dissenting.
The Court’s opinion proclaims good news along with a lot of bad news. And bad law. The good news is that the majority wisely rejects the Appellate Division’s quaint “control over the employees” basis for imposition of employer liability. The bad news is that it excogitates its own quirky notion of employer control of the accident site, henceforth to be known, perhaps, as the “under-used area” theory (see ante at 104.) Alas, the starting signal has sounded: we are off and running on the first lap of our race to surpass, if possible, the utter confusion we created with our exceptions to the “going and coming” rule before the Legislature took pity and, through its extensive amendments to the Workers’ Compensation Act, L.1979, c. 283 *107(the Act), spared us further uneasiness. See State v. Mulcahy, 107 N.J. 467, 486 (1987) (dissenting opinion). Or so it thought. And so one must wonder: are we just slow learners when it comes to the lesson of our own unhappy experience?
I
The employee parked her car in the general parking area of the mall in which was located the store of her employer, Abraham & Straus (A & S), a tenant and one of four “anchor” stores of about 120 shops in the mall. She was walking across the parking lot toward the A & S employees’ entrance, about 180 feet away, when struck by a car driven by a co-employee. In the employee’s action for workers’ compensation benefits the judge of compensation dismissed the petition. A divided Appellate Division panel reversed. Livingstone v. Abraham & Straus, 216 N.J.Super. 685 (1987). The issue posed by reason of the dissent below is whether the employee’s injuries arose out of and in the course of her “employment” as that term is defined in N.J.S.A. 34:15-36. More specifically, the question is whether the mall parking lot is part of the employer’s “place of employment” and “under the control” of A & S. In my view Judge Michels, dissenting below, has this one right: his answer, and mine, to all of the above is “no.” 216 N.J.Super. at 692-97.
II
One must start, as Judge Michels does, with a respectful observance of an appellate court’s role in reviewing the compensation judge’s findings that the employer was not in control of the parking area and was simply a tenant in the mall, 216 N.J.Super. at 693, wherefore the accident was non-compensable. Ibid. Those critical conclusions surely find adequate support in the record and should not be disturbed on review. Ibid.
*108The controlling portion of the statute, N.J.S.A. 34:15-36, part of the extensive amendments to the Act, reads:
Employment 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; * * *.
As the Court notes, ante at 101 n. 4, this appeal “turns strictly on an application of [this] basic definition * * That definition must be read and applied, I submit, with one eye firmly fixed on the purposes of the amendments: to “put significantly more money into the hands of the more seriously injured workers while providing genuine reform and meaningful cost containment for New Jersey employers from unjustified workers’ compensation costs that are presently among the highest in the nation.” Joint Statement of the Senate and Assembly Labor, Industry and Professions Committees to S 802 and A 840 (1979) (Joint Statement), 1. Significantly for today’s purposes, the legislature focused directly on the problem posed by this case when it sought to achieve its cost-containment objective by “establishing relief from the far-reaching effect of the ‘Going and Coming Rule’ decisions by defining and limiting the scope of employment.” Id. at 2. With that declared purpose in mind, and given the plain and unambiguous language employed by the legislature, I see no room for toying around — and no legitimate policy reason for making the effort —with the statute’s straightforward meaning: the employee has the burden of establishing that the accident happened in an area that was under the control of the employer. Whatever the law used to be — those interested in the history of these things will be rewarded by the Court’s perlustration of the late, unlamented “going and coming” rule, ante at 96-100 — it is no longer enough, as Judge Michels points out, that the accident occurred in an area in reasonable proximity to the employer’s place of business. 216 N.J.Super. at 695.
I refuse to complicate this simple problem. Nor, contrary to the majority’s charge, ante at 106 n. 5, do I adopt the view that “the 1979 amendments were intended to change the *109common-sense rule that employers are liable for a worker’s injury after the worker arrives at the employer’s parking lot.” No such thing. But the problem here, lest it has not yet sunk in, is that the accident site was not under the employer’s control as contemplated by the Act. In that regard I cannot improve on Judge Michel’s reasoning, restated here:
Neither the parking area nor the road where the accident occurred was under respondent’s control in any sense. [A & S] did not own, maintain, or even have exclusive use of the area where [the employee] parked her automobile or the road where the accident occurred. Moreover, nothing in the record suggests that [A & S] had the power or authority to manage, direct, regulate, or supervise these areas. [The employer] simply had the right to use the area for customer and employee parking. The right to use is not equivalent to control.
Moreover, the fact that respondent directed its employees to park in a specific area does not constitute control of the area within the scope and intendment of N.J.S.A. 34:15-36 or transform an occurrence of the kind here involved into a compensable accident. In my view, the majority has in effect read out of the statute the phrase “excluding areas not under the control of the employer,” thereby undercutting the legislative purpose sought to be achieved by the 1979 revision of N.J.S.A. 34:15-36.
[216 N.J.Super. at 696 (Michels, J.A.D., dissenting).]
Amen. I would reverse and reinstate the judgment of the Division of Workers’ Compensation dismissing the claim petition.
POLLOCK and GARIBALDI, JJ., join in this opinion.
For affirmance — Chief Justice WILENTZ and Justices HANDLER, O’HERN and STEIN-4.
For reversal — Justices CLIFFORD, POLLOCK and GARIBALDI-3.