On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Bischoff, Petrella and Brody. The opinion of the Court was delivered by Bischoff, P.J.A.D.
Hornyak v. Great Atlantic & Pacific Tea Co., 63 N.J. 99 (1973) and Wyatt v. Metropolitan Maintenance Co., 74 N.J. 167 (1977) stand for the proposition that injuries sustained by employees on a lunch break, while away from the employer's premises to obtain food not available on the premises are compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 et seq. We are required to determine in this appeal whether this holding has been changed by the statutory revision of the Workers' Compensation Act effected by L. 1979, c. 283, specifically the new definition of employment now provided by N.J.S.A. 34:15-36 which reads:
Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment excluding areas not under the control of the employer; provided, however, when the employee is required
by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.
The issue is presented by the following facts.
Plaintiff, Maureen Ward, and defendant, Nadine Davidowitz, were employees of Dr. Munir Ahmed on October 2, 1980. On that date they were returning to work from a lunch break in a car operated by Davidowitz. Plaintiff was a passenger in the front seat. The vehicle was involved in a collision and plaintiff sustained multiple injuries as a result of the accident. Plaintiff filed a complaint alleging that Nadine Davidowitz (and the owner of the car, Betty Davidowitz, on principles of agency) were liable for the personal injuries sustained by plaintiff. Defendant filed an answer asserting that plaintiff's action was barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 et seq., specifically N.J.S.A. 34:15-8 which precludes tort actions against fellow employees for injuries compensable under the act.*fn1
Defendant filed a motion for summary judgment asserting the bar of the compensation act to plaintiff's cause of action. Defendant's argument on the motion consisted of a citation to Hornyak which defendants contended "clearly states that injuries at lunchtime are compensable" and to N.J.S.A. 34:15-A [ sic -- probably should be N.J.S.A. 34:15-8] which precludes tort actions between fellow employees for compensable injuries while both are in the same employ.
The judge, without comment or a statement of reasons, granted the motion and plaintiff appeals.*fn2
Regrettably, neither party called the 1979 revision of the compensation act to the attention of the judge. Plaintiff, however, now contends the definition of employment contained in the revision (N.J.S.A. 34:15-36) is controlling and that it was error to grant defendant's motion for summary judgment.
In Hornyak the Supreme Court pointed out that the Workers' Compensation Act is "humane social legislation designed to place the cost of work connected injury upon the employer who may readily provide for it as an operating expense." Hornyak v. Great Atlantic & Pacific Tea Co., supra, 63 N.J. at 101. It noted the criteria the courts had evolved for the statutory definition of compensability for death or injury from accidents arising out of and in the course of the employment, Ibid. and the expansive nature of the ...