July 26, 2011
TONI LEE HIGH AND JAMES HIGH, PLAINTIFFS-APPELLANTS,
DANA ROSE, DEFENDANT-RESPONDENT, AND JARED BARBIN, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8160-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Gilroy and Ashrafi.
This is a personal injury automobile negligence action. Plaintiff Toni Lee High and James High, her husband, appeal from the November 6, 2009 order that granted summary judgment to defendant Dana Rose, and from the December 18, 2009 order that denied their motion for reconsideration.*fn1 We affirm.
On October 22, 2007, defendant Rose, while operating an automobile owned by defendant Jared Barbin, accidentally struck and injured plaintiff. On October 8, 2008, plaintiff filed a personal injury negligence complaint against defendants. In October 2009, Rose filed a motion for summary judgment contending that plaintiff's personal injury claim was barred by the fellow-servant provision of the New Jersey Workers' Compensation Statute, N.J.S.A. 34:15-8. On November 6, 2009, the trial court entered an order with reasons stated granting the motion.
The facts are not in dispute. The Montclair Kimberley Academy (MKA) is an independent educational institution that provides pre-kindergarten through twelfth grade instruction on three separate campuses: the Brookside School campus for grades pre-kindergarten through third; the Middle School campus for grades four through eight; and the Upper School campus for grades nine through twelve.*fn2 Schoolchildren arrived at the Brookside School at approximately 7:45 a.m. and, except for the children attending the after-school care program, left by 2:45 p.m.; and the teachers and staff generally left at 3:30 p.m. The Brookside School also provided instruction at the after-school care program for students until 4:00 p.m. or earlier when those students were picked up at the school by their parents or appropriate guardians.
Plaintiff was employed by the MKA at the Brookside School campus as a nurse; Rose was employed by MKA at the same school as a teacher. Defendant's five-year old son attended pre-kindergarten at the Brookside School till 2:30 p.m. each day, and then proceeded to its aftercare program until he was picked up by defendant after completing her teaching duties for the day.
On the day of the incident, plaintiff supervised the children entering school buses after dismissal at 2:45 p.m.; however, she did not immediately leave the premises, choosing to remain at the school until approximately 4:15 p.m. to assist another teacher. After her assistance, plaintiff walked to the school parking lot, intending to enter her automobile and leave the premises. The Brookside School's parking lot is used for employee parking, school bus parking, and gym exercises.
In the interim, after defendant finished teaching her class, she attended a faculty meeting, completed additional instructional work, and then at approximately 4:15 p.m., picked up her son who had attended the school's pre-kindergarten after-school care program. Defendant walked to the parking lot where her car had been parked; secured her son in a car seat; began to back out of her parking space and struck plaintiff who was walking behind her motor vehicle.
Plaintiff filed a claim petition for workers' compensation benefits. MKA's workers' compensation insurer accepted the claim petition and paid plaintiff medical and temporary compensation benefits totaling $33,948.94. On October 8, 2008, plaintiff filed her negligence complaint against defendants.
On November 6, 2009, the court granted summary judgment. In so doing, the court reasoned:
Plaintiff and [d]efendant are co-workers, and the injury incurred while both were in the course of their employment [Mule v. N.J. Mfrs. Ins. Co., 356 N.J. Super. 389 (App. Div. 2003) and Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471 (App. Div. 1999)] are distinguishable. Here, the parties had not left the parking lot of the employer.
In addition, the ability to enroll your child in pre-kindergarten at your place of employment is a benefit to both employ[er] and employee.
On December 18, 2009, the court denied plaintiff's motion for reconsideration.
On appeal, plaintiff argues that the trial court erroneously determined that Rose "was in the course of her employment at the time the incident occurred." Plaintiff contends that the court improperly applied Mule, supra, 356 N.J. Super. at 389, by determining that Rose's son's enrollment "in pre-K and after-school care at Montclair Kimberly Academy is a mutual benefit." Plaintiff further asserts that the court "improperly relied on [plaintiff's] status as 'in the course of employment' in determining Rose's status."
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).
The Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to 142, "must be liberally construed in favor of employees." Zahner, supra, 321 N.J. Super. at 477. An employee who suffers an accidental injury that arose out of and in the course of his employment is entitled to recover workers' compensation benefits. N.J.S.A. 34:15-1. "[T]he 'arising out of' portion [of N.J.S.A. 34:15-1 is] construed to refer to causal origin and the 'course of employment' portion [refers] to the time, place, and circumstances of the accident in relation to the employment." Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288 (1986). Simply stated, "[t]o prove compensability under the Act, a petitioner must establish that the accident arose out of his [or her] employment by demonstrating a causal connection between the employment and the accident. Second, he [or she] must also show a time and place nexus between the employment and the accident [t]o prove the injury occurred in the course of employment." Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79, 87-88 (App. Div.) (internal citations omitted), certif. denied, 195 N.J. 418 (2008).
N.J.S.A. 34:15-36 states, in part, "[e]mployment 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." "This definition describing when employment begins and ends is known as the 'premises rule' and it distinguishes between an accident that occurred on the employer's premises and one that did not." Zahner, supra, 321 N.J. Super. at 478; see also Scott v. Foodarama Supermarkets, 398 N.J. Super. 441, 446-47 (App. Div. 2008). Thus, "[t]he pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred?" Zahner, supra, 321 N.J. Super. at 478. "On-premises employment . . . ends when the employee leaves that place . . . ." Scott, supra, 398 N.J. Super. at 446.
Under the premises rule, "an employee may be found to have been in the course of employment . . . even when he [or she] was not currently engaged in work duties, if the accident occurred on the employer's premises." Acikgoz, supra, 398 N.J. Super. at 88. Just because an "injured employee may have been 'off the clock'" does not mean that the employee is not in the course of employment because "the situs of the accident is a dispositive factor." Ibid. Accordingly, "if an employee sustains an injury in an area controlled by the employer his injury is [generally] deemed to occur in the course of employment." Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 233 (App. Div. 2005) (quotation omitted).
An employer's parking lot is part of the employment premises, and an employee entering or using the lot is in the course of employment. Konitch v. Hartung, 81 N.J. Super. 376, 382-83 (App. Div. 1963), certif. denied, 41 N.J. 389 (1964; accord Bradley v. State, 344 N.J. Super. 568, 575-76 (App. Div. 2001) (stating parking lots owned, maintained, or provided by employers are to be considered part of the employer's premises, and injuries occurring in such lots before or after the actual work day are in the course of employment).
N.J.S.A. 34:15-8 prohibits an injured employee who is entitled to recover under the Act from instituting a common-law negligence action against a fellow employee who negligently caused the plaintiff's injuries. This is commonly referred to as the fellow-servant rule. Acikgoz, supra, 398 N.J. Super. at 91. For the statute N.J.S.A. 34:15-8 "to bar to a suit against a co-employee, three conditions must be satisfied: (1) the plaintiff must have suffered a compensable injury; (2) the plaintiff and defendant must have been co-employees; and (3) the defendant must have been acting in the course of his employment." Daus v. Marble, 270 N.J. Super. 241, 246 (App. Div. 1994) (quotation omitted).
Mule informs us that in determining whether the tortfeasor is "in the same employ" and whether N.J.S.A. 34:15-8 is applicable it is "useful to consider whether, had [the tortfeasor-employee] been injured, the accident would have been one 'arising out of and in the course of his employment' entitling him [or her] to workers' compensation benefits." 356 N.J. Super. at 395. "The statute [N.J.S.A. 34:15-8] is only applicable . . . if the two-prong test of N.J.S.A. 34:15-1 is satisfied as to both employees." Acikgoz, supra, 398 N.J. Super. at 92.
The trial court determined that plaintiff's personal injury claim was barred by the fellow servant rule contained in N.J.S.A. 34:15-8 because both parties were still in the course of their employment when the accident occurred in the parking lot provided by the Brookside School for the employees to park their automobiles while performing their job duties at the school. We discern no reason to interfere with the court's determination under the principles cited. We reject plaintiff's argument that defendant ceased being in the course of her employment after she picked up her child from the after-school care program operated at Brookside. The child was attending the after-school program so that plaintiff could complete her teaching duties. Immediately after plaintiff finished her job functions for the day, she picked up her son and walked to her automobile. We agree with the trial judge that defendant was still in the course of her employment when the accident occurred. Accordingly, we affirm.