Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Livingstone v. Abraham & Straus Inc.

Decided: June 30, 1988.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 216 N.J. Super. 685 (1987).

For affirmance -- Chief Justice Wilentz and Justices Handler, O'Hern and Stein. For reversal -- Justices Clifford, Pollock and Garibaldi. The opinion of the Court was delivered by Stein, J. Clifford, Justice, dissenting. Pollock and Garibaldi, JJ., join in this opinion.


[111 NJ Page 90] In this appeal as of right, R. 2:2-1(a), we address for the first time a 1979 amendment to the Workers' Compensation Act codifying the "going and coming" rule of workers' compensation liability. Respondent, Marlene Livingstone, was injured in the parking lot at the Monmouth Mall on her way to work at appellant, Abraham & Straus, a mall tenant. The Division of Workers' Compensation denied benefits, but a divided Appellate Division reversed, Livingstone v. Abraham & Straus, 216 N.J. Super. 685 (1987), disagreeing over the application of the 1979 legislation, N.J.S.A. 34:15-36, to the facts of this case. We find that respondent's injury resulted from an accident "arising out of and in the course of [her] employment," N.J.S.A. 34:15-7, and conclude that it was not the sort of incident the amendment sought to render noncompensable. Hence, we affirm the decision of the Appellate Division directing that benefits be awarded.


Respondent, Marlene Livingstone, began working for appellant, Abraham & Straus, in 1979 at its Eatontown branch, where it is one of four anchor tenants in the Monmouth Mall. In 1981, at the time of the events at issue in this case, respondent worked thirty-seven-and-a-half hours per week combining clerical and sales duties. On the morning of July 14, 1981, respondent drove to work, arriving at roughly 9:30 a.m. She parked in a far corner of the mall parking lot, where all Abraham & Straus employees had been directed to park. As she proceeded from her car to the employees' entrance, respondent was struck by a car driven by a fellow-employee, sustaining injuries for which compensation benefits are now sought.*fn1

Appellant neither owns nor rents a specific portion of the mall lot for the exclusive use of its customers or employees, but rather, as part of its rental agreement with the mall owner, pays for general access to the mall's parking facilities. Further, appellant has no maintenance responsibilities with respect to any portion of the parking lot.

The directive instructing employees to park at the outermost edge of the mall lot had been issued by appellant in the form of a written notice from the branch operations manager, and was posted at the employees' entrance. These instructions had been in effect during the entire tenure of respondent's employment. The undisputed purpose of the parking directive was to ensure that the closer, more convenient parking spaces remained available for appellant's customers, and thus was entirely for its benefit. According to respondent's undisputed testimony this section of the lot was more than adequate to handle customer

parking, such that customers never would park in or near the area designated for the employees, except perhaps during the period just before the holidays.

Appellant characterized the directive as an unenforceable request, seeking only its employees' voluntary cooperation. Respondent, however, noted that employees arriving before the store opened would never park in the area reserved for customers, since it would be obvious to management that the cars were not customers', and further asserted that the mandate, in any event, would have been enforced by an Abraham & Straus security guard who would direct non-complying employees to move their cars to the designated location. The compensation judge made no findings on this point, but for purposes of our decision the dispute is immaterial, and we accept appellant's characterization of the directive's implementation.*fn2

Respondent filed a claim petition with the Division of Workers' Compensation shortly after the accident. Appellant denied that the employee's injuries were the result of a compensable incident. The compensation judge found in appellant's favor. Citing N.J.S.A. 34:15-36, the judge determined that the accident did not arise out of and in the course of employment. He concluded that respondent had not established "actual" or "exclusive" control of the parking lot, and therefore had failed to prove by a preponderance of the evidence that she had suffered

a compensable injury. The relevant portion of the statute states:

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; 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 or the authorized operation of a vehicle on business authorized by the employer. * * * [ N.J.S.A. 34:15-36, added by L. 1979, c. 283, ยง 12.]

The compensation judge added that "at the time of her injury, [respondent] was in an area common to the public from any area leased or controlled by [appellant]."

The Appellate Division, in a split decision, reversed. Livingstone v. Abraham & Straus, supra, 216 N.J. Super. 685. The court acknowledged that the above-cited provision, enacted in 1979 as an amendment to the Workers' Compensation Act, manifested a clear legislative intent to restrict the compensability of injuries occurring during an employee's trip to or from work. Id. at 690. However, Judge Landau, writing for the majority, emphasized the need for a case-by-case approach, taking into account both the general remedial mandate of the Act itself, and the specific objectives underlying the 1979 legislation. Id.

The court rejected as too narrow the property-minded interpretation of "control" implicitly employed by the compensation judge:

We think that the inquiry into control, however, cannot rationally end with mere considerations of property law responsibility in those limited situations where, as here, an employer actively extends, or continues, his control over the person of the employee beyond the entrance door. Indeed, if degree of "control" over the property of the parking lot is a meaningful aid in resolving whether an injury has arisen out of and in the course of employment, it must be because such control is deemed to affect indirectly the employee, not because it is an inherent incident of compensability. [ Id. at 691.]

The majority also reasoned that although the entire lot was open to patrons as well, appellant's employees were subjected to risks in excess of other users because "the hazard of traversing an expansive parking area is a function of the distance between the parking spot and the employer's store." Ibid. In sum, the court considered the control exercised over the employees to be the determinative factor, as it noted that in the absence of the parking directive -- i.e., had the employees been free to park anywhere in the lot -- control would not have been established, thereby precluding compensation under N.J.S.A. 34:15-36. Id. at 692.

Judge Michels, dissenting, would have affirmed the findings and decision of the compensation judge, concluding that the plain meaning of the statute barred coverage. Id. at 693, 695-97. Taking note of the opinion in another workers' compensation case, Cressey v. Campus Chefs, Div. of CVI Servs., Inc., 204 N.J. Super. 337 (App.Div.1985), Judge Michels conceded that the statute does not require exclusive control of the area where the accident occurs before compensation is proper. 216 N.J. Super. at 696. He argued, however, that respondent had not established control in this case because appellant "did not own, maintain or even have exclusive use of the [parking] area" and had no "power or authority to manage, direct, regulate or supervise [the area]." Ibid. Appellant's mere right to use the parking facilities was insufficient, stated Judge Michels, because the "right to use is not equivalent to control." Ibid.

By virtue of the dissent, appellant, Abraham & Straus, invoked its entitlement to an appeal as of right in this Court. R. 2:2-1(a).


The Workmen's Compensation Act "is humane social legislation designed to place the cost of work-connected injury on the employer who may ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.