New Jersey Legislature and Supreme Court Face Off on Compensability of Accidents in Parking Lots
Public and private sector employers are scratching their heads, trying to figure out whether accidents in certain parking lots are work related or not in light of the New Jersey Legislature’s passage of S771 on January 10, 2022. This legislation was passed specifically to overturn the New Jersey Supreme Court decision in Hersh v. County of Morris, an important 2014 parking lot decision which rankled attorneys representing claimants.
The proponents of S771 intended to expand compensability for injuries in parking lots as well as for travel from the parking lot to the work site and back at the day’s end. The new law amends N.J.S.A. 34:15-36 by adding the following language:
Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of the work period.
To understand why this language constitutes a reversal of the Supreme Court decision in Hersh, one must understand the facts in that case. Mrs. Hersh was employed by the County of Morris as a Senior Clerk in the Board of Elections. In 2004 the County assigned her free parking at a private garage on Cattano Avenue located about two blocks from the Administration Building where she worked. The garage contained several hundred parking spaces of which the County rented about 65 for its employees. Hersh was unable to park next to the county building in the county parking lot because she lacked sufficient seniority. She was not given an assigned space in the Cattano garage.
On January 29, 2010, Ms. Hersh parked her car in the Cattano Garage, exited on Cattano Avenue, and began walking one-half block to Washington Street. As she crossed Washington Street, she was struck by a motor vehicle that ran a red light. The Supreme Court found that the injury was not compensable. The Court found that Cattano Garage was not owned by the County, not part of the County’s premises and not controlled by the County. The Court also said that there was no special benefit to the County by making 65 spaces available to its employees and no special hazard to Ms. Hersh by parking in the Cattano Garage.
After this decision, claimants’ attorneys began to lobby for new legislation that would negate the holding in Hersh. The result was S771, which makes it irrelevant that the County did not own or control the Cattano Garage. Nor would it matter that there was no special benefit to the County in providing parking off site for some employees. If an accident like this happens today, it will be compensable because the test now is whether the employer “designates or provides a parking area for use by an employee.” The walk from the garage to the work site is also covered, so any injury on the public street or sidewalk in getting to work is also covered under the new law.
Where does this leave employers? The basic rule remains: injuries taking place on premises owned or controlled by the public entity are covered. N.J.S.A. 34:15-36 states “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 New Jersey Supreme Court recently explained in Lapsley v. Township of Sparta (2022) what is meant by the phrase “excluding areas not under the control of the employer.” It said:
[t]he 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.
In the Lapsley case decided January 18, 2022, Mrs. Lapsley, a librarian for the Township, left work early when the Township closed the library due to a snowfall. Her husband picked her up. Mr. Lapsley parked his car in the lot adjacent to the library. The Lapsleys stepped off the library curb, walked about 18 feet along the parking lot when Mrs. Lapsley was struck by a snowplow owned by the Township and operated by a Township employee. The accident caused significant injuries to Mrs. Lapsley’s leg, requiring multiple surgeries and leaving her leg disfigured. The Township of Sparta owned the parking lot. The school board and public also used it. The Supreme Court held that Mrs. Lapsley’s injuries were compensable under workers’ compensation and therefore she could not sue the Township employee whose snowplow ran into her. Workers’ Compensation is the exclusive remedy for someone injured at work.
So what is the impact on public employers in light of S771?
- Suppose a municipality has insufficient parking for its employees. It tells Jim Addezio, a new hire, that he can park in the public street and the Township will pay for the cost of metered parking. Jim falls in the snow breaking his leg while walking to the town hall. Is this compensable? The answer is almost certainly yes. That is exactly what the proponents of S771 wanted to achieve. They would argue that the municipality “provided” parking by paying for the cost of metered parking. Judges of Compensation are certain to find this compensable. Before S771, this would not be compensable.
- In the above scenario, suppose the municipality did not agree to pay for the metered parking and Mr. Addezio had to incur that cost himself? All the Township Administrator said is this: “Jim, you can park wherever you want.” In that case the municipality should prevail by arguing that the injury occurred on a public street and Mr. Addezio had not arrived on the municipal lot. The injured worker may argue that the public street is owned by the municipality, but it is clearly not the same as the municipal parking lot.
- Suppose a municipality enters into a lease with a private garage for some its employees because there is insufficient parking space at the township lot. Mr. Addezio falls in the private garage breaking his leg. Will that injury be covered? The answer is yes because the municipality entered into the lease with the private garage and will be deemed to be providing parking for its employees under the new law.
- In the above example, suppose Mr. Addezio parks in the private garage and then walks toward the municipal building but stops on the way to get a cup of coffee, resumes walking to the municipal building and falls in front of the coffee shop breaking his arm. Is that injury compensable? Defense will argue against compensability on the ground that this is a major deviation. The visit to the coffee shop had nothing to do with work. Claimants’ counsel will argue that this was a minor deviation because Mr. Addezio had resumed his route to the municipal building. It will be interesting to see how judges deal with these deviation issues. These kinds of issues are certain to occur in the coming years.
The goal behind S771 is to make virtually every parking lot injury compensable in New Jersey. This is part of a trend of legislation passed in recent years expanding coverage under workers’ compensation. Nonetheless, private sector employers who are tenants in a building and do not own or control their parking lots should not be covered by S771 for parking lots injuries.
For municipal employers, if the municipality owns or controls the parking area, the injury will be deemed compensable. Under the new law, if the public entity leases space from a private garage, the injury will be found to be compensable. If the public entity pays for parking off site, the injury is almost certain to be found compensable. To the extent that the employer “designates” where employees should park, the injury will be compensable. Employees who park in off-site parking areas provided by the public entity will be covered walking to and from the parking area and returning to the parking area at the end of the day.
By: John H. Geaney, Esq.
Capehart Scatchard