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Joann Bianco v. Jenirine C. Smith-Robotham

January 24, 2011

JOANN BIANCO, PLAINTIFF-APPELLANT,
v.
JENIRINE C. SMITH-ROBOTHAM, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9895-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010

Before Judges Parrillo and Espinosa.

Plaintiff Joann Bianco was injured when she was struck by a car driven by a fellow employee, defendant Jenirene C. Smith-Robotham, in her employer's parking lot immediately after they both left work. She appeals from an order granting summary judgment and dismissing her complaint on the grounds that her suit was barred by the Workers' Compensation Act. We affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

The material facts are not in dispute and, giving all favorable inferences to plaintiff, can be summarized as follows:

Both plaintiff and defendant were employed by the Star Ledger in Piscataway on the day of the accident, March 15, 2007. Their shifts, which began at 10:00 p.m., ended early that night, allowing them to leave some time after 4:00 a.m. Plaintiff walked to the parking lot to wait in the car for her sister. On the way, she dropped a book and bent over to pick it up. She took about four more steps before she was struck on her left side by a car driven by defendant. The police report of the accident states that defendant was "rushing to get to her other job located in Jersey City, had not seen [plaintiff] walking until it was too late and quickly stepped on the brakes to stop."

Plaintiff, who was eight months pregnant, was transported to the hospital by ambulance and remained hospitalized for three days. Thereafter, she sought medical treatment for pain in her back, weakness in her leg, and numbness in her foot. At her deposition, plaintiff testified that she was told that she had "bad disks [sic]" and nerve damage. She also stated that she continued to experience constant back pain, numbness in her left leg, and pain in her foot.

In July 2008, plaintiff filed a claim petition for Workers' Compensation benefits from her employer and received benefits. Plaintiff filed the complaint against defendant in November 2008. Defendant filed a motion for summary judgment, arguing that plaintiff's claim was barred by the exclusive remedy and fellow-servant provisions of the Workers' Compensation Act, N.J.S.A. 34:15-8. The trial court granted summary judgment to defendant.

In this appeal, plaintiff argues that this was error; that the fellow-servant rule did not apply because defendant was not acting within the scope of her employment when the accident occurred. She contends that, because defendant was "rushing to get to her other job," she was engaged in personal conduct and was not, therefore, acting within the scope of her employment. We are satisfied that this argument lacks merit.

N.J.S.A. 34:15-8 states:

If an injury or death is compensable under [the Workers' Compensation Act], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

The Act is to be "liberally construed in favor of its applicability . . . not only when the injured person seeks its protection, but [also] when he attempts to have himself excluded from the coverage of the act." Santos v. ...


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