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Brower v. Ict Group

July 13, 2000

SANDRA E. BROWER, PETITIONER-APPELLANT,
v.
ICT GROUP, RESPONDENT-RESPONDENT.



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

Argued March 27, 2000

On certification to the Superior Court, Appellate Division.

This workers' compensation case raises the issue of whether an employee, who has punched out at the end of the workday and falls while descending steps that lead from the street only to the injured worker's employer's offices in a multi-tenant office building, has sustained a compensable accident under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (Act). The Division of Workers' Compensation (Division) and the Appellate Division held that the accident is not compensable. We granted the worker's petition for certification, 162 N.J. 486 (1999), and now reverse.

I.

The controlling facts were stipulated by the parties. Petitioner Sandra Brower, a forty-year-old telemarketer employed by respondent ICT Group, was injured on May 9, 1997 when she fell down concrete stairs within a two-story multi-tenant building. ICT Group was located on the second floor of the building, with three accesses to its leased premises. An elevator was centrally located in the front of the building and opened across from the main entrance to ICT Group's offices. There was a front stairway accessory to the elevator. In addition, there was the back stairway on which petitioner fell.

The rear stairway opened only into ICT Group's leased premises and the basement, functioning much like a fire escape. It had an outside entrance on the ground level. It was a fully enclosed stairway with its top landing carpeted with the same floor covering as the inside of ICT Group's offices. There was a doorway that led directly from the top landing into ICT Group's premises. This rear stairway was used by ICT Group employees for ingress and egress to the offices and to take smoking breaks on the carpeted landing. ICT Group had no special requirements or prohibitions concerning which means of ingress and egress were used by employees. It had no customers or clients who visited the premises because it provided telemarketing services. The rear stairway and its top landing were cleaned by the landlord. The record does not inform us who cleaned ICT Group's offices. Employees frequently propped open the door to that stairway for easy access.

Petitioner sustained her accident after she had punched out on the time clock. After stepping through the ICT Group's doorway to the rear stairway, she fell from the top landing of the stairway.

The Judge of Compensation found that under both the "going and coming rule" and the "premises rule" the accident was not compensable. He reasoned that the 1979 amendments to the Act represented a legislative mandate to contain the costs of workers' compensation by limiting the judicially-created exceptions to the going and coming rule. He was of the view that the Legislature accomplished that purpose by specifically establishing a premises rule that defined when employment begins and ends. The Appellate Division, in an unpublished opinion, affirmed substantially for the reasons expressed by the Judge of Compensation.

II.

Petitioner argues that the rear stairs were essentially part of her employer's leased premises and that her employer controlled that stairway within the meaning of the Act. She maintains that the accident is compensable because she had not left her place of employment. The respondent, on the other hand, contends that based on the "premises rule" the accident is not compensable because petitioner had left her place of employment and the accident occurred in a place the employer did not control.

A.

Only two years ago, we stated succinctly the overriding legal principles that inform our determination of whether the accident transpired on ICT Group's premises or whether it falls within the going and coming rule. We stated:

The "going and coming rule" that existed in workers' compensation jurisprudence since the inception of the Act was abrogated by the 1979 amendments to the Act. L. 1979, c. 283, § 12. In its place, the Legislature established the premises rule. That was accomplished by defining for the first time when employment begins and ends. Pertinent to this case, the amendments provide: "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." N.J.S.A. 34:15-36.

The premises rule is based on the notion that an injury to an employee that happens going to or coming from work arises out of and in the course of employment if the injury takes place on the employer's premises. Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 342-43, 498 A.2d 1274 (App. Div. 1985). The premises rule "limits recovery to injuries which occur on the employer's premises . . . by confining the term `course of employment' to the physical limits of the employer's premises." Id. at 342, 498 A.2d 1274. Thus, unless one of the statutory exceptions not implicated here is triggered, an employee who is not physically on the employer's premises is not technically in the course of the employment. Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 96, 543 A.2d 45 (1988).

The Legislature used the phrase "excluding areas not under the control of the employer" in its definition of employment because it intended to include areas controlled by the employer within the definition. That phrase was intended to make clear that the premises rule can entail more than the four walls of an office or plant. [Kristiansen v. Morgan, 153 N.J. 298, 316 (1998), modified for other reasons, 158 N.J. 681 (1999)].

The premises rule is important because "as a general rule we interpret the [Act] as not allowing compensation for accidents occurring in areas outside of the employer's control." Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992). The fact that petitioner had punched out on the time clock does not preclude compensability because the situs of the accident and the employer's control of that location are the dispositive factors. See Kristiansen, supra, 153 N.J. at 317 (stating "an employee who punches out on the time clock at the [employer's] front entrance and is injured while walking through the plant to reach his or her car parked in a rear parking lot" sustains a compensable accident); Cressey supra, 204 N.J. Super. at 343 (stating duties of maintenance do not indicate control). Thus, the premises rule determines whether petitioner's accident is compensable. The narrow issue is whether ICT Group controlled the stairway on which petitioner fell. Whether the employer leased that stairway is not a relevant consideration. 1 Arthur Larson, The Law of Workmen's Compensation § 15.43 (1990). The employer's conduct regarding the situs of the accident, however, is an important consideration in determining control. See generally Ramos v. M & F Fashions, Inc., 154 N.J. 583, 591-93 (1998) (analyzing employer's conduct regarding a freight elevator in determining whether employer exercised control).

B.

The meaning of "control" under the Act is more expansive than under formal property law concepts. Ramos, supra, 154 N.J. at 592; Livingstone, supra, 111 N.J. at 105; Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 92 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). The phrase in N.J.S.A. 34:15-36, "excluding areas not under the control of the employer," "does not relate to concepts of exclusive control or duties of maintenance." Cressey, supra, 204 N.J. Super. at 343. Indeed, that statute uses no adjective to modify "control." It is well-established in workers' compensation jurisprudence that when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right. Mahoney v. Nitroform Co., 20 N.J. 499, 506 (1956); Kertesz v. Korsh, 296 N.J. Super. 146, 153 (App. Div. 1996); Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 408 (App. Div.), certif. denied, 130 N.J. 6 (1992); Brower v. Rossmy, 63 N.J. Super. 395, 405 (App. Div. 1960), certif. denied, 34 N.J. 65 (1961); 1B Arthur Larson, The Law of Workmen's Compensation § 44.10 (1993). In Ramos, supra, we concluded that where the employer has the right to control its employees' use of property for ingress or egress to its place of employment, and an accident occurs on that property, the accident is compensable. 154 N.J. at 593-94. The foregoing principles are consistent with the social policy of liberally construing the Act to implement the legislative policy of affording coverage to as many workers as possible. Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 419 (1986).

C.

Based on our consideration of the undisputed facts, such as the physical location and layout of the stairway, and the controlling legal principles and social policies advanced by the Act, we conclude that the accident is compensable. The undisputed facts reveal that ICT Group knew or should have known that its employees used the back stairway for ingress and egress and for smoking breaks. The stairway ended at an entrance to respondent's premises and none of its customers or clients visited the premises. Given its knowledge and its failure to take any action disapproving its employees' use of that stairway, respondent ratified its employees' use of that stairway for ingress and egress. That is so because, although it is clear that ICT Group had the capacity to deny use by its employees, it chose not to, likely because it was perceived that business purposes would not be advanced or compromised thereby since no customers or clientele visited the premises.

Furthermore, the physical layout and location of the rear stairway prevents it from being considered a common area. It is tantamount to a private staircase used exclusively by ICT Group's employees. That is its only purpose. Hence, this case involves an accident that occurred within the physical premises of ICT Group and cases involving off- premises accidents or common areas are not controlling. See, e.g., Novis v. Rosenbluth Travel, 138 N.J. 92, 93 (1994) (involving fall "while walking across the only sidewalk leading from an office-building parking lot to the entrance of the office building in which [petitioner's] employer's branch office was located"); Livingstone, supra, 111 N.J. at 91 (involving a petitioner who was struck by a motor vehicle while walking to her employer's place of business after parking in employer-designated parking area of a mall parking lot); Ehrlich, supra, 260 N.J. Super. at 90 (involving a petitioner who fell on a public sidewalk after exiting a door leading from employer's premises to sidewalk).

Consistent with the policy of liberally interpreting the Act to favor employees, Close v. Kordulak Bros., 44 N.J. 589, 604 (1965), and because an employee, "as part of [his or her] employment, [is entitled to] safe egress from the premises," Cressey, supra, 204 N.J. Super. at 344, the accident that befell petitioner is compensable.

III.

We reverse the judgment of the Appellate Division and remand the matter to the Division for further proceedings.

CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, LONG, and LaVECCHIA join in JUSTICE COLEMAN's opinion.

JUSTICE VERNIERO filed a separate dissenting opinion.

VERNIERO, J., dissenting.

The Court finds in favor of compensability, based on its conclusion that the stairway on which the injury occurred was tantamount to a private staircase, thereby making the area part of the employer's premises in satisfaction of the test required under the workers' compensation statute. I hold a contrary view. I believe that in the absence of the employer's business use or ownership of the stairway, an employee's idiosyncratic use does not support a finding that the stairway is an extension of the employer's premises. Further, in my view, an employer does not "control" a stairwell merely because the employer refrains from taking action to disapprove an employee's individual and selective use of that area. The plain words of the statute, prior case law, and public policy require that we affirm the Appellate Division. Therefore, I respectfully dissent.

I.

The majority has stated the salient facts. I emphasize the following. Petitioner's injury occurred in a stairway that was not owned or leased by the employer; not required to be maintained by the employer; not designated by the employer to be used by the employees; not used by the employer in furtherance of its business; not providing any special benefit to the employer; not the exclusive means of ingress or egress to or from the employer's premises; not restricted to the exclusive use of the employees; and not posing any special hazard.

Specifically, the judge of compensation found that the stairway on which petitioner was injured, one of three means of ingress and egress, "was not owned, leased, maintained, controlled, nor used . . . at all by the employer in its telemarketing business." Besides leading to a balcony outside of the employer's premises, the stairway also provided access to the building's basement. The employer had no requirements concerning which of the three means of egress were to be used by the employees. The compensation judge found as well that as a telemarketing business, the employer had no customers who might have used the stairway. The judge also found that "[t]he employees' use of the rear stairway furnished no ...


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