Hornyak v. Great Atlantic & Pacific Tea Co.
Hornyak v. Great Atlantic & Pacific Tea Co.
Opinion of the Court
The Appellate Division, in an unreported opinion, affirmed the denial of a workmen’s compensation award to the plaintiff; we certified on his application. 62 N. J. 188 (1972).
The plaintiff was employed as a shipper in the respondent’s distribution warehouse at Cedar Lane, Florence, N"ew Jersey. His working hours were from 9 :30 p.m. until 6 or 7 a.m., with two coffee breaks of 15 minutes each and a half hour lunch period from 1:30 to 2 a.m. He had to check in when entering the premises at 9:30 p.m. and check out when leaving the premises at 6 or 7 a.m.; but he did not have to check out when he left the premises for lunch or cheek in when he returned. Although there was a lunchroom at the premises, no food was available there. Normally about 20 or 25 employees would bring their own lunch and eat in the lunchroom where drinks could be obtained from vending machines. Most of the 85 or so employees would customarily leave the premises and have lunch in nearby Bordentown or Burlington eating places. The supervisory employees knew of this practice and there had never been any suggestion that it was not permissible.
On December 14, 1968 the plaintiff went to the Burlington diner during his 1:30-2 a.m. lunch hour. The diner is located about six miles south of the warehouse on Route 130 and was, at that time of night, the nearest place to eat. The plaintiff had his lunch and was in the course of returning to the warehouse. When he was about two and a half blocks away, at about 1:55 a.m., his car was involved in an accident. He was seriously injured, was taken to the Ran-cocas Valley Hospital where he remained for a week, and was later treated by several physicians. In due course he filed a claim petition for compensation in the Department of Labor and Industry, Division of Workmen’s Compensation. The Division dismissed the petition under the judge-made “going and coming” rule which has often precluded employees from obtaining compensation for injuries suffered
The most recent determinations by our Supreme Court hold to the proposition that, although subject to various exceptions, as well as some criticisms, the “coming and going” rule is still in effect in this State. Bergman v. Parnes Brothers, Inc., 58 N. J. 559 (1971) ; Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970). In view of the fact that the circumstances attending the injury of this petitioner do not fall within any of the recognized exceptions to the rule [including Jones v. Continental Electric Co., 75 N. J. Super. 76 (App. Div. 1962), certif. den. 38 N. J. 312 (1962) ], he is not entitled to compensation.
Our Workmen’s Compensation Act (N. J. S. A. 34:15-1 et seq.) is humane social legislation designed to place the cost of work-connected injury on the employer who may readily provide for it as an operating expense. The Act sets forth that compensation shall be paid for death or injury by accident arising out of and in the course of the employment. N. J. S. A. 34:15-7. Shortly after its original passage the former Supreme Court noted that an accident arises out of the employment if it results from a risk “reasonably incidental” thereto and that it arises in the' course of the employment “if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.” Bryant, Adm’x. v. Fissell, 84 N. J. L. 72, 77, 78 (Sup. Ct. 1913). Later cases have expressed the same
At no point has the Legislature altered the sweeping generality of the statutory terms and it has consistently left their definition and application to the courts. They, in turn, have conscientiously sought to evolve liberally just lines between those accidental injuries which may fairly be said to have some work connection and those which may fairly be said to be unrelated to the employment. Right from the start it was understood that it was not necessary that the employee actually be working at his machine or elsewhere within his employer’s premises to satisfy the statutory formula. See Blovelt v. Sawyer, [1904] 1 K. B. 271; Rowland v. Wright, [1909] 1 K. B. 963; Hanna v. Erie Railroad Co., 8 N. J. Misc. 829 (Sup. Ct. 1930); cf. Waskevitz v. Clifton Paper Board Co., 7 N. J. Super. 1 (App. Div. 1950) ; Crotty v. Driver Harris Co., 49 N. J. Super. 60 (App. Div.), certif. denied, 27 N. J. 75 (1958); Jones v. Continental Electric Co., Inc., 75 N. J. Super. 76 (App. Div.), certif. denied, 38 N. J. 312 (1962). In Jones a watchman was killed while crossing the street in front of his employer’s plant on the way to a nearby diner -where he planned having his midnight lunch; in his opinion holding that the death arose out of and in the course of the employment, Judge Gaulkin cited the settled doctrine that the continuity of the employment is not interrupted by acts of personal comfort such as stopping
In Ricciardi v. Damar Products Co., 45 N. J. 54 (1965), the employee was injured while returning home from a picnic sponsored by her employer. The picnic was at a place other than the work premises but this was held to be immaterial (45 N. J. at 60); similarly, it was held to be immaterial that the employees were free to attend or stay away from the picnic and that no wages were paid for that nonworking day to those who did or did not attend (45 N. J. at 59). In response to the employer’s contention that the award was barred by the going and coming rule, this Court, speaking through the present Chief Justice, pointed out that the rule was “not free from dispute since travel to and from the place of work quite obviously is essential to the work itself” (45 N. J. at 61); and, after noting that the “uneasy footings” of the rule had led to many exceptions, it held that the case before it could justty be brought within one of them. 45 N. J. at 61— 62. In commenting on Ricciardi, the author of the note in 20 Rutgers L. Rev. 599 (1966) voiced the thought that “if an employee may recover for injuries sustained on the way to or from a company picnic, from which the employee is free to stay away without financial loss or employer displeasure, it is difficult to conceptualize how a worker may be denied compensation for injuries sustained while going to or from his regular place of work, which he is obliged to attend.” 20 Rutgers L. Rev. at 617.
In Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970), an award was sustained though the injury occurred outside the employer’s plant while the employee was en route to a street corner where she was to be picked up by a coemployee for her ride home. The situation was brought within an exception to the going and coming rule but Justice Proctor, in his opinion for this Court, took occasion to express general disapproval of the rule itself. He referred to
The New Jersey cases which embraced the going and coming rule undoubtedly recognized that policy rather than logic was the controlling factor and that, in choosing the employer’s plant as the place where the work relation began, an artificial line was being drawn. See Gullo v. American Lead Pencil Co., 119 N. J. L. 484, 486 (E. & A. 1938).
The defendant explicitly acknowledges that if the plaintiff had been injured “during the lunch period while on the employer’s premises” his injury would be compensable (Flanagan v. Charles E. Green & Son, 121 N. J. L. 327, 329-330 (Sup. Ct. 1938), aff'd, 122 N. J. L. 424 (E. & A. 1939)); but it contends that when the plaintiff left “the employer’s premises for eating purposes” he “elected to abandon his employment and no longer can be considered as being in the course thereof.” The suggestion of abandonment is unrealistic. If he went out of the premises for a smoke ot breath of air there would admittedly be no abandonment. See Jones v. Continental Electric Co., Inc., supra, 75 N. J. Super. at 82-83; Crotty v. Driver Harris Co., supra, 49 N. J. Super. at 69-71; Waskevitz v. Clifton Paper Board Co., supra, 7 N. J. Super. at 3; cf. American Motors Corp. v. Industrial Comm., 1 Wis. 2d 261, 83 N. W. 2d 714 (1957); Whitehurst v. Rainbo Baking Company, 70 N. M. 468, 374 P. 2d 849 (1962). And under persuasive decisions elsewhere there would be no abandonment if he left the premises during one of his 15 minute coffee breaks. See, e. g., Jordan v. Western Electric Co., 1 Or. App. 441, 463 P. 2d 598 (1970) ; Prater v. Indiana Briquetting Corporation, 253 Ind. 83, 251 N. E. 2d 810 (1969); Caporale v. Department of Taxation
We adopt as a general rule the proposition that an employee, who is allowed to venture off-premises during an authorized work break, and who is injured in the course of reasonable and necessary activity incidental to such break, should be compensated.
A scheduled coffee break serves the dual function of providing an employee a brief respite from his job as well as affording him an opportunity to tend to matters of a personal nature. The former objective has been viewed as a benefit to the employer, because a refreshed employee is often a more productive one. The latter type of activity may or may not directly benefit the employer, but is allowed as a convenience to the employee. An employer may derive substantial benefits from an employee who is allowed time away from the job to accomplish pressing personal business. Injuries occasioned by employees pursuing necessary personal matters off employer’s premises are compensable in our view as work-connected, especially if the employer acquiesces in such practices. 502 P. 2d at 1401.1
In the matter at hand the plaintiff’s departure for his lunch was no more an abandonment of his employment thaD were the departures in the coffee break cases. The plaintiff had only a half hour and there was no hot food to be obtained on the premises. He had to be afforded the oppor
Larson, supra at § 15.51 suggests that the trip away from and back to the premises for lunch is in principle indistinguishable from the trip at the beginning and end of the work day and should therefore be governed by the same rules and exceptions. Those of us who believe that the going and coming rule should be discarded would of course allow coverage in both groupings. But, an any event, there are distinctions, as well illustrated by the facts in the matter at hand, which may justify coverage for luncheon trips though no coverage is afforded during trips at the beginning and close of the work day. When the plaintiff’s active work was interrupted and he left the premises for lunch he well knew that his work for the day was not at all complete and that he would be returning as soon as his lunch was over. His
Reversed.
For reversal —■ Chief Justice Weintkaub, Justices Jacobs, Peoctok, Mountain and Sullivan, and Judge Con-eokd — 6.
For affirmance — Justice Hall — 1.
■Cf. Sweet v. Koloshy, 259 Minn. 253, 106 N. W. 2d 908 (1960) : “No rational basis exists for distinguishing between an injury which occurs while an employee is going to or coming from a lunch counter maintained on the employer’s premises and an injury which occurs while employee is exercising the same right but where it is necessary to leave the premises in order to reach facilities at which the right may be exercised. Coffee breaks and other rest periods have now become so common in employment contracts that it must be held, at least where the rights to such intervals are made a part of the employment agreement, that they are incidental to the employment and that, while exercising such rights, the employee remains within the scope of employment.” 106 N. W. 2d at 910.
Reference
- Full Case Name
- MICHAEL HORNYAK v. THE GREAT ATLANTIC & PACIFIC TEA COMPANY, DEFENDANT-RESPONDENT
- Cited By
- 8 cases
- Status
- Published