On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None.
Should the rule of Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N.J. 99 (1973), which established compensability under the Worker's Compensation Act for injuries occurring during a lunch break, defeat an employee's automobile accident negligence action, instituted more than two years before Hornyak was decided, against a fellow employee? The trial court answered this question affirmatively. The Appellate Division affirmed in an unpublished opinion, and we granted plaintiffs' petition for certification. 73 N.J. 41 (1976). We reverse.
The salient facts are undisputed. Plaintiff Linda L. Barone and defendant Janet L. Harra, both employees of McWilliams-Forge Company at its plant on Franklin Avenue, Denville, New Jersey, left work at noontime on May 25, 1970 to have lunch at the home of plaintiff's mother. They traveled in a motor vehicle owned and operated by defendant Harra. Upon leaving the plant their car collided with one driven by Gerard M. Ross and owned by Patricia Ross. The plaintiff suffered serious injuries.
On September 4, 1970, plaintiffs Linda L. Barone and her husband Robert J. Barone (hereinafter collectively referred to as plaintiff) filed a complaint against Janet L. Harra, Gerard M. Ross and Patricia Ross, alleging generally that the accident was due to the negligence of the defendants jointly or severally. Harra's answer denied negligence and set up a separate defense that plaintiff's exclusive remedy was under the Worker's Compensation Act. She also sought contribution from the Ross codefendants. The Ross' answer also denied negligence and likewise sought contribution from Harra.
Upon a showing that Gerard M. Ross was in the armed forces, the matter was placed on the military list in January 1971. In October 1974 defendant Harra moved for summary judgment on the ground that plaintiff's claims were barred by N.J.S.A. 34:15-8. That statute precludes tort actions against fellow employees for compensable injuries occurring while both persons are in the same employ, except for intentional wrongs. The trial court granted the motion, finding compensability was warranted under the principle enunciated by this Court in Hornyak on May 21, 1973. The trial court did not address plaintiff's contention that the Hornyak rule was inapplicable because it had been announced more than two years after the accident and that plaintiff had therefore been foreclosed from filing a petition for worker's compensation, N.J.S.A. 34:15-41 and -51.
The Appellate Division also concluded that Hornyak controlled. Additionally, it perceived no "existing authority conferring power on this court to extend the principle of retroactivity to the present situation so as to bar the Workmen's Compensation defense and permit the claim to proceed."
In Hornyak we held that an employee, injured in an automobile accident while returning to his place of employment from a nearby diner where he had gone to eat during a lunch break, suffered a compensable accident which arose out of and in the course of his employment. We reasoned that "the
plaintiff's departure for his lunch was no more an abandonment of his employment than were the departures in the coffee break cases," 63 N.J. at 106, and that "[b]ut for his employment * * * he would not have been subjected to the particular highway risks from which the accident on his return trip ensued." Id. at 108. The Hornyak rule was elaborated in Wyatt v. Metropolitan Maintenance Co., 74 N.J. 167 (1977). There Justice Pashman commented:
Both the trial court and the Appellate Division correctly concluded that plaintiff's injuries would be compensable if Hornyak applied. Plaintiff Linda Barone and defendant Harra, who had been working at the McWilliams-Forge Company, were taking their lunch recess period at the time of the accident. At the end of that respite they had expected to return to work. The luncheon break did not constitute such an interruption of employment service so as to sever the course of employment. The injuries plaintiff incurred arose out of and in the course of employment.
If an employee experiences a compensable accident, he may not maintain a common law tort action against a fellow employee arising out of the same incident. This result is mandated by N.J.S.A. 34:15-8, which provides that if an injury is compensable, a person in the same employ shall not be liable on account of such injury, except for an intentional wrong. Thus, a fellow employee, such as the defendant Harra, would be immune from responsibility. Wellenheider v. Rader, 49 N.J. 1, 9 (1967); Bergen v. Miller, 104 N.J. Super. 350, 353 (App. ...