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Konitch v. Hartung

Decided: December 3, 1963.

JOSEPHINE KONITCH, AND NENAD KONITCH, PLAINTIFFS-APPELLANTS,
v.
ALBERT E. HARTUNG, DEFENDANT-RESPONDENT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiffs appeal from a Law Division summary judgment in defendant's favor. The court determined that plaintiff Josephine Konitch's common law negligence action against defendant, her fellow employee, was barred as a matter of law under N.J.S.A. 34:15-8 by reason of both parties being "in the same employ," and that her exclusive remedy was under the Workmen's Compensation Act. Nenad Konitch, her husband, suing per quod , was adjudged to have no cause of action inasmuch as his action depended upon and was incidental to his wife's.

The sole issue here is whether the trial court correctly construed N.J.S.A. 34:15-8 in holding that defendant was "in the same employ" as the injured plaintiff and therefore immune from suit under the statute.

The facts are not disputed. Plaintiff was a secretary, and defendant a technical director in the employ of Flood & Conklin

Mfg. Co. Both were allowed to park their automobiles in a parking lot made available to that company and which it permitted certain of its employees to use. At about 8 A.M. on October 27, 1961 plaintiff drove her car into the lot, parked it, and started to walk toward the exit in order to get to the office where she worked. While she was still inside the parking lot she was struck and injured by an automobile operated by defendant, who was driving to work and was about to park the car. The vehicle was owned by the employer, who provided it for defendant's business and pleasure use.

Plaintiff brought an action in negligence against both defendant and the company, and her husband sued per quod. This action against the employer was dismissed, all parties agreeing that recovery against the company lies within the exclusive area of the Workmen's Compensation Act, N.J.S.A. 34:15-8 (first paragraph).

Defendant moved for summary judgment, contending that Mrs. Konitch's exclusive remedy is under the Workmen's Compensation Act in view of N.J.S.A. 34:15-8 (second paragraph), which reads:

"If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong." (Italics ours)

This language was added to R.S. 34:15-8 (L. 1911, c. 95, § 8) by L. 1961, c. 2, § 1.

We have here a case where the injured plaintiff and defendant are employed by the same employer. Both were at the parking lot for the purpose of beginning their workday. Although defendant had the use of the company's motor vehicle for pleasure as well as business, at the time of the accident his sole reason for operating the vehicle was to get to work.

The trial court established a three-pronged test for the application of N.J.S.A. 34:15-8: it must appear that (1) plaintiff suffered a ...


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