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Livingstone v. Abraham & Straus Inc.

Decided: April 9, 1987.

MARLENE LIVINGSTONE, PETITIONER-APPELLANT,
v.
ABRAHAM & STRAUS, INC., RESPONDENT-RESPONDENT



On appeal from the Division of Workers' Compensation.

Michels, O'Brien and Landau. The majority opinion of the court was delivered by Landau, J.s.c. (temporarily assigned). Michels, P.J.A.D. (dissenting).

Landau

Petitioner-appellant Marlene Livingstone appeals from a judgment of the Division of Workers' Compensation which dismissed her petition for benefits for allegedly work-connected injuries. We conclude that the judge of compensation erred in dismissing the petition, and accordingly reverse and remand.

FACTS

After parking her car in a distant section of the Monmouth Mall parking lot in Eatontown, Livingstone was struck by a co-employee's car as she walked across the lot to her job at the Abraham & Straus Department Store (A & S) operated by respondent.

A & S is a tenant at the Monmouth Mall, which houses three other major department stores and numerous smaller shops. It does not maintain the parking lot nor does it exercise any conventional supervision over any portion of the lot, all of which is available for the common use of tenants and their patrons. No section of the lot is singled out for use by A & S employees to the exclusion of patrons or employees of other stores. Nonetheless, petitioner's uncontradicted proofs showed that she and her co-employees were instructed to park only in the outlying reaches of the lot in order to make more convenient parking spots available for A & S customers. A store guard monitored the designated employee entrance and actively insured compliance with this rule.

THE LAW

The compensation division judge held that Livingstone's accident did not arise out of and in the course of employment because of her failure to sustain the jurisdictional burden of proof that A & S controlled the parking lot. Inasmuch as Livingstone, "at the time of her injury, was in an area common to the public . . ." the compensation judge determined, ". . . that since the respondent did not control the parking lot and was only a tenant at the Monmouth Mall, that the petitioner has failed to sustain the burden of proof as to control of the parking lot" required by N.J.S.A. 34:15-36.*fn1 The petition was accordingly dismissed at the conclusion of the compensability phase.

Livingstone here presents the following arguments:

POINT I -- WHERE AN EMPLOYER IS A TENANT IN A SHOPPING MALL THE PARKING LOT IS UNDER THE CONTROL OF THE EMPLOYER RENDERING COMPENSABLE AN INJURY SUFFERED BY AN EMPLOYEE THEREIN PURSUANT TO THE WORKERS' COMPENSATION ACT.

A. The Workers' Compensation Act does not require exclusive control of an area in order to render an injury occurring therein as compensable.

B. The premises rule does not deny compensation for an injury, such as this, which occurs when the employee attempts to enter the employer's premises and is thereby subjected to an unusual risk created by the employer.

POINT II -- RESPONDENT HAS PRESENTED NO TESTIMONY TO SUPPORT ITS CONTENTION THAT RESPONDENT DID NOT EXERCISE CONTROL OVER THE ...


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