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Spotlight on “Going and Coming” Rule


Spotlight on “Going and Coming” Rule

November 3, 2016

 On October 11, 2016, the Superior Court of New Jersey, Appellate Division re-affirmed the established “going and coming rule” of the New Jersey Workers’ Compensation Act. According to N.J.S.A. 34:15-36, employment begins when an employee arrives at the employer’s place of employment to report to work and terminates when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer.

In Giordano v. High Point Ins. Co. et al, A-4971-14T3, the Appellate Division held that a worker who was injured in a parking lot sustained a compensable accident. In doing so, it turned to the two factors that must be considered in examining the premises rule: whether the employer owned the property, and whether the employer had control of the property on which the accident occurred. The court acknowledged that High Point did not own the parking lot, but noted that it had control over the parking lot. The factors the court considered in declaring High Point had control were:

  • High Point leased area in the parking lot from the landlord for its employees and invitees;
  • Per the lease, High Point was responsible for a portion of the operating expenses;
  • High Point directed employees by telling them to park in certain spots;
  • High Point’s representative confirmed that High Point enforced the assigned spots; and
  • There was no on- or off-street parking for more than a mile, so High Point controlled the ingress and egress to work by providing employer parking and directing employees where to park.

In light of these factors, the court found the injury compensable because it occurred in a parking lot High Point was partly responsible for maintaining. Although the respondent lost the appeal, the court’s rationale is consistent with established case law, which is important when examining issues that are very fact sensitive — and where a single fact can alter the outcome of the case, for better or worse.

Indeed, this decision does not pose a threat to the strong defense held by respondents in New Jersey. Nonetheless, it is a reminder for respondents to remain vigilant about the properties they occupy. An accident occurring in a space not owned by an employer — and even in spaces beyond the physical employment site — can still be deemed compensable. As this decision shows, the court will focus on whether the employer controls the location of the injury. As such, it is important that employers understand that activities such as assigning parking areas, maintaining responsibility for snow removal, or dictating modes of ingress and egress to the employment site translate to control. Control leads to liability in the scope of the going and coming analysis. Where possible during negotiations of lease agreements, employers should avoid responsibility for maintenance — or payment for maintenance — of locations outside of the actual employment site.

Members of Goldberg Segalla’s Workers’ Compensation Practice Group stand ready to assist employers with any questions or concerns regarding this decision. For more information, please contact: