A Car Park Injury In New Jersey – Thoughts From A Longshore Perspective
It was just after 10.00 p.m. on the night of September 19, 2012 that a worker in New Jersey drove their car out of their employer’s parking lot onto a public highway. As the car entered the highway, another car collided with it, striking the driver door, injuring the worker. The picture below is included in the court’s decision. The case is Carla Burdette v. Harrah’s Atlantic City, Superior Court of New Jersey, Appellate Decision.
It was not a decision related to the relative culpability of the drivers for the collision, as one might expect, but one determining whether the New Jersey Workers’ Compensation Act covered the injured worker. The question was whether the worker was still in the course of their employment when the accident occurred. The judge found that the worker’s car had left the car park, but not completely. No matter how little or how much, the car was still in the car park, and, applying New Jersey precedent, that meant the worker was still in the course of their employment. The employer, unsurprisingly, begged to differ, and appealed. They maintained that the accident occurred on the highway, and the injuries resulting from the accident also occurred on the highway. The appellate court remarked: “We disagree”.
The court wrote:
“The statute provides that "[e]mployment 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." N.J.S.A. 34:15-36.”
They further said that “[t]he circumstances of the present case plainly reveal that [the worker] never fully left [the] employer’s premises…We reject [the employer’s] ultra-rigid approach that focuses only on the colliding vehicles’ point of impact and the front seat location of [the worker]….Instead, applying common sense and the policies inherent in the Act, we subscribe to the judge of compensation’s viewpoint that the injuries suffered here were a result of [the worker’s] firm attachment to her place of employment, albeit while on her way home”. De minimis curat lex, perhaps.
Presumably, had the accident occurred on the way to work, and the worker’s car been pushed a smidgeon over the line into the parking lot, resulting injuries would also have been compensable.
With no disrespect to the court, it is perhaps possible that another outcome might have been reached; and it is possible that “common sense and the policies inherent in the Act” might allow for different results, depending on whose “common sense” is used. To call the employer’s argument “ultra-rigid” is at best unkind. One might argue that it is “ultra-rigid” to construe “when the employee leaves” to mean “when the employee’s car has left” the premises. But those of us battling the obscurity of federal law regard as very small beer the eccentricities of state laws.
Welcome to the wonderful world of the Longshore Act, (“LHWCA”), (codified for the curious at 33 U.S.C. §§901 et seq.). The Act passed in 1926 because the Supreme Court of the United States decided in 1917 in the case of Southern Pacific Company v. Jensen, (244 U.S. 205) that States could not extend their workers’ compensation statutes to cover maritime employees injured on navigable waters. Only a federal workers’ compensation statute would do. So there was a line at the water’s edge, the “Jensen” line. On the shore side, state law applied; on the seaward side, federal maritime law applied. Thus, the Longshore Act was born with a boundary. And with the boundary, obfuscation began even before the Act was passed. Those in the know will be muttering the mantras of “maritime but local”, “twilight zone”, and “concurrent jurisdiction”. Patience. Those are for another day.
The State Historical Society of Wisconsin in their Wisconsin Magazine of History Vol. 57, No. 2, Winter, 1973-1974, published a history of the State’s workers’ compensation statute of 1911, by Robert Asher. It includes a photograph of stevedores unloading a freighter in the port of Milwaukee between 1905 and 1910. Three men in suits are watching two men in overalls heave a barrel on a hand truck up a (rather dilapidated) gangplank onto a (rather dilapidated) pier. The worker at the front, pulling the cart, has the sole of his left foot on a plank on the pier. His left heel seems raised, but over the water. His head is over the pier, but his shoulders and chest appear to be half over the pier and half over the gangplank, over navigable waters. Is he covered by state law or by federal law? In such cases, as we noted before, de minimis curat lex. It is on small differences that large results turn. His companion, shoving the load from behind, is clearly on the gangplank, over navigable waters and so would be covered by federal maritime law, rather than by the state law of 1911 enacting workers’ compensation in Wisconsin. But that was not known at the time. Christian Jensen, the worker whose name is used for the supposed line of demarcation, was killed in 1912. (He appears to have been working in a somewhat similar situation. He was driving an electric truck on the gangplank of the El Oriente and hit his head on the opening into the vessel, broke his neck and died, in much the same place as the second worker in the picture). It was not until 1917 that the Supreme Court announced the Jensen decision.
The rigid line, later embalmed in the Longshore Act, lead to some interesting results. A worker fell from the ship, and died when he hit the pier. He was held covered under state law. A worker fell from the pier into the harbor. He was held covered under the Longshore Act. Which Act was more beneficial to the worker? I have not studied the relative values under the various acts. But since 1972, when the Longshore Act was amended, it is likely that most workers would, if killed or seriously injured, be better compensated under LHWCA. (Those that did better under state acts, probably did worse after the reforms of the various states passed since 1980. But this too is a discussion for another day).
Looking at the picture, we can see that they will both be covered under the state act when they reach the pier and wheel the barrel to its point of rest on the pier or in the warehouse. They will return to maritime law as they step onto the gangplank to get the next barrel, and into state cover again as they unload it. They will walk (or struggle – these barrels are not light) in and out of cover all day. To fix this problem, Congress amended the LHWCA to extend its reach landward. They limited the landward reach to accidents occurring “upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, of other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” So now both workers would be covered by the LHWCA all day. Of course, a line still remains. It has simply moved landward. Could the New Jersey case occur under the LHWCA? Of course it could. But there would be an added twist. Not only must there be an employer-employee connection at the time of the accident. The accident itself must also be on a covered location. So if the car park had been owned by the employer, but located on the other side of a highway, the worker would have to prove the car park was an “adjoining area”. And the answer would have us going round in Circuits. Different circuits, different results. The only certainty is that there will be uncertainty.