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.
