For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Handler. For reversal -- Justices Clifford and Schreiber. The opinion of the court was delivered by Pashman, J. Schreiber, J., dissenting. Justice Clifford joins in this opinion.
[74 NJ Page 168] On the afternoon of August 7, 1972, petitioner, Keith Wyatt, was robbed and shot during his lunch break as he was returning to the Martland Medical Center in Newark. He was employed there as a porter by defendant Metropolitan Maintenance Co. The judge of compensation and the Appellate Division upheld his claim for benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 et seq.,*fn1 relying on Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N.J. 99 (1973). In its petition for certification, defendant suggested that this case was factually distinguishable from Hornyak because petitioner had access
at his place of employment to eating facilities where hot food was served. It argued that the lower courts erred in extending Hornyak and in refusing to bar compensation under the going and coming rule. Having granted certification, 71 N.J. 336 (1976), we now hold that Hornyak is controlling and therefore affirm.
Petitioner was 17 years old when this incident occurred. Although he worked part-time at the hospital when school was in session, during the summer he was employed full-time, working the 7 A.M. to 3:30 P.M. shift. He ordinarily was allotted 30 minutes to eat his lunch at any time between 12 noon and 1 P.M. A cafeteria in the hospital which was open to defendant's employees and hospital staff served hot meals, but petitioner ate there infrequently because he found the food unsatisfactory. Instead, he brought his own lunch or bought a sandwich at a nearby store where the food was cheaper. He was under no instructions from his supervisors to eat in the hospital cafeteria or to remain on the premises during his half hour break.
On the day of the assault, he left shortly after noon to purchase a soda and sandwich at a luncheonette which was located about two blocks from the hospital. The walk took about five minutes. He bought his lunch to "take out," intending to eat it back at the hospital. He was accosted on the street just after he left the store. His assailant drew a gun and dragged him into an alley, where he took petitioner's pocket change and then, without warning, shot him in the stomach. Subsequently he underwent surgery, but the doctors were unable to remove the bullet. Although the youth returned to work several weeks later and began school as scheduled, he was unable to participate in recreational sports. The judge of compensation awarded compensation for the period of temporary disability and found 12 1/2% partial permanent disability. The Appellate Division affirmed in an unpublished per curiam opinion.
The sole issue on appeal is whether the finding of compensability, which was predicated on our decision in Hornyak,
was correct. As both the compensation judge and the Appellate Division recognized, the facts in that case differ slightly from those present here. In Hornyak the employee worked a night shift from 9:30 P.M. to 6 or 7 A.M. and took his half hour lunch break between 1:30 A.M. and 2 A.M. Although he was required to check in when beginning work and to check out when finishing his shift, he was permitted to leave the premises to eat without checking out. 63 N.J. at 100. The employee lunchroom had vending machines from which drinks could be obtained, but no meals were served. Hence, most of the employees were in the habit of driving to eating places in neighboring towns. Id. The compensation claimant was injured in an automobile accident just a few blocks from the employer's warehouse as he was returning from his meal at a nearby diner. Id.
Writing for the Court, Justice Jacobs rejected the argument that the employee's mealtime departure from the premises was an abandonment of employment. Stressing the remedial purposes of the act and the questionable underpinnings of the going and coming rule, see Watson v. Nassau Inn, 74 N.J. 155, 161 (1977), he analogized the half hour lunch break to other brief interruptions in work which were held to be "in the course of" employment. See, e.g., Jones v. Continental Electric Co., Inc., 75 N.J. Super. 76 (App. Div.), certif. den. 38 N.J. 312 (1962) (night watchman's midnight lunch); Crotty v. Driver Harris Co., 49 N.J. Super. 60 (App. Div. 1958), certif. den. 27 N.J. 75 (1958) (smoke or breath of fresh air); Jordan v. Western Electric Co., 1 Or. App. 441, 463 P. 2d 598 (1970) (coffee break); Dependents of Pacheco v. Orchids of Hawaii, 54 Haw. 166, 502 P. 2d 1399 (1972) (cashing pay check). As he pointed out, the employee had to eat
Defendant erroneously argues that the availability of hot meals at the hospital and the act of punching out for the lunch break in this case render Hornyak inapposite. This argument overlooks the fact that our decision there was grounded on the more significant fact that an employee who interrupts his work and leaves his place of employment for lunch knows that he has not completed his workday and that he will be returning as soon as his lunch is over. His time is really not his own. 63 N.J. at 107-08. Midday meal periods have long been recognized as an integral part of the work routine. Very early in the history of the act, our courts held that accidental injuries during such breaks would be compensable if the employee was at or near his usual place of work. See Flanagan v. Charles E. Green & Son, 121 N.J.L. 327 (Sup. Ct. 1938), aff'd, 122 N.J.L. 424 (E. & A. 1939); Bolos v. Trenton Fire Clay & Porcelain Co., 102 N.J.L. 470 (Sup. Ct. 1926), aff'd 103 N.J.L. 483 (E. & A. 1927). Although we denied compensation in Robertson v. Express Container Corp., 13 N.J. 342 (1953), because the employee strayed to an unfamiliar part of the employer's premises during her lunch break, we subsequently took a much more liberal view in Tocci v. Tessler & Weiss, Inc., 28 N.J. 582 (1959), awarding compensation to an employee injured while participating in a softball game regularly held on the employer's premises.
Thus, Hornyak's rationale is fully applicable as long as the mealtime departure from the work premises is a practice permitted or countenanced by the employer and the employee's activity cannot be considered an abandonment of, or deviation from, the employment. In this instance, petitioner's injuries from the assault*fn2 ...