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Dinardo v. Newark Board of Education

Decided: March 29, 1972.

JOSEPHINE DINARDO, PETITIONER-RESPONDENT,
v.
NEWARK BOARD OF EDUCATION, RESPONDENT-APPELLANT



Labrecque, Kolovsky and Allcorn.

Per Curiam

Respondent Newark Board of Education appeals from a determination of the Essex County Court which, after a de novo consideration of the record, affirmed a judgment of the Division of Workmen's Compensation holding petitioner Josephine DiNardo entitled to benefits for accidental injuries sustained on March 9, 1967.

On the day of the accident petitioner was employed by respondent as a cafeteria worker at the Vailsburg (Newark) High School. Her hours were from 9 A.M. to 3 P.M. On the day in question she had just exited the school building and was walking on the adjacent sidewalk en route to a bus stop when her heel caught in a crack in the sidewalk, causing her to fall and sustain the injuries on which her claim is based. It was conceded that the sidewalk in question was part of the public right-of-way and that it was immediately adjacent to the school premises.

Originally the judge of compensation, believing that he was controlled by Gullo v. American Lead Pencil Co. , 119 N.J.L. 484 (E. & A. 1938), had dismissed the petition. With the coming down of the opinion in Hammond v. The Great Atlantic & Pacific Tea Co. , 56 N.J. 7 (1970), the dismissal was vacated and judgment was entered for petitioner.

In his oral opinion the judge of compensation found that the statutory test for compensability had been met. He reasoned that if the parking lot maintained by an employer was part of its premises for purposes of workmen's compensation, the sidewalk abutting respondent's premises in the instant case should be considered a part thereof for the same reasons, especially where, as here, its state of disrepair may have played a causative role in petitioner's injury. Applying the basic test of compensability, he found that petitioner's accident

arose out of the employment since it resulted from a risk reasonably incidental thereto, to wit: a crack in the sidewalk over which she was required to travel in making her work-connected trip to and from work, and that it arose in the course of her employment since she was then doing what one so employed might reasonably do within the time during which she was employed and at a place where she might reasonably be during that time. Hammond v. The Great Atlantic & Pacific Tea Co., supra , at 11.

On appeal the County Court judge affirmed the action of the Division in all respects.

The issue before us is a rather narrow one. We need not determine whether petitioner's injuries would have been compensable had they been sustained as she was boarding a bus at a bus stop some two blocks away. We are concerned only with the compensability of injuries sustained by her when, while in the process of leaving the work premises at the conclusion of her work, she falls on the adjacent sidewalk she is required to traverse in doing so.

In Hammond the employer had provided a parking lot 300 feet away, but petitioner had relied upon her husband or public transportation to get to work. At the time of the accident she had been riding with a fellow employee who parked her car in the parking lot. It was petitioner's custom to walk to a point some distance from the building where she worked and across the street from it and there wait to be picked up by her co-employee. On the day of the accident, while en route to the point where she was to be picked up, she fell and sustained the injuries for which she claimed compensation.

In Hammond the court found it unnecessary to determine whether the "going and coming" rule was to be abandoned. It held that the basic test of compensability was whether the injury arose out of and in the course of the petitioner's employment and noted that the going and coming rule was a "subordinate doctrine" which had "produced many harsh results." It pointed out the extent to which the rule had been eroded, noting that most courts treated an injury occurring

in the public street between the plant and the parking lot of the employer as compensable. See Lewis v. Walter Scott & Co., Inc. , 50 N.J. Super. 283 (App. Div. 1958). It ruled that the going and coming rule was to be construed liberally, within the spirt of the workmen's compensation legislation and that, so viewed, the accident arose out of and in the course of petitioner's employment and her injuries were compensable. Accord, Bergman v. Parnes Brothers, Inc. , 58 N.J. 559, 566-567 (1961). See also Ricciardi v. Damar Products Co. , 45 N.J. 54, 61 (1965); O'Brien v. First Camden Nat. Bank & Trust Co. , 37 N.J. 158, 163 (1962); Daly v. Edwards Engineering Corp. , 107 N.J. Super. 183, 186 (App. Div. ...


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