Cases where employees are injured between parking their cars and entering their employer’s place of business are numerous.  “Going and Coming” cases have been decided over the years with courts making decisions that sometimes leave attorneys scratching their heads over the decisions in this area of workers’ compensation law.  The newest case decided by the Appellate Division, Cheryl Hersh v. County of Morris  also muddies the waters. 

The injured worker was employed by Morris County.  The County rented parking spaces for some if its employees in a private parking garage located about 2 blocks from there the employee worked.  The county gave the employee permission to park in the garage, and gave her a scan card to enter  the building and told her to park on the third level.  On the day of the accident the employee left her car parked in the garage, and after exiting the garage was struck by a car while crossing the street between the garage and her office, sustaining significant injuries.  The employee filed a workers’ compensation claim against Morris County, and the workers’ compensation Judge found in her favor  after a trial.   The workers’ compensation Judge found that parking lots such as the one where this employee was required to park, are under the control of the employer, and thus the employee is entitled to workers’ compensation benefits.  

The employer appealed the Judge’s decision, and the Appellate Division agreed with the Trial judge. The employer appealed again, and the Supreme Court of New Jersey reversed stating that Morris County did not own, maintain or control the garage, and only rented a small portion for the use of some employees.  The court found that  the employer did not derive a direct business benefit from paying for the use of this garage by its employees, nor have any control over the public street where the employee was injured.   The court looked at those facts and also stated that the employer had no control over which way the employee walked from the garage to her office.  The court thus held that in circumstances such as this, where an employee is injured on a public street, not controlled by the employer, the injured worker in not entitled to benefits under the workers’ compensation law in New Jersey.

This holding is opposite to the often cited case of  Livingstone v. Abraham & Strauss .  In Livingstone, an employee of a store in a mall was directly by her employer to park in a certain far away part of the mall parking lot so that closer parking spaces would be available for customers.   The employee was injured while walking from her car toward the building where she worked.  The court held that this employee was covered under the workers’ compensation law because the employer told the employee where she must park.  Comparing this case to the Hersh case above leaves one wondering why Ms. Hersh was denied workers’ compensation benefits.  My theory is that in the Hersh case the court found that there was no benefit to the employer by the employee parking in a distant lot, while in Livingstone there was a benefit to the employer.

If you have been injured, contact Stark & Stark today.