DIANE S. LAPSLEY VS. TOWNSHIP OF SPARTA (DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0958-19T3

DIANE S. LAPSLEY,

Petitioner-Appellant, APPROVED FOR PUBLICATION
January 29, 2021
v. APPELLATE DIVISION

TOWNSHIP OF SPARTA and
SPARTA PUBLIC LIBRARY,

Respondents-Respondents,

and

PAUL AUSTIN and SPARTA
DEPARTMENT OF PUBLIC
WORKS,

Intervenors-Respondents.
____________________________

Argued October 28, 2020 – Decided January 29, 2021

Before Judges Sumners, Geiger, and Mitterhoff.

On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2016-1756.

Matheu D. Nunn argued the cause for appellant
(Einhorn, Barbarito, Frost & Botwinick, PC,
attorneys; Matheu D. Nunn, of counsel and on the
briefs; Christopher L. Musmanno and Christine M.
McCarthy, on the briefs).
 William G. Johnson and John R. Tort, Jr., argued the
cause for respondents (Johnson & Johnson, attorneys
for intervenors Paul Austin and Sparta Department of
Public Works; Leitner, Tort, DeFazio, Leitner &
Brause, PC, attorneys for respondents Township of
Sparta and Sparta Public Library; William G. Johnson
and John R. Tort, Jr., of counsel and on the joint
brief).

The opinion of the court was delivered by

MITTERHOFF, J.A.D.

Petitioner Diane Lapsley appeals from a November 25, 2016 order

entered by a judge of compensation concluding that injuries she sustained in a

February 3, 2014 accident arose out of and in the course of her employment as

a Sparta Township librarian pursuant to the Workers' Compensation Act (the

Act), N.J.S.A. 34:15-1 to -146. After clocking out and exiting the library

premises, petitioner was struck by a snowplow in an adjacent parking lot that

happened to be owned by the township. The compensation judge concluded

that petitioner's injuries were compensable pursuant to the premises rule,

N.J.S.A. 34:15:36, which provides that "[e]mployment shall be deemed to

commence when an employee arrives at the employer's place of employment to

report for work and shall terminate when the employee leaves the employer's

place of employment, excluding areas not under the control of the employer

. . . ." Having reviewed the record and the applicable legal principles, we

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conclude that a mechanical application of the premises rule in the context of a

public-entity employer deviates from well-settled principles applicable to

private employers and invites an overbroad and unwarranted expansion of

public-entity liability for workers' compensation claims. We therefore reverse.

Petitioner was employed as a librarian at the Sparta Township Library. 1

Her duties included supervising staff, ordering books, and creating marketing

materials for library events. The library is located within a municipal comple x

that also includes three common-use parking lots, a baseball field, and Sparta

Township Board of Education offices. The common-use parking lots are free

for use both by township employees as well as the general public. None of the

parking areas within the common-use lot contain designated spots for

petitioner or any other township employees. Thus, the township imposed no

restrictions on petitioner in terms of paths of ingress or egress to and from the

public parking lot and the library. Id.

On February 3, 2014, the library closed early due to inclement weather.

Id. Petitioner's husband came to pick her up and parked in one of the

common-use parking lots. Id. After stepping off the library curb and walking

about eighteen feet into the lot, the couple was hit by a snowplow driven by a

Sparta Township Department of Public Works employee. Petitioner sustained

1
The parties have stipulated to the facts underlying this appeal.

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injuries to her leg that required multiple surgeries and have left her

permanently disfigured.

On August 8, 2014, petitioner filed a complaint in the Law Division

alleging negligence against Sparta Township, Sparta's Department of Public

Works, Sussex County, and the driver of the snowplow. On September 29,

2014, Sparta Township filed a motion to dismiss in lieu of an answer, arguing

petitioner's claim was barred by the exclusive remedy provision of the Act.

The motion was denied and Sparta Township was ordered to file an answer. 2

On January 19, 2016, petitioner moved for summary judgment

requesting a ruling that she did not sustain a compensable injury encompassed

by the Act. Sparta Township cross-moved for a stay and requested the matter

be transferred to the Division of Workers' Compensation (Division), or in the

alternative, for summary judgment.

While the motions were pending, in order to toll the statute of

limitations, petitioner filed a protective claim petition in the Division and

requested a stay pending resolution of the Law Division matter. The Township

of Sparta filed an answer to the claim petition on January 28, 2016. Sparta's

Department of Public Works and the snowplow driver successfully moved to

2
The parties stipulated to the dismissal of Sussex County from the case.

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intervene as co-respondents in the Workers' Compensation matter.

Meanwhile, on February 19, 2016, the trial judge denied petitioner's motion for

summary judgment and granted defendants' request for a stay of the Law

Division matter, to allow the compensability issue to be resolved in the

Division.

On November 25, 2016, a Workers' Compensation judge found

petitioner's injuries were compensable under the Act. Relying on Brower v.

ICT Group, 164 N.J. 367 (2000), the compensation judge determined that

Sparta Township's ownership, maintenance, and right to control the parking lot

were sufficient to find that the injury occurred on the employer's premises. 3

The facts that petitioner had clocked out, and that her employer had not

actually exercised any degree of control over the parking lot, did not preclude

compensability under the Act. Id.

Following the finding of compensability, the parties executed a consent

order staying matters in both the Law Division and Division pending this

appeal. The Law Division matter was dismissed without prejudice on April

3
We agree with the compensation judge's finding that exclusive use is not necessary to
find compensability. We read Brower, however, to hold that an employer's exclusive
use of the situs of an employee's injury is sufficient, but not necessary, to find
compensability. See Brower, 164 N.J. at 372-73.

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20, 2018. On October 22, 2018, the compensation judge issued an order

approving settlement subject to petitioner's appeal.

On appeal, petitioner argues the compensation judge erred by

determining her injuries arose out of her employment because she was not

engaged in a task for her employer's benefit when the injury occurred. She

further contends that it was error to find the injury occurred during the course

of her employment because she was off the clock and no longer within the

confines of the library when the injury occurred. Petitioner urges that public

policy and legislative intent would not be served if we found that a public

employer's right to control the situs of an employee's injury satisfied the

premises rule.4

Respondent argues that the compensation judge correctly found the

injury compensable. Respondent further contends the Act's exclusive remedy

provision is applicable, because petitioner was injured by a co-employee

immediately after leaving work, while on property owned, maintained, and

used by her employer.

We review final decisions from the Division in accordance with a

deferential standard of review. "An administrative agency's final quasi-

4
Petitioner also argues this court should grant her appeal as of right. Respondents have
not opposed her right to appeal, and we find it unnecessary to address the issue.

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judicial decision will be sustained unless there is a clear showing that it is

arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." Russo v. Bd. of Trustees, Police, 206 N.J. 14, 27 (2011). We are not,

however, "bound by [an] agency's interpretation of a statute or its

determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec.,

64 N.J. 85, 93 (1973), particularly when "that interpretation is inaccurate or

contrary to legislative objectives." Russo, 206 N.J. at 27 (quoting G.S. v.

Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170

(1999)). Instead, this court reviews an agency's interpretation of statutes and

case law de novo. N.J.S.A. 34:15-1 – 146; Mayflower Sec. Co., 64 N.J. at 93.

The Act has been described as "humane social legislation designed to

place the cost of work-connected injury on the employer who may readily

provide for it as an operation expense." Livingstone v. Abraham & Straus,

Inc., 111 N.J. 89, 94-95 (1988) (quoting Hornyak v. Great Atl. & Pac. Tea Co.,

63 N.J. 99, 101 (1973)). The Act entitles an employee to recover for injuries

"arising out of and in the course of his employment . . . . " N.J.S.A. 34:15 -1.

Whether a particular accident arose out of and in the course of

employment raises a two-part question. Acikgoz v. New Jersey Tpk. Auth.,

398 N.J. Super. 79, 87-88 (App. Div. 2008); Stroka v. United Airlines, 364

N.J. Super. 333, 339 (App. Div. 2003). First, there must be a causal

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connection between the employment and the accident itself. Acikgoz, 398 N.J.

Super. at 87-88; Stroka, 364 N.J. Super. at 339. Second, there must be a time-

and-place nexus between the injured worker's employment and the accident.

Acikgoz, 398 N.J. Super. at 87-88; Stroka, 364 N.J. Super. at 339. "That the

injured employee may have been 'off the clock' does not automatically

preclude compensability because the situs of the accident is a dispositive

factor." Ackigoz, 398 N.J. Super. at 88 (citing Valdez v. Tri-State Furniture,

374 N.J. Super. 223, 232-33 (App. Div. 2005)).

Although the Act has been broadly interpreted to bring as many cases as

possible within its coverage, Silagy v. State, 105 N.J. Super. 507, 510 (App.

Div. 1969), it was amended by the Legislature in 1979 to "reduce costs by,

among other things, 'sharply curtail[ing compensability for] off-premises

accidents.'" Stroka, 364 N.J. Super. at 338-39 (quoting Jumpp v. City of

Ventnor, 177 N.J. 470, 477 (2003)). Prior to the amendments, courts applied

the going and coming rule, "a doctrine that prevented awarding workers'

compensation benefits for accidental injuries that occurred during routine

travel to or from the employee's place of work." Hersh v. Morris, 217 N.J.

236, 243 (2014). The going and coming rule drew a distinction between

ordinary risks unrelated to employment, and those that were incidental to

employment. Ibid. Its underlying principle was "that the normal journey to

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and from work is of no particular benefit to the employer and exposes the

worker to no unusual risks." Ibid.

Over the years, however, courts crafted so many exceptions to the going

and coming rule that it remained applicable only to a narrow set of

circumstances. Briggs v. Am. Bilrite, 74 N.J. 185, 189-90 (1977). When the

Legislature amended the Act in 1979, it provided a more restrictive definition

of "employment" in order to curtail compensability. Hersh, 217 N.J. at 244.

Employment, as defined by the Act subsequent to the 1979 amendments:

[S]hall be deemed to commence when an employee
arrives at the employer’s place of employment to
report for work and shall terminate when the employee
leaves the employer’s place of employment, excluding
areas not under the control of the employer . . . .

[N.J.S.A. 34:15-36.]

With the 1979 amendments, the going and coming rule was replaced

with the premises rule. Kristiansen v. Morgan, 153 N.J. 298, 316 (1997).

"The premises rule is based on the notion that an injury to an employee going

to or coming from work arises out of and in the course of employment if the

injury takes place on the employer's premises." Ibid. Like the going and

coming rule, the premises rule distinguishes between accidents that occur on

the employer's premises from those that do not. Ramos v. M & F Fashions,

154 N.J. 583, 591 (1998). The Court has explained, however, that the phrase

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"excluding areas not under the control of the employer . . . . was intended to

make clear that the premises rule can entail more than the four walls of an

office or plant." Kristiansen, 153 N.J. at 316-17. When determining whether

an employee's injury took place on an employer's premises, courts consider (1)

the situs of the accident; and (2) whether the employer had control of the situs

of the injury. Ibid. (citing Livingstone, 111 N.J. at 96).

In Livingstone, the Court extensively analyzed the body of case law

interpreting the "going and coming rule" beginning with Bryant v. Fissell, 84

N.J.L. 72, (Sup. Ct. 1913), through the 1979 amendment to N.J.S.A. 34:15 -36.

Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 90-91 (App. Div. 1992)

(citing Livingstone, 111 N.J. at 95-100). "[T]he Court identified a group of

cases holding that 'parking lots owned, maintained, or provided by employers

were to be considered part of the employer's premises, and that injuries

occurring in such lots before or after the actual work day arose out of and in

the course of employment.'" Ibid. (quoting Livingstone, 111 N.J. at 99). After

reviewing the 1979 amendments to the Act, the Livingstone Court stated:

[W]e are persuaded that the Legislature impliedly
approved of the principle established by those cases,
namely, that lots owned, maintained, or used by
employers for employee parking are part of the
employer's premises, and had no intent to affect the
validity of such decisions . . . The omission of any
provision purporting to overrule or limit the reach of
the parking-lot cases, in light of the comprehensive

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 nature of the amendment, indicates that the
Legislature considered these cases to be consistent
with the economic tradeoffs struck by the Act, and
therefore in need of no correction.

[Ibid. (quoting Livingstone, 111 N.J. at 102-03).]

Since Livingstone was decided, however, the Court has narrowed

applicability of the premises rule in parking lot cases. In Novis v. Rosenbluth,

an employee was injured "while walking across the only sidewalk leading from

an office-building parking lot to the entrance of the office building of which

her employer's branch office was located." 138 N.J. 92, 93 (1994). The

parking lot was adjacent to the office building and accommodated the

building's tenants, including employees and visitors of the employer. Ibid.

The employee had not received any instruction from her employer regarding

her use of the lot. Id. at 94.

In reversing our decision in Novis, the Supreme Court found that

Livingstone had incorrectly been construed to adopt a per se rule that an

employer's "use" of a parking lot to benefit its employees automatically

satisfied the premises rule. Id. at 94-95. In that regard, the Court noted that

the employer had not exercised any degree of control over its employee's use

of the common-use parking lot. Id. at 96 (emphasis added). Rather, it "simply

shared the lot with the other tenants." Ibid. Thus, lacking the critical element

of employer-directed control of the employee's use of the lot, the Court found

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the injury non-compensable. Ibid.; see also Hersh, 217 N.J. at 249-50 (finding

an injury sustained in a cross-walk while walking from an employer-provided

parking lot to the place of employment non-compensable, in part, because

paths of ingress or egress were not dictated by the employer); cf. Bradley v.

State, 344 N.J. Super. 568, 579 (App. Div. 2001) (finding off-premises injuries

sustained while using employer-directed paths of ingress or egress before or

after work compensable).

A critical factor in the evolution of Workers' Compensation off-premises

parking lot cases, then, is the degree of control the employer exercises over the

employee's use of the lot. An injury will be compensable if it is sustained

while the employee is using the lot where the manner of ingress or egress is

dictated by the employer, Bradley, 344 N.J. Super. at 579, or in an area where

the employee parks at the employer's direction for the employer's proprietary

gain. Livingstone, 111 N.J. at 105-06. Use of a shared parking lot that

accommodates multiple tenants, without specific instruction from an employer,

is not sufficient to satisfy the premises rule. Novis, 138 N.J. at 96.

This case is distinguishable from the foregoing authorities, of course,

because the Township happens to own the parking lot adjacent to the library.

Nevertheless, we conclude that there is no reasoned basis to depart from the

general rule that the library's "use" of the common-use parking lot for its

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employees' benefit is not sufficient to satisfy the premises rule. It was

stipulated that petitioner was off-the-clock at the time of the accident and had

exited the library premises. Library employees were not given any instructions

about where in the subject lot to park or indeed whether to park in that

particular lot, on the street, or anywhere else in town where parking may be

available. Nor were library staff instructed on the manner of ingress or egress.

The lot was shared with other municipal employees and members of the public

alike. Thus, the stipulated facts established that petitioner's employer

exercised no control of its employee's use of the subject lot, that control being

a critical element of the premises rule's application.

The reason control of an employee's use of the property is critical in a

public-employer context is illustrated in Ackigoz, 398 N.J. Super. at 90. In

Ackigoz, two New Jersey Turnpike Authority (NJTPA) employees had a car

collision while crossing an overpass that led to and from a NJTPA facility. Id.

at 82. Both drivers were off the clock at the time of the accident; one was

heading home and the other was returning to the facility to pick up his

paycheck. Ibid. The overpass was owned and maintained by the NJTPA and

used by its employees, State Police, business invitees, and the general public.

Id. at 90. The roadway was only one of several means of ingress and egress to

the maintenance yard, including one access that adjoined a public road.

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Although the NJTPA specifically permitted its employees to use the overpass,

it neither encouraged nor discouraged the use of the roadway leading to the

access overpass where the accident occurred.

After the accident, one of the drivers sought to bar a third-party

negligence claim against him, alleging both drivers were in the course of their

employment at the time of the accident because the situs of the accident was

owned, controlled and maintained by their mutual employer. Id. at 82.

Rejecting that compensability was established based solely on the NJTPA's

ownership and maintenance of the roadway, we observed such a conclusion:

[W]ould essentially abrogate the premises rule
because the [NJTPA] owns and maintains the entire
New Jersey turnpike system. Clearly, the mere fact
that an [NJTPA] employee was involved in an
accident on a road owned and maintained by the
[NJTPA] cannot serve as a sufficient basis to conclude
the accident occurred in the course of petitioner's
employment.

[Id. at 90.]

Despite the NJTPA's undisputed ownership and maintenance of the

location, we upheld the compensation judge's conclusion that neither driver

was in the course of their employment at the time of the accident. Relevant to

this case, one driver had left the designated parking area of the facility where

he worked and was on his way home. We agreed that once he left the

designated parking lot, the route became part of his normal commute and he

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was no longer on the employer's premises. This despite the fact that the

premises of his employer and the accident site were each owned, maintained

and controlled by the NJTPA. Id. at 89.

Similarly, in this case the Township owns and maintains multiple

properties and roadways within its geographical boundaries, including the

library premises and the adjacent parking lot. Library employees, however,

are neither encouraged nor discouraged from utilizing the subject common -use

lot. Like the employee in Acikgoz, once petitioner clocked out and exited the

library premises, she embarked on her normal commute home. To conclude

that petitioner's injuries would be compensable on any town-owned lot or

roadway after leaving the library premises would be an unwarranted and

overbroad expansion of public-entity exposure for workers' compensation

claims under the Act.

Reversed.

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