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Mahon v. Reilly''s Radio Cabs Inc.

Decided: July 31, 1986.

GARY J. MAHON, PLAINTIFF-RESPONDENT,
v.
REILLY'S RADIO CABS, INC., AND ROBERT C. BRAVO, DEFENDANTS, AND NEW JERSEY TRANSIT BUS OPERATIONS AND MIGUEL CRUZ, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Hudson County.

Fritz, Brody and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

[212 NJSuper Page 31] Defendants, New Jersey Transit Bus Operations (NJT) and Miguel Cruz, appeal from a judgment incorporating a jury verdict in plaintiff's favor in this personal injury action, and from an order denying the pretrial motion of these defendants

for summary judgment dismissing the complaint on the ground that plaintiff's exclusive remedy against these defendants was pursuant to the Workers' Compensation Law, N.J.S.A. 34:15-1, et seq. In appealing from the verdict, appellants contend the trial judge erred in failing to dismiss the complaint sua sponte because of the claimed failure of plaintiff to establish a duty, breach of duty or a causal relationship between their conduct and plaintiff's injury.

Plaintiff was employed by NJT at its Union City depot. On the morning of his accident, he traveled on an NJT bus, driven by defendant, Cruz, from Hoboken to his place of employment. He paid no fare as he was provided free transportation on all NJT buses as a benefit under his work contract and the Collective Bargaining Agreement between NJT and the Amalgamated Transit Union. Upon reaching the intersection of New York Avenue and 27th Street, the point where plaintiff was to get off, the bus stopped on an angle in its northbound lane of traffic, being unable to move to the curb because of parked cars. Plaintiff alighted from the bus and proceeded around the front of the bus, looked to his right and observed a car about a block away, then looked to his left but was unable to see beyond the bus because of the angle at which it had stopped. He continued across New York Avenue. When he was in the southbound lane he was struck by a taxicab which was passing the stopped bus. The issue of liability for the accident was submitted to the jury on theories of negligence, comparative negligence and proximate cause and the jury allocated responsibility for plaintiff's accident as follows: NJT/Cruz -- 75%, Reilly's Radio Cabs and the driver, Bravo -- 15%, and plaintiff -- 10%.

In denying the pretrial motion for summary judgment, the trial judge reasoned that plaintiff was not within the scope of his employment by NJT, as defined in N.J.S.A. 34:15-36, when the accident occurred because he had not reached his place of employment, he was not being paid travel time and he was not using an authorized vehicle in business authorized by his employer.

He also concluded the free commutation provided by NJT did not cause plaintiff to be in the course of his employment when struck by the car.

While conceding that the 1979 amendments to the Workers Compensation Act were designed to limit exceptions to the going and coming rule, defendants urge that the statute should be liberally construed to include the accident sustained by plaintiff as one arising out of a risk which was reasonably incidental to conditions and circumstances of his employment. It is further contended that the application of the mutual benefit doctrine compels a determination that the subject accident was compensable under the Act. We find these arguments to be unpersuasive.

Although bound by the principle requiring liberal interpretation and application of the Workers' Compensation Act, see Doe v. St. Michael's Med. Center, Newark, 184 N.J. Super. 1, 4 (App.Div.1982), we may not impute a meaning to the statutory parameters of employment contrary to the plain language and intent of the legislation. Nebesne v. Crocetti, 194 N.J. Super. 278, 281 (App.Div.1984). Adoption of appellant's argument would involve us in judicial legislation.

The pertinent provisions of the statute provide that

[e]mployment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work . . . 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; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site . . . . [ N.J.S.A. 34:15-36.]

As we observed in Ward v. Davidowitz, 191 N.J. Super. 518, 523 (App.Div.1983), the clear language of this definition is "keyed to the elimination of an employer's responsibility for accidents occurring in areas not under the employer's control ...


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