the building tenants, including employees and visitors to the branch office. A sidewalk from the parking lot to a common entry provided the sole access to the building. On the date of her injury, petitioner was walking on the sidewalk leading from the parking lot to the building’s entrance when she slipped and fell because of snow and ice that had accumulated on the sidewalk. The court held that the accident was not compensable because the respondent exercised no control over any portion of the parking lot adjacent to the office building in which its branch office was located. The Supreme Court noted that the respondent, Rosenbluth Travel, simply shared the lot with the other tenants, thereby distinguishing Novis from the Livingstone case.
Similar to the respondent in Novis, ITS was a tenant in the Atlantic City International Airport Terminal building. The general parking lot and surrounding parking areas accommodated the building’s tenants, as well as airport customers, including employees of ITS and airport customers. Similar to all other employees and airport customers, petitioner had to walk from the general parking area across the bus parking area, across the driveway and to the entrance of the airport terminal in order to enter the building. There was no employer control over the employee during the parking process. Thus, petitioner’s injury did not occur in the course of employment since he had not yet arrived at his employer’s premises inside the airport terminal in order to begin his shift on the morning of February 6, 2001.
The attorney for the respondent is hereby directed to submit a Judgment consistent with this decision.
A stenographic fee of $300, payable to State Shorthand Reporting Service, is hereby assessed against the respondent.
Cosmo A. Giovinazzi
Judge of Compensation
April 24, 2003