Levine v. Haddon Hall Hotel
Levine v. Haddon Hall Hotel
Dissenting Opinion
(dissenting). The Court takes the position that this case is “substantially control [led]” by Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970), and “further supported]” by DiNardo v. Newark Bd. of Educ., 118 N. J. Super. 536 (App. Div. 1972), authorities which, I submit, do not justify the award of compensation
The majority’s holding I take to be this: inasmuch as an employer-provided employee parking lot was more distant from the place of employment (albeit in a sharply divergent direction) than was the point at which petitioner was struck by a vehicle while walking from a bus stop to work, that accident occurred within some circumscribed area said to have been a basis for the approval of the award in Hammond, supra, and thus falls within one of our exceptions to the rule. That holding is based not only upon what I conceive to be a misreading of the law but also upon an interpretation of the facts with which I cannot agree in two critical respects, the first as to the nature of any employee parking arrangement and the second as to the location of the parking lot in question with relation to the accident point and the petitioner’s place of employment.
The Haddon Hall Hotel is on the Boardwalk at Atlantic City. It is bounded on its south' side by North Carolina Avenue. The Chalfonte Hotel, also on the Boardwalk, is directly across North Carolina Avenue from the Haddon Hall and presumably under the same ownership or management. The two structures are referred to indiscriminately in the record either by their separate names or as Chalfonte-Had-don Hall.
As with any large hotel (the Chalfonte-Haddon Hall has 1000 rooms) parking facilities were supplied for the guests. There was testimony at trial, supplemented by a map, regarding the location of those faciilties and the means of access to them, to which I shall refer below. The first point is that
As the majority indicates, during the busy season
The second point is that even assuming this case is to be decided in the context of an employer-jprovided employee parking facility, Buerkle v. United Parcel Serv., 26 N. J. Super. 404 (App. Div. 1953); Lewis v. Walter Scott & Co., Inc., 50 N. J. Super. 283 (App. Div. 1958); cf. McCrae v. Eastern Aircraft, 137 N. J. L. 244 (Sup. Ct. 1948), the majority’s conclusion that the distance from the Haddon Hall to the parking lot was greater than the distance from Haddon Hall to the accident scene is erroneous.
If this factual analysis is correct, then obviously com-pensability cannot attach even under the novel exception created by today’s decision. What remains is essentially nothing more than an accident occurring while the employee was traveling to work, not within any exception to the "going and coming” rule, and thus excluded under Mayer v. John E.
But even accepting the assertion that there is in fact before us a parking lot which is (a) provided by the employer for use of employees, and is (b) farther from the place of employment than the accident site, I disagree with the majority’s result.
That result turns, as I have suggested, on the notion that Hammond v. The Great Atlantic & Pacific Tea Co., supra, creates some kind of critical area; any kind of “going and coming” accident happening within this area will gain the benefit of an exception to the rule, entitling the employee to compensation. In Hammond the employer had provided an employee parking lot about 300 feet further away from the employer’s building than the place where the accident occurred. Mrs. Hammond had, for four years preceding the accident, obtained a ride home from a co-employee who parked in the lot. Because of a physical deformity and because of the poor condition of the public sidewalk en route, Mrs. Hammond rarely walked to the lot herself. On the day of the accident she was proceeding toward the intersection between her place of employment and the parking lot, intending to await a ride on the far corner of that intersection, when she was injured in a fall.
In holding for compensability under those circumstances this Court reasoned that inasmuch as an injury occurring in a public street between the plant and the parking lot would be compensable to a user of the lot since it occurred between two portions of the employer’s premises, Lewis v. Walter Scott, supra, Mrs. Hammond’s shorter walk to a' nearby corner in order to wait for her driver co-employee would not preclude compensation. It is apparent from the opinion that the petitioner’s indirect use of the parking lot was a significant feature in the decision. Mrs. Hammond was in a place where she might reasonably have been expected to be — that is, given her physical condition and the deteriorating
In this case Mr. Levine had no relationship whatsoever to any parking lot. He never drove himself to work, much less parked a car in a parking lot. He never rode with anyone who parked in a lot. He always used a taxi or other public transportation. The narrow decision of Hammond, carefully confined to its facts, cannot justify compensation either under the majority’s novel theory or under any of the heretofore recognized exceptions to the “going and coming” rule.
DiNardo v. Newark Bd. of Educ., supra, cited as supportive authority, claims to be the legitimate offspring of Hammond. I cannot discern that bloodline, but in any event DiNardo (which, I repeat, begs for a narrow construction) is readliy distinguishable on its facts from the case sub judice. As pointed out in the majority opinion ante (pp. 418-419), petitioner in DiNardo fell on the public sidewalk abutting the employer’s premises. The accident was held to be com-pensable for the reason, among others, that it happened in “an area as to which respondent, as the adjoining landowner, was subject to certain responsibilities,” 118 N. J. Super, at 539. While maintenance as such was not determinative of the result, responsibility as to the sidewalk area was deemed significant. Here, Haddon Hall had no dominion or control over or “responsibility” with respect to the accident site, some seven or eight hundred feet from any part of its property. Whatever persuasive effect DiNardo may have, it does not apply here.
There is no precedent in this State which either expressly or impliedly supports the majority’s unique exception. Cf. Fischer v. Lincoln Tool & Die Co., 37 Mich. App. 198, 194 N. W. 2d 476 (Ct. App. 1971). It is neither logical nor equitable, and the situation does not justify — much less “cry out for” — compensation. The effort is to establish an outer perimeter within which “going and coming” accidents are compensable and beyond which they are not. The technique is to use the place of employment as the center of
I would affirm the Appellate Division’s reversal of the judgment and order of the Division of Workmen’s Compensation.
Justice Sullivan and Judge Conford authorize me to indicate their agreement with this opinion.
For reversal — Chief Justice Hughes and Justices Jacobs, Mountain and Pashman — 4.
For affirmance — Justices Sullivan and Clifford and Judge Conford — 3.
While I recognize that the area of judicial notice is circumscribed, I think it would permit the observation that the busy season for an Atlantic City hotel runs from the beginning of summer to shortly after Labor Day — from some time before to considerably after the accident date.
There is no testimony to that effect in the record, so I assume the judge obtained the figure from P-4 in evidence, described as “a map of North Carolina Avenue from the Boardwalk to Pacific Avenue.” My own examination of the map shows the distance from the intersection to the westerly boundary line of Haddon Hall property to he 873.17 feet. The difference of over 100 feet does not affect the result.
The witness Steele, electrical foreman at Haddon Hall on the date of the occurrence, described the lot as being in two sections, with no building between them.
Opinion of the Court
The opinion of the Court was delivered by
This workmen’s compensation ease calls upon us once again to decide whether an accident occurring prior to an employee’s arrival on his employer’s premises is within one of the exceptions to the “going and coming” rule. Plaintiff Nathan Levine was a part-time employee in the timekeeping department of respondent Haddon Hall Hotel. Mr. Levine was 69 years of age at the time of the accident giving rise to the claim herein. Although he walked with a cane outdoors, it was not necessary to aid his ambulation when indoors. He was usually at work some time between 8 and 9 o’clock in the morning, depending upon the work schedule. While plaintiff’s disability did not require that he travel to and from work by cab, he preferred it to public transit as a means of preserving his strength.
The main issue before the Judge of Compensation was whether the facts were an exception to the “going and coming” rule. On appeal from a determination in favor of plaintiff, the Appellate Division reversed in an unpublished opinion, holding that the facts did not fall within any of the recognized exceptions to the rule. Petition for certification was granted. 64 N. J. 325 (1974). We find the case of Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7 (1970), to be substantially controlling; DiNardo v. Newark Board of Education, 118 N. J. Super. 536, 539 (App. Div. 1972) is further supportive.
There is no doubt that had plaintiff driven to work on an ordinary workday, parked in a hotel lot one or two blocks away
In Hammond, supra, an employee was injured while walking to the point where she usually waited for a ride from a co-employee who parked in the company lot. As is true of plaintiff herein, Mrs. Hammond had difficulty walking. She did not want to traverse the broken sidewalk between her place of employment and the parking facilities. Instead, she proceeded to a nearby corner to await transportation. Her walk to a place other than that provided employees for parking did not preclude compensation. 56 N. J. at 15. Mrs. Hammond’s injuries occurred in the course of her employment and in a place where she might normally be. The accident arose out of her employment since it resulted from a risk reasonably incidental to the employment.
Plaintiff herein should not be denied compensation because he availed himself of public transportation rather than obtaining a ride from a co-employee. DiNardo, supra. In DiNardo, petitioner had exited from a school building where she worked in the cafeteria. While en route to a bus stop, her heel caught in a crack in the sidewalk adjacent to the school. The resultant injuries were held compensable
As in Hammond and DiNardo, this respondent expedited the arrival of its employees who drove to work by providing parking facilities. Those who do not avail themselves of such facilities are covered by our Workmen’s Compensation Act in these circumstances. Hammond; DiNardo. We will not deny petitioner compensation because, as in the instant ease, the employer desires to provide additional parking for hotel guests and to that end temporarily deprives employees of the facilities they are normally permitted to utilize.
A word as to the dissent. We need not consider here the question of whether the “going and coming” rule should be abandoned. Our holding further emphasizes that the rule should be liberally construed within the spirit of the Workmen’s Compensation law. The statement in Hammond, supra, and DiNardo, supra, as to the narrowness of the is
We do not intend any classification of exceptions based on “outer perimeter.” The facts in this case equitably cry out for compensation and we respond by including these facts in an exception previously carved out in Hammond and DiNardo, supra.
The judgment of the Appellate Division is reversed. The judgment of the Division of Workmen’s Compensation is reinstated.
Although plaintiff was to receive doubletime pay to compensate for his working on a holiday, be was regularly scheduled to work on July 4 and was to report at the usual hour.
In his findings, the Judge of Compensation noted that respondent allowed the employees to park “either at its parking lot on North Carolina or on its parking lot a block away on South Carolina.” The hotel’s paymaster, Mr. Scull, testifying in place of the resident manager, indicated that the hotel had an additional lot on Virginia Avenue two blocks away, “where the overflow goes . . .” We also accept the findings of the Judge of Compensation with regard to the distances involved between the accident site and the respondent’s premises as well as the location of the parking lot.
The court in DiNardo did not address itself to the distance from the school premises to the parking lot but mentioned only that the injury occurred while petitioner was on a sidewalk adjacent to the premises.
[118 N. J. Super, at 539]. In Hammond, 56 N. J. at 10, the “distance from respondent’s buliding to the point where [petitioner] waited for her ride was substantially less than the distance from the building to the parking lot.” The Judge of Compensation in the case now before this Court found that the intersection where the accident occurred was approximately 715 feet from respondent’s premises but within the same block. The judge then noted that the lot most often used by employees was one block away.
Upon discovering that petitioner’s total disability resulted from the current injury as well as his prior paralysis, the Judge of Compensation directed petitioner to join the Second Injury Fund. In a statement in lieu of brief, the attorney general conceded petitioner’s total disability and that it did not result from the last injury alone. He further noted that should the Judge of Compensation’s decision be upheld, payment of Second Injury Fund Benefits should be made.
Reference
- Full Case Name
- Nathan M. Levine, Plaintiff-Appellant, v. Haddon Hall Hotel, Leed & Lippencott Co., and Chalfonte Haddon Hall, Defendants-Respondents, and Second Injury Fund, Defendant-Respondent
- Cited By
- 9 cases
- Status
- Published