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Toni Lee High and James High v. Dana Rose

July 26, 2011

TONI LEE HIGH AND JAMES HIGH, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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