Premise Rule for New Jersey Workers’ Compensation: Employer Intent and Control

Weber Gallagher Simpson Stapleton Fires & Newby LLP

In the recent unpublished opinion of Walker v. Saker Shop-Rite, the Appellate Division addressed the premises rule in connection with a parking lot case. In Walker, the injured employee worked for Saker for 31 years, with 25 of those years being at the Neptune ShopRite. For much of that time, she drove to work and parked in a parking lot abutting the side entrance to the supermarket. The side entrance was open for customer access as well. The ShopRite was located at the far end of a shopping center.  

The petitioner acknowledged that employees were told to park by the street, but she used the side lot because of safety concerns. Years before her accident, she had a conversation with an Assistant Manager in the Liquor Department that it was dangerous to park anywhere other than the side lot. She testified that she was never told to move. Human Resources testified that they advised new employees to park by the street, but some employees did not. Additionally, the employees charged with retrieving shopping carts from the parking lot had to report any hazards to management.

Saker had a lease with the landlord since 1992 that was still in effect at the time of the accident on December 11, 2018, with amendments over time. Saker paid a pro-rata share common area maintenance fee to the landlord that covered things such as insurance, maintenance of the parking lot, snow removal, cleaning, sweeping, and patching. The lease initially noted the landlord would maintain the common area in good condition and repair. However, 10 months before the accident, in February 2018, the lease was amended to allow Saker to perform reconfiguration work, which included installing raised and extended sidewalks, vehicle direction signs, and restoring by repaving/restriping. According to the General Counsel for Saker, the landlord did not want to bother going to the Planning Board for approval of work, but any work on the lot was subject to Planning Board approval.

The Judge of Compensation found the petitioner’s accident did not occur in an area that was either under the control of Saker or in a designated employee parking lot. The Appellate Division disagreed and reversed.

The Appellate Division looked to the premise rule under N.J.S.A. 34:15-36, which notes that injuries arise out of and in the course of employment if they take place on the employer’s premise. Under that rule, employment begins when the employee arrives at the place of employment and terminates when they leave the place of employment. Areas that are not under the employer’s control are excluded from this rule.  

It did not matter to the Appellate Division that the petitioner, as did other employees, chose to park in a non-designated area. The petitioner’s decision to park in the lot, as opposed to the designated area near the street, was reasonable for her safety. Saker used and controlled the side parking lot where the employee’s injury occurred. Specifically, Saker used the lot not only for customer parking but also for storing shopping carts, deliveries, and as a smoking area for employees. The Court also pointed to the February 2018 lease amendment as intent by Saker to exercise control over the parking lot. In fact, Saker reconfigured and repaved the lot after the employee’s accident.

Comment: This case continues to illustrate that injuries occurring in parking lots under the control of the employer will be compensable for the purpose of workers’ compensation in New Jersey.

The Appellate Division did not take into consideration the fact that there was no additional risk of harm to petitioner (such as in Livingstone) but in fact less risk since she refused to follow the employer’s directive regarding where to park. The Appellate Division continues to “muddy the waters” on parking lot cases by attributing control to employers in areas they do not necessarily control. The dagger for this case was the lease agreement, but even that should not be enough to attribute control to the employer when the lease was changed for the benefit of the landlord.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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