CP# 00-14168 Ceres v. PNC Bank
State of New Jersey
DEPARTMENT OF LABOR
Christine Todd Whitman
October 6, 2000
Raymond P. Shebell, Esq
Glenn Savarese, Esq.
re: Ceres v. PNC Bank - C.P. 2000-014168
Petitioner is an employee of respondent and on the date in question (January 21, 2000) was assigned to respondent's Holmdel (N.J.) branch. We have uncontradicted testimony to date that it snowed during daytime hours on January 21st and that the petitioner slipped and fell as he sought to get to his car at the close of work. His fall was seen by a co-employee, Lori Edwards, who was also in the parking lot and who came over and asked the petitioner if he was "okay". Within a few days petitioner experienced problems with his lower back and he sought medical treatment. The accident was "denied" as a workers’ compensation case by the respondent. An MRI taken on March 28th disclosed a large right foraminal disc herniation at level L3-4 with significant displacement and compression of the exiting right L3 nerve root. Surgery was recommended and petitioner had same (lumbar laminectomy) prior to the commencement of testimony in this matter. The court has been asked to rule at this time on the issue of compensability.
Based upon the testimony offered by the various employees of respondent who testified in this matter I make the following findings of fact with regard to the parking lot area used by respondent's Holmdel branch personnel generally and by the petitioner on the date of his accident:
a) at various times in the course of the last few years the branch personnel were encouraged if not formally instructed, to park in different areas of the parking lot which lies both in front and in back of the bank branch building;
b) ultimately, and prior to January 2000, the Holmdel branch personnel were directed to park
in the rear of the bank building, without designation of particular spaces, for security reasons. The latter were, in fact two-fold, in that (i) the employees entering the Holmdel branch when it opens each day are instructed to follow a particular procedure which includes the employee(s) first entering the building passing an "all clear" signal to the other employees before the latter enter the building. This signal is visual in nature and is viewable only from the rear door of the bank building; and (ii) for safety reasons (particularly as applicable to departure from the branch after sunset) the bank wishes its employees to use the same portion of the parking lot;
(c) the branch service manager (Ms. Linquinto) admitted that the respondent prefers that its employees park in the rear of the Holmdel branch building and that if an employee parked in front of the building on a continuing basis she would "suggest" that he/she start parking in the rear of the building so that the parking spaces in front of its building would be available for use by its customers; and
(d) no evidence was introduced to support a claim that the respondent, a lessee of its Holmdel
location, was responsible for the maintenance of the parking area surrounding its branch building.
I have reviewed several of the "parking lot" case decisions which have been issued by both the Appellate Division and the New Jersey Supreme Court in the period since the latter's opinion in Livingstone v. Abraham & Straus, Inc., 216 N.J. Super. 685 (App. Div. 1987), aff'd. 111 N.J. 89 (1988). As different factual situations have emerged in a courtroom setting, the influence of Livingstone has been redefined by the appellate courts in a series of decisions, to wit:
(i) a direction to employees that they park on the side, rather than in front, of a retail store located at the end of a strip mall was found not to meet the "control" test presented in Livingstone, supra. See Wolfman v. Topps Appliance City., Inc., A-978-97T2 (App. Div. 1999);
(ii) the compensability of injuries incurred due to a "special hazard" which existed on or at
a point of passage which is a point of entry or egress to/from the place of employment have been discussed in Ramos v. M. & F. Fashions, Inc., A-4147-95T5 (App. Div. 1997); Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 90 (App. Div. 1992), cert. denied, 133 N.J. 435 (1993); Cressey v. Campus Chefs, 204 N. J. Super. 337 (App. Div. 1985);
(iii) the "control" test presented in Livingstone, supra. does not require legalistic or formal
documentation but can be viewed as established by the conduct of the parties. Livingstone, supra.;
see also Novis v. Rosenbluth Travel, 138 N.J. 92, 95 (1994).
Section 36 was amended in 1979 to provide that employment shall begin when one arrives at his/her place of employment, and shall end when one leaves such location, "excluding areas not under the control of the employer". In the course of interpreting the latter (quoted) phrase, the Appellate Division has opined that it should be understood as meaning "including areas under the control of the employer". Cressey, supra. at p. 343. The principle of "control", as used in Section 36, thus
does not turn on exclusivity of use of an otherwise "common" parking lot area, but rather whether the employer has directed its employees to use the same and has acted historically to encourage or
enforce such "direction". Indeed in analyzing the cases in point it appears that it is the control over one's employees, rather than control over a particular portion of a parking lot, that is at the heart of the question of compensability in any given factual situation involving a parking lot injury. Witness
the language used by the Supreme Court in Livingstone, supra., at p. 106 and quoted by the Court several years later in Novis, supra. at p. 95:
Furthermore, by requiring its employees to park in a distant section of the lot, in order that customers could enjoy the convenience of parking adjacent to Abraham & Straus, appellant caused its employees to be exposed to an added hazard, on a daily basis, in order to enhance its business interests. In our view, it is entirely consistent with the fundamental purposes of workers' compensation that appellant assume responsibility for injuries thus sustained.
In the case at hand the respondent expressed, through the testimony of its employees, a clear business-related interest in having its Holmdel branch employees park in an area adjacent to the rear entrance to its building. In each case, morning and evening respectively, the reason(s) was/were related to security and safety both of the bank's assets and the safety of its employees. For this reason I find that the petitioner's injury of January 21, 2000 and the residuals thereof are compensable, and I rely on the Livingstone decision, supra. as appropriate authority for such conclusion. I distinguish Topps City, supra., on the basis that the latter case did not present a factual picture which included not only an employer's direction as to parking lot use but business practice which made that use appropriate and necessary.
I will list the case on "partial trial" status and ask the parties to complete their orthopedic and/or other examinations as quickly as possible, following which the trial will be resumed.
All fees will be reserved at this time.
Neale F. Hooley
Judge of Compensation