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Partial Responsibility for Parking Lot by Employer Results in Compensable Claim

By on October 26, 2016 in Compensability with 0 Comments

In Giordano v. High Point Insurance Company, No. A-4971-14T3 (App. Div. October 11, 2016), Michelle Giordano, an employee of High Point Insurance Company, was injured in a parking lot adjacent to a multi-tenant office building.  After parking in the lot, she fell on twigs and debris, injuring her right shoulder.  Her employer denied the claim based on the premises rule arguing that she was not at work until she got to the floor where her insurance company did business.

Giordano contended that High Point had 10 assigned parking spots in the lot in addition to another 12 parking spots for directors, management, and employees who won awards.  There were other tenants in the building who also assigned marked parking spots to their employees.  The key fact in this case was that the lease made High Point partially responsible for maintenance costs of the parking lot.

Giordano testified that High Point instructed other employees, like herself, to park in the spots that were “not marked.”  High Point did enforce the marked parking spots in the parking lot.  Giordano observed that there was no other on-street or off-street parking for a mile.

The Judge of Compensation found for petitioner, and the Appellate Division affirmed.  The Judge also awarded petitioner 15% permanent partial disability.  High Point appealed and argued that the premises rule barred recovery.  The court recited the main principle in parking lot cases.  “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred.”  The Judge of Compensation noted that High Point instructed employees where to park and where not to park, and it could do so because of its responsibility under its lease.

The Appellate Division reviewed a number of leading cases in recent years on parking lot injuries.  The court said that there was substantial proof that High Point had control over the parking lot.  The company leased parking area in the parking lot from the landlord and for its employees and invitees. The court said that this set of facts is quite different from the Hersh v. County of Morris case where the Supreme Court found a county employee not covered for workers’ compensation purposes on the way from the parking lot to work.  Here High Point controlled a fairly large number of parking spaces.  The court said, “Although High Point here did not add any special hazards by having employees park in the lot, it did control where employees parked by directing them to park in the spots that were not marked.”

The only way to square this decision with the decision in Hersh, which went against the petitioner, is to focus on the partial responsibility of the employer High Point for the parking lot.  The claimant here was actually not parking in the designated parking spaces but was still found to be covered for workers’ compensation purposes.  The claimant in Hersh did in fact park in the designated parking space that the County provided, but the county did not own or maintain the lot in question.  It just leased certain spaces for its employees.   The court seems to be saying that one does not use the “special hazard” test in the Hersh case where the employer has partial responsibility for maintenance of the parking lot.

 

 

 

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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