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Kristiansen v. Morgan

March 12, 1998

CYNTHIA KRISTIANSEN, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF KYLE KRISTIANSEN, DECEASED AND CYNTHIA KRISTIANSEN, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
ROBERT W. MORGAN, CITY OF PERTH AMBOY, DEPARTMENT OF PUBLIC WORKS IN THE CITY OF PERTH AMBOY, ROAD DEPARTMENT OF THE COUNTY OF MIDDLESEX, AND THE COUNTY OF MIDDLESEX, DEFENDANTS, AND STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT. CYNTHIA KRISTIANSEN (WIFE), ON BEHALF OF KYLE KRISTIANSEN (DECEASED), PETITIONER-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, RESPONDENT-RESPONDENT.



A-27 September Term 1997

Argued October 7, 1997

On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Coleman, J.

This is a workers' compensation case in which the parties have taken reverse factual and legal positions. The injured worker, through his personal representative, is denying that an accident arose out of and in the course of employment with the New Jersey Department of Transportation (NJDOT) in order to escape the exclusive remedy rule of the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (Act), while the employer is admitting the compensability of that accident. The employee's representative filed a wrongful death action in the Superior Court as well as a claim petition with the Division of Workers' Compensation (Division). The core question presented is whether plaintiff should have been obligated to litigate first in the Division whether such a claim by an employee or the employee's personal representative against the employer falls within the coverage formula of the Act.

The Superior Court held that it had concurrent jurisdiction to decide the issue and refused to defer to the Division. The Appellate Division held that although the Superior Court has concurrent jurisdiction to decide compensability issues under some circumstances, the Superior Court should have decided as a matter of law that the accident in this case was compensable.

We hold that under the facts presented, the Division had primary jurisdiction to decide whether the claim presented by the personal representative against the employer was compensable. We agree with the Appellate Division that, as a matter of law, the accident here was compensable.

I.

This case arises from the tragic death of Kyle Kristiansen on October 29, 1990. On that date he was employed by NJDOT as a bridge operator. He was one of three bridge operators assigned to the Victory Bridge that spans the Raritan River from Perth Amboy to Sayerville and forms a part of a north-south state highway known as Route 35. It is owned, maintained, and controlled by NJDOT. The bridge roadway consists of four travel lanes, two northbound and two southbound, divided by a solid double-yellow line. Sidewalks protected by guardrails run along both sides of the bridge. Although the bridge itself does not have a crosswalk or traffic light, there is a traffic signal located at the intersection of Smith Street and Route 35 on the Perth Amboy side of the bridge.

As a bridge operator, decedent was responsible for opening and closing the drawbridge for seagoing vessels. The operators worked in three "shacks" located on the bridge. The drawbridge portion of the bridge and the shacks are located approximately mid-span. The only means of ingress and egress to the shacks is by foot on the pedestrian walkways on the bridge.

NJDOT employees assigned to the Victory Bridge, including decedent, regularly parked their cars in a lot located under the bridge that is owned by Hess Oil Company. In order to reach that parking lot, employees descend a wooden staircase on the northeast side of the bridge, turn right, and walk under the bridge. Although bridge employees are not required to park in the Hess lot, they have permission from NJDOT and Hess to park there.

There are also two parking lots provided by NJDOT. One is located at the intersection of Smith Street and Route 35, a quarter mile from the north end of the bridge. The other is next to the Hess lot. Bridge employees prefer to park in the Hess lot because they can see their cars from the bridge and the lot has a security guard. Cars parked in the NJDOT lots, however, are not visible from the bridge and there is no security system. In any event, no matter which lot is used, employees must walk north on the bridge to reach their cars.

On the night of the accident, decedent worked the 3:00 to 11:00 p.m. shift with two other operators: Daniel Hohwielor and John Fraykor. At the end of the shift, decedent, Hohwielor, and Fraykor met at the northwest shack to exchange information. Then they left together, traversing the bridge on foot to reach their cars parked in the Hess lot beneath the bridge.

As decedent walked northbound along the west side of the bridge at approximately 11:15 p.m., he was wearing dark clothes and carrying a duffle bag. Over his clothes, he wore a NJDOT-issued vest that had two reflective panels on the front and back, while the sides of the vest had no reflectorized panels and were open. At the end of the guardrail, decedent attempted to cross over the four traffic lanes of the bridge to reach the staircase located on the northeast side of the bridge. Fraykor and Hohwielor did not see decedent cross the road because they had jumped over the guardrail and crossed over Route 35 about midspan. Sadly, while decedent was crossing the four-lane roadway on the bridge, he was struck and killed in the center northbound lane by a car driven by defendant Robert Morgan. Decedent's body was propelled eighty-three feet from the point of impact. Morgan was not employed by NJDOT.

The bridge is lit by lampposts positioned 170 feet apart. On the night in question, however, the scene was described by all as extremely dark despite a clear sky and full moon. Fraykor testified that a couple of street lights were out. Morgan testified that prior to impact he could see no more than ten feet ahead of him. He also testified that he did not see Kristiansen until decedent was six to twelve inches in front of him.

Shortly after the accident, Harold and Maria Zayas came upon the accident scene as they drove northbound across the bridge. They described the bridge as dark with visibility of no more than twenty-five feet. Two police officers who responded reported that the roadway was not well-lit and that they needed a flashlight to examine the decedent. Nine of the twenty-four lights on the north side of the bridge were repaired during the two-day period following the accident.

Decedent's wife, Cynthia Kristiansen, individually and as administratrix of Kyle Kristiansen's estate, filed a wrongful death action in the Superior Court on October 24, 1991. She also filed a workers' compensation petition with the Division on March 13, 1992. NJDOT answered the complaint on April 21, 1992, without raising a workers' compensation defense. After investigating the workers' compensation petition, NJDOT commenced paying Ms. Kristiansen dependency benefits on January 12, 1993, retroactive to the date of the accident. She also received the statutory $2,000.00 allowance for funeral expenses. Thereafter, NJDOT repeatedly sought to have the issue of compensability of the accident adjudicated by the Division.

On February 3, 1993, three weeks after commencing payments under the claim petition, NJDOT moved for summary judgment in the Superior Court, arguing that because decedent's injuries arose out of and in the course of his employment, the Division had exclusive jurisdiction pursuant to N.J.S.A. 34:15-8. That motion was denied on April 16, 1993. The matter was scheduled to be heard in the Division on May 3, 1993, but plaintiff adjourned those proceedings until after trial in the Law Division.

In addition, NJDOT filed a motion for summary judgment, better known as an application for summary Disposition of the claim petition, with the Division. That motion was argued and denied on February 9, 1994, approximately one year after NJDOT had conceded that the accident was compensable and had commenced paying dependency benefits to the widow.

On February 17, 1994, NJDOT filed its second motion in the Superior Court for summary judgment because the earlier motion had not addressed whether the Hess lot should be deemed to be part of NJDOT's premises based on the elements of control. NJDOT requested that if summary judgment was denied, trial in the matter be delayed until after the Division had determined whether the case was compensable under the Act. Both applications were adjourned until after trial in the Superior Court, which was scheduled to commence on April 18, 1994.

Before a jury was selected, NJDOT made an oral application in the trial court to adjourn the trial until after its second summary judgment motion had been decided. Once again it sought a stay of the trial pending resolution of the issues by the Division. On April 14, 1994, the trial court granted the application to adjourn the trial until it decided the summary judgment motion, but it denied the ...


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