Levine v. Haddon Hall Hotel

Clifford, J.

(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 *421here. Any effort to enlarge those holdings and thereby create a further exception to the “going and coming” rule should be resisted, particularly in view of the pains to which the respective courts deciding those cases went to contain their precedential effect and the scope of their influence (Hammond: “the question presented by this appeal becomes a narrow one,” 56 N. J. at 15; HiNardo: “The issue before us is a rather narrow one,” 118 N. J. Super, at 538).

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 *422their availability to employees was non-existent during the summer season, when this accident occurred, and severely limited at any other time. The arrangement, if such it be, was irregular at best.

As the majority indicates, during the busy season1 and on holidays employees were not permitted to avail themselves of hotel-controlled areas, which were reserved entirely for guests. During those periods the employees had to park wherever they could find space, including on the public street. Employees could use whatever spaces were not occupied by guests between shortly after Labor Day and the beginning of the summer season, holidays excluded, on a "first-come, first-take” basis; the rest were left to their own devices. Clearly, no parking space was furnished to any employee (except supervisory personnel), either near the hotels or distant therefrom, when this accident happened. Of equal clarity is the lack of support in the record for the majority’s reference to the lots as "usually reserved” for employees or as "employee parking areas” or as “facilities [employees] are normally permitted to utilize.” They were plainly an accommodation for the hotel’s paying guests, available to employees out of season only, on no systematic basis, and then only when not otherwise occupied.

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.

*423The judge of compensation made no specific finding with regard to those relative distances, but he did find that the accident site was 715 feet from the nearest edge of respondent’s premises2 and that a parking lot was "a block away” from North Carolina Avenue on which the Haddon Hall was located. Although the judge’s language in his findings may be read as suggestive of two separate parking facilities, I understand the testimony and evidence to mean that there was in reality one lot directly adjacent to the Chalfonte at the rear.3 Entrance was gained thereto either from North Carolina Avenue or from South Carolina Avenue. Anyone parking in this lot could walk through it to North Carolina Avenue, emerging directly across the street from the Haddon Hall. A map of part of the area, marked in evidence, indicates that the distance from the South Carolina Avenue side of the parking facility to the Haddon Hall Hotel is in the area of 415 feet, substantially less than the distance to the accident point. Hence, petitioner sustained his injuries considerably farther from the place of employment than the “block away” parking lot, clearly outside the critical area established by the majority.

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. *424Runnells Hosp., 129 N. J. Super. 77 (App. Div. 1973), afii’d o. b., 65 N. J. 324 (1974). I would so hold.

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 *425sidewalk it was not unreasonable for her to wait on the corner for the ride which originated in the parking lot.

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 *426a circle and the distance to the farthest reaches of an employer-provided employee parking lot as the radius. “Going and coming” accidents occurring within that circle, created in a patently arbitrary fashion, are now compensable. I see that concept as “impracticable of judicial administration and of but ephemeral foundation in any significant nexus between the journey and the employment,” Ricciardi v. Aniero Concrete Co., 64 N. J. 60, 63 (1973). A likely result is a gaggle of claims which I think should rightfully be barred.

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.