For reversal -- Chief Justice Hughes and Justices Jacobs, Mountain and Pashman. For affirmance -- Justices Sullivan and Clifford and Judge Conford. The opinion of the Court was delivered by Pashman, J. Clifford, J. (dissenting). Justice Sullivan and Judge Conford authorize me to indicate their agreement with this opinion.
[66 NJ Page 416] This workmen's compensation case calls upon us once again to decide whether an accident occurring prior to an employee's arrival on his employer's premises is within one of the exceptions to the "going and coming" rule. Plaintiff Nathan Levine was a part-time employee in the timekeeping department of respondent Haddon Hall Hotel. Mr. Levine was 69 years of age at the time of the accident giving rise to the claim herein. Although he walked with a cane outdoors, it was not necessary to aid his ambulation when indoors. He was usually at work some time between 8 and 9 o'clock in the morning, depending upon the work schedule. While plaintiff's disability did not require that he travel to and from work by cab, he preferred it to public transit as a means of preserving his strength.
On the morning of July 4, 1970, Mr. Levine had difficulty obtaining a cab.*fn1 After waiting for half an hour, his concern about not getting to work on time prompted him to call for permission to take a jitney (mini-buses which run along Pacific Avenue in Atlantic City). He alighted at the corner of North Carolina and Pacific Avenues, the intersection closest to the hotel and at the nearest point to the hotel to which he could take any public transportation. After checking to see if the traffic light was in his favor, plaintiff attempted to cross the street. He was struck by a laundry truck and received injuries which are the subject of this claim.
The main issue before the Judge of Compensation was whether the facts were an exception to the "going and coming" rule. On appeal from a determination in favor of plaintiff, the Appellate Division reversed in an unpublished opinion, holding that the facts did not fall within any of the recognized exceptions to the rule. Petition for certification was granted. 64 N.J. 325 (1974). We find the case of Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7 (1970), to be substantially controlling; DiNardo v. Newark Board of Education, 118 N.J. Super. 536, 539 (App. Div. 1972) is further supportive.
There is no doubt that had plaintiff driven to work on an ordinary workday, parked in a hotel lot one or two blocks away*fn2 and been injured in the lot or crossing an intersection
while walking to the employer's premises, he would have come within the recognized exception to the "going and coming" rule. Hammond, supra; Lewis v. Walter Scott & Co., Inc., 50 N.J. Super. 283 (App. Div. 1958); 1 Larson, Workmen's Compensation Law, § 15.14. See Zabriskie v. Erie R.R. Co., 86 N.J.L. 266 (E. & A. 1914); Rice v. Pharmaceuticals, Inc., 65 N.J. Super. 579 (App. Div. 1961); Buerkle v. United Parcel Service, 26 N.J. Super. 404 (App. Div. 1953). Since it was the Fourth of July, however, employees who normally drove to work could not use the parking lots usually reserved for them. This was the customary practice during the busy season and holidays; hotel guests utilized employee parking areas. The absence, on the day of Mr. Levine's accident, of employee use of employer-provided parking facilities distinguishes this case from Hammond and DiNardo. We feel that this is a distinction without difference.
In Hammond, supra, an employee was injured while walking to the point where she usually waited for a ride from a co-employee who parked in the company lot. As is true of plaintiff herein, Mrs. Hammond had difficulty walking. She did not want to traverse the broken sidewalk between her place of employment and the parking facilities. Instead, she proceeded to a nearby corner to await transportation. Her walk to a place other than that provided employees for parking did not preclude compensation. 56 N.J. at 15. Mrs. Hammond's injuries occurred in the course of her employment and in a place where she might normally be. The accident arose out of her employment since it resulted from a risk reasonably incidental to the employment.
Plaintiff herein should not be denied compensation because he availed himself of public transportation rather than obtaining a ride from a co-employee. DiNardo, supra. In DiNardo, petitioner had exited from a school building where she worked in the cafeteria. While en route to a bus stop, her heel caught in a crack in the sidewalk adjacent to the school. The resultant injuries were held compensable
within our workmen's compensation statutes. The court therein noted that whether she was walking along the sidewalk either preparing to enter the building or after leaving, "she was in an area where she might reasonably be, and at a time when her presence there would normally be expected." 118 N.J. Super. at 539. Whether one is walking to or from work under the facts in the instant case is of no consequence.*fn3 That the employer did not control the locus of injury is irrelevant. Lewis v. Walter Scott & Co., Inc., supra, 50 N.J. Super. at 287.
As in Hammond and DiNardo, this respondent expedited the arrival of its employees who drove to work by providing parking facilities. Those who do not avail themselves of such facilities are covered by our Workmen's Compensation Act in these circumstances. Hammond; DiNardo. We will not deny petitioner compensation because, as in the instant case, the employer desires to provide additional parking for hotel guests and to that end temporarily deprives employees of the facilities they are normally permitted to utilize.
A word as to the dissent. We need not consider here the question of whether the "going and coming" rule should be abandoned. Our holding further emphasizes that the rule should be liberally construed within the spirit of the Workmen's Compensation law. The statement in ...