On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Bischoff, King and Polow. The opinion of the court was delivered by King, J.A.D.
This action was brought by plaintiff against Saint Michael's Medical Center of Newark to recover common-law damages for injuries sustained as a result of a sexual attack and robbery on July 22, 1978, a Saturday morning. Plaintiff, a medical technologist employed at the hospital, was attacked in her room on the third floor of the hospital dormitory, the oldest building in the Saint Michael's medical complex located on Central Avenue in downtown Newark. Plaintiff's claim was predicated on the alleged lack of security at the facility.
Plaintiff had occupied the room for several years under a written lease and had paid $54.16 a month rent which was deducted from her biweekly pay checks.*fn1 She was not required
to live in the dormitory as a condition of employment. The parties stipulated that she lived in the dormitory "because at the time she got the job [in 1974] she did not know where else to live, having no immediate friends or relatives in this area and being unfamiliar with the area at the time she came here. She couldn't then or at any other time have chosen or had the resources to live elsewhere." Only hospital employees could live in the dormitory building. Plaintiff was not on duty or on call the Saturday of the attack. She usually worked in her technologist job Monday through Friday but had worked on Saturday on occasion.
This appeal is taken from a dismissal of plaintiff's complaint following defendant's motion before trial because her exclusive remedy against defendant was under the Workers' Compensation Act.
If the circumstances of plaintiff's injury entitled her to a workers' compensation remedy, she is barred under N.J.S.A. 34:15-8 from bringing a civil action. See Seltzer v. Isaacson , 147 N.J. Super. 308, 313 (App.Div.1977). The question in this case is whether plaintiff's injury arose "out of and in the course of employment" under N.J.S.A. 34:15-7. Even though in this case the injured employee is resisting compensability, presumably in order to obtain a larger recovery in a civil action, we are bound by the principle requiring liberal interpretation of the Workers' Compensation Act in order to afford a certain remedy. "Consistency requires us to use the same legal yardstick. . . ." Brooks v. Dee Realty Co., Inc. , 72 N.J. Super. 499, 508 (App.Div.1962).
In holding that plaintiff's accident was compensable the Law Division judge relied primarily on Barbarise v. Overlook Hospital Ass'n , 88 N.J. Super. 253 (Cty.Ct.1965), which involved a similar situation. In that case a petition for workers' compensation
benefits had been filed by a nurse who was injured when she fell on stairs when returning from sun bathing on the roof of the residence hall provided by her employer. She was not required to live in this residence, which her employer had provided for some of its employees. At the time of her injury she was off duty and not on call, but her employer had been known to ask an employee to work after hours if the need arose. In affirming an award of compensation to the employee the court found no basis for distinguishing this case from other cases which had supported compensability for injuries suffered by an employee while engaged in recreational activities sponsored by the employer. See Ricciardi v. Damar Products Co. , 45 N.J. 54 (1965) (petitioner killed while returning home from company picnic); Cuna v. Avenel Bd. of Fire Com'rs , 42 N.J. 292 (1964) (volunteer fireman injured playing on fire company softball team); Complitano v. Steel & Alloy Tank Co. , 34 N.J. 300 (1961), rev'g on dissent 63 N.J. Super. 444, 456 (App.Div.1960) (employee injured while playing on company-sponsored softball team). Even though the employees in these cases were not on duty or on call, the injuries were compensable "so long as the activity leading to the injury was 'reasonably incidental to the employment.'" Barbarise, supra , 88 N.J. Super. at 258. That court analyzed a number of cases in which courts had, in one form or another, applied the "mutual benefit doctrine" in determining whether an injury was work-related. Id. at 258-261. Under this doctrine an injury will be found compensable where both the employer and the employee receive benefits from the activity in which the employee was engaged when the injury occurred. See, also, Strzelecki v. Johns-Manville , 65 N.J. 314, 317-320 (1974), where the employee was killed in an auto accident on the way to study for graduate courses encouraged and paid for by the employer.
Applying these same concepts, the Barbarise court reasoned:
Although the petitioner in the instant case was not performing any of her duties as a practical nurse and I find that the evidence does not establish that she was "on call," she was, as ...