For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Handler. For affirmance -- Justices Clifford and Schreiber. The opinion of the court was delivered by Pashman, J. Schreiber, J., dissenting. Justice Clifford joins in this opinion.
The issue in this case is whether the accident which resulted in petitioner's total disability arose out of and in the course of his employment within the intendment of the workers' compensation provisions. Although he termed this a difficult case, the judge of compensation dismissed petitioner's claim for benefits because he found that the accident occurred after the end of petitioner's work day and while he was engaged in a personal errand off his employer's premises. This conclusion was based on the "going and coming" rule, which generally excludes employer liability for injuries sustained during routine travel to and from work. The Appellate Division affirmed and we granted certification. 71 N.J. 532 (1976).
The petitioner, Lawrence Watson, had been a waiter in the dining room and cocktail lounge of the defendant, Nassau Inn, in Princeton, New Jersey since it opened in 1937. By 1973, when he was disabled in the accident which is the
subject of this appeal, he had settled into a pattern of working at the Inn from September to April and spending the summer season at vacation resorts in Florida and the New Jersey shore. He was the senior waiter at the Inn,*fn1 and his superiors held him in high regard as an honest and trustworthy employee.
Petitioner's home was in Asbury Park, but he lived in a rented room in Princeton during most of the week because public transportation between the two towns was sporadic and inconvenient. He received no reimbursement from defendant for his travelling or living expenses, but he was permitted to arrange his work schedule to facilitate the weekly trip. The union contract required waiters to serve two meals a day for five straight days. Petitioner, however, was allowed to serve the requisite ten meals a week over six days, beginning with dinner on Saturday and extending through lunch on Thursday. This split schedule enabled him to obtain a ride home from a co-worker, Robert Miller, who also lived in Asbury Park. Miller's schedule was also arranged to allow for this Thursday car pool. On Saturday mornings, petitioner would return to Princeton by bus, arriving in time for the evening meal.*fn2
The Inn manager testified at the hearing before the compensation judge that the routine of the two men was primarily for the convenience of petitioner. However, he also stated that it worked out satisfactorily and conceded that the Inn derived benefits to the extent that it maintained petitioner's continued service.
On the afternoon of November 1, 1973 (a Thursday), petitioner left work and walked across the street to meet
Miller in a parking lot maintained by Palmer Square, Inc., defendant's parent company. Miller was given an employee sticker and permitted to park his car in the lot free of charge. Since Miller was still working, petitioner crossed the lot and walked another two blocks to his rented room. There he picked up his suitcase containing soiled work clothes which he intended to take back to Asbury Park to clean for the next week's work.*fn3 He then started back to the parking lot to meet Miller. About a half block from the parking lot, petitioner was suddenly struck by a tree which was uprooted by the stiff wind which was blowing at the time. The accident caused severe injuries, and petitioner was hospitalized and in nursing care for the next year. He did not return to work. After determining non-compensability, the judge of compensation made supplemental findings for the purposes of appeal in which he concluded that petitioner was totally and permanently disabled.
The going and coming rule is a judicially created doctrine which ordinarily precludes the award of workers' compensation benefits for accidental injuries sustained during routine travel to and from an employee's regular place of work. Ricciardi v. Damar Products Co., 45 N.J. 54, 61 (1965); O'Brien v. First Nat'l Bank & Trust Co., 37 N.J. 158, 162-163 (1963); Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 214 (1953); Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 486 (E. & A. 1938); 1 Larson, The Law of Workmen's Compensation (1972 ed.), §§ 14-19.63. Although by no means compelled under the broad statutory language defining compensable accidents as those "arising out of and in the course of [the] employment," N.J.S.A. 34:15-7, the rule was established as a
convenient formula for separating work-connected risks from those which are unrelated to employment. Gullo v. American Lead Pencil Co., supra, 119 N.J.L. at 486. It rests on the assumption that "an employee's ordinary, routine day-to-day journey" to and from work at the beginning and at the end of the day neither yields a special benefit to the employer, see Ricciardi v. Aniero Concrete Co., 64 N.J. 60, 61 (1973), Bergman v. Parnes Brothers, Inc., 58 N.J. 559, 568 (1971) (Francis J., concurring), nor exposes the employee to risks which are peculiar to the industrial enterprise. Gilroy v. Standard Oil Co., 107 N.J.L. 170, 172 (E. & A. 1930); Fenton v. Margate Bridge Co., 24 N.J. Super. 450, 457 (App. Div. 1953), certif. den. 12 N.J. 350 (1953).
The application of the going and coming rule in particular cases has spawned numerous exceptions over the years which are in keeping with the remedial objectives of industrial accident insurance. O'Brien v. First Nat. Bank & Trust Co., supra, 37 N.J. at 163. See Levine v. Haddon Hall Hotel, 66 N.J. 415 (1975); White v. Atlantic City Press, 64 N.J. 128 (1973); Strzelecki v. Johns-Manville, 65 N.J. 314 (1974); Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7 (1970); These exceptions have so proliferated that it has become commonplace to observe that they have overshadowed the basic rule. Levine v. Haddon Hall Hotel, supra, 66 N.J. at 420; Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N.J. 99, 104 (1973), and cases cited.
Doubts have been expressed as to whether the policies supporting the rule continue to be viable, see, e.g., White v. Atlantic City Press, supra, 64 N.J. at 134; Hammond v. The Great Atlantic and Pacific Tea Co., supra, 56 N.J. at 11; Ricciardi v. Damar Products Co., supra, 45 N.J. at 61. Nonetheless, a majority of the Court has never been willing to adopt an alternative formulation which allows recovery for injuries during the employee's trip to and from work. See Mayer v. John E. Runnells Hosp., 65 N.J. 324 ...