Paige v. CITY OF RAHWAY, WATER DEPARTMENT
Paige v. CITY OF RAHWAY, WATER DEPARTMENT
Dissenting Opinion
dissenting. The majority holds that an employee who was injured after arriving home from his regular work schedule is entitled to worker’s compensation simply because he was on call. Rather than acknowledging that the going and coming rule no longer has any vitality in view of its decisions today, Wyatt v. Metropolitan Maintenance Co., 74 N. J. 167 (1977), Watson v. Nassau Inn, 74 N. J. 155 (1977), and Briggs v. American Biltrite, 74 N. J. 185 (1977), and its previous decision in Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N. J. 99 (1973), the Court has extended compensability to the situation where the employee suffers an injury after completion of his regular
Eo authority is cited for the proposition enunciated except Jasaitis v. Paterson, 31 N. J. 81 (1959). In Jasaitis, a uniformed police officer was held to be entitled to compensation for accidental injury suffered while en route home. Under police department regulations an officer was permitted to wear his uniform for one hour after his fixed tour of duty. The regulations also provided that while in uniform he was subject to specific departmental restrictions. The Court commented that in those circumstances the police officer was implicated in the job of public protection and was in the course of his duties during the trip home. The work relationship in Jasaitis cannot be equated with the instant case. Jasaitis is not an on call status situation. It involves the action of a policeman in uniform in accordance with department regulations. The Jasaitis court makes it abundantly clear that, if the officer had not been in uniform, the accident would not have been compensable.
The issue to be addressed is whether the City of Rahway and its water consumers should properly be assessed with the costs incurred by virtue of an assault upon a water department employee after he had arrived home at the end of his regular shift because he was on call. Is the status of being on call so intimately related with the work that injuries suffered during that period should be compensable? Such accidents do not occur on the employer’s premises. The employee is free to do what he pleases except that his movements may be limited in the sense that he must be reachable. Other than that limitation, he is not in any wise under the control or supervision of the employer. The majority’s argument that having Paige on call for emergencies was substantially beneficial to the employer so as to distinguish this case from others in which the employee may be on call for emergencies, 74 N. J. at 180-182, is at best a difference in degree and not a distinction.
The on call status should not per se create compensability. The employee is not on duty at that time. He is not performing any services for the employer. He is engaged in whatever personal endeavors he desires and is not being directed by or under the control of the employer. If, as the majority states, the going and coming rule remains viable to exclude routine daily trips to or from the employee’s fixed place of business at the end of the day, Briggs v. American Biltrite, 74 N. J. at 189-190, then the employee Paige’s trip home after his regularly scheduled work at the Rahway Water Department plant cannot encompass any com
I would affirm.
Justice Clifford joins in this opinion.
For reversal — Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Handler — 5.
For affirmance — Justice Clifford and Schreiber — 3.
Opinion of the Court
The opinion of the court was delivered by
This is a companion case to Watson v. Nassau Inn, 74 N. J. 155 (1977) and Briggs v. American
The pertinent facts are not in dispute. The petitioner, William Paige, was one of two chief water plant operators in the Water Department of the City of Rahway. The water treatment plant operated around the clock and was manned continuously by a shift operator. Petitioner and his fellow chief operator alternated weekly in working on the 8 a.m. to 4 p.m. shift and the 4 p.m. to midnight shift. Their duties included supervision of department personnel, organization of work schedules, maintenance of plant machinery and keeping records of operations. The chief operator worked under the assistant superintendent of the department during the daytime shift, but he was in complete charge during the night shift.
Because there was no third supervisor for the midnight to 8 a.m. shift, one of them also had to remain on call during that shift and to take responsibility for any emergencies which might arise. Petitioner’s supervisor testified that as a chief operator, he was theoretically on call 24 hours a day, 7 days a week, as are policemen and firemen. This duty was formally incorporated into the civil service description of the job, and petitioner received no extra compensation for the additional weekday shift unless he was required to make a call.
Since the consequences of a breakdown in the water treatment system would have been serious, performance of this on call duty was critical to the operations of the plant. The superintendent of the department testified that petitioner was expected to inform the plant if he left home for more than a few minutes, and petitioner himself stated that he always left a telephone number and address where he could be reached. He also said that he did not travel any substantial distance out of town when he was on call.
There was also evidence that petitioner had separate responsibilities in addition to this bi-weekly on call duty. On various occasions when the water pressure fluctuated (usually in the summer months), he was required to make adjustments of certain interconnections located throughout the city. These adjustments were made with a valve key, a large, bulky tool with a lever arrangement. The department had a truck equipped with the necessary tools, but he kept his own valve key in the trunk of his car so that he could drive directly to the interconnections and avoid making a trip to the plant. He did this with the approval of his superiors, one of whom also carried a valve key in his car to save time in making the same adjustments.
The injuries which led to this claim for workers’ compensation benefits were caused by an unknown assailant who attacked petitioner just after he arrived home from work on the evening of January 18, 1972. Petitioner had been on duty during the 4 p.m. to midnight shift that night and he had just dropped off the shift operator at his home. He then returned to his own home where he was scheduled to remain on call for the next eight hours. The particular details of the assault could not
We agree with the legal conclusion of the judge of compensation that petitioner’s injuries occurred in the course of his employment and therefore entitle him to workers’ compensation benefits under N. J. S. A. 34:15-7. Although the judge stressed in his decision the particular factual setting surrounding this tragic assault,
In addition, the city received a substantial benefit from this working arrangement, since it could dispense with the need for a third chief operator to supervise the midnight to 8 a.m. shift. Moreover, as the compensation judge noted, the city was relieved of the cost of providing suitable sleeping quarters at the plant for the chief operator during this shift. It would be contrary to the underlying purposes of workers’ compensation to force the employee to absorb the risks of this extra duty simply because he returned home. See Watson v. Nassau Inn, supra, 74 N. J. at 159; Briggs v. American Biltrite, supra, 74 N. J. at 188-189.
These facts distinguish petitioner’s position from other jobs whose formal descriptions also contain a requirement that the employee be on call for emergencies at all times. In Jasaitis v. Paterson, 31 N. J. 81 (1959), we upheld an award of benefits to a policeman injured on his way home from work. Significantly, we emphasized his specific duties while in uniform and the public benefits of his visible’ presence as a deterrent to crime, rather than his on call status around the clock. Id. at 85-86. Cf. Robinson v. Levy, 20 N. J. Misc. 444 (W. C. B. 1942); Juna v. New York State Police, 40 A. D. 2d 742, 336 N. Y. S. 2d 738 (1972); Donnell v. Waccacbuc Country Club, 29 A. D. 2d 1022, 289 N. Y. S. 2d 534 (1968). By contrast, in Morris v. Hermann Forwarding Co., 18 N. J. 195 (1955), we denied compensation where the claimant’s home activities were limited to occasional telephone calls to his employer. Id. at 200. It makes no difference here that petitioner’s injuries did not stem directly from an emergency trip to the plant. As in Jasaitis, his off duty time was not his own because he re
Defendant’s argument that the assault did not “arise out of” petitioner’s employment is without merit. We have found that petitioner’s employment extended to his trip home so that he was still in the course of employment when attacked; thus it would not have occurred “but for” his employment. See White v. Atlantic City Press, 64 N. J. 128, 139 (1973); Howard v. Harwood's Restaurant Co., 25 N. J. 72, 82 (1957). Absent any proof that the assault was motivated purely by personal animus unrelated to petitioner’s employment, see Pittel v. Rubin Bros. Bergen Co., 59 N. J. Super. 531 (App. Div. 1960) the requisite causal connection is established under the “positional risk”
The judgment of the Appellate Division is reversed, and the decision of the judge of compensation is hereby reinstated.
During the weekends when he was on call, petitioner received overtime pay simply for being available. On those occasions when he was required to go to the plant, he was paid for a least two hours work, at the appropriate overtime rate, with additional compensation for any other hours actually worked.
He mentioned, in particular, the late hour at which petitioner was assaulted, the use of his personal car for emergency tasks and the presence of work tools in his car at the time of the assault. Cf. Rubeo v. Arthur McMullen Co., 117 N. J. L. 574 (E. & A. 1937) ; Pisapta v. Newark, 47 N. J. Super. 353 (Cty. Ct. 1957).
See Briggs v. American Biltrite, 74 N. J. 185, 189 (1977).
Reference
- Full Case Name
- William G. Paige, Petitioner-Appellant, v. City of Rahway, Water Department, Respondent-Respondent
- Cited By
- 10 cases
- Status
- Published