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Geaney: Employee's Parking Lot Injury Compensable

  • State: New Jersey

Cases involving parking lot injuries continue to generate divergent results in the Division of Workers’ Compensation and the Appellate Division. Walker v. Saker Shop-Rite illustrates this point yet again.

John H. Geaney

John H. Geaney

Ms. Walker, a 70-year-old employee, fell on Dec. 11, 2018, while walking to her car in the leased supermarket parking lot after completing her shift. Her injury was caused by stepping into a pothole.

A key fact was that petitioner admitted she parked in the side parking lot area rather than in the area designated for store employees out by the street. She never felt it was safe to park by the street, so she chose to disregard the store’s instructions and park near an area where employees would smoke and drink coffee.

She said there was a “cabana-type thing” on the side parking lot where employees gathered for a smoke or a cup of coffee. That is where she chose to park for 25 years.  She said she mentioned her decision once to an assistant manager of the liquor department years ago. Petitioner said other employees also disregarded the directive to park near the street.

Saker Shop-Rite had a fairly common shopping center lease in that the store agreed to pay a common area maintenance fee to the landlord based on its pro-rata share of the entire shopping center for maintenance, insurance, snow removal and other items.  There were eight or 10 other stores in the shopping center.

In 2018, Saker Shop-Rite agreed with the landlord to an amendment of the lease that would allow Saker to repave the parking lot and perform other traffic improvements.  Counsel for Saker Shop-Rite testified that this was done because the landlord did not want to make an application to the Planning Board in Neptune.

Saker Shop-Rite agreed to apply to the Planning Board, make the repairs and then submit the cost to the landlord for reimbursement. Well after petitioner’s fall, the store got approval from the Planning Board and made the repairs. This was a one-time event.

There was also testimony from the human resources manager about the designated parking area. She said that new employees were advised to park in the designated area near the street. She also would tell employees who were observed parking in non-designated areas to park near the street in the designated area. There was additional testimony that certain employees were responsible for gathering shopping carts scattered in the parking lot.

Following the trial, the judge of compensation ruled that petitioner’s fall was not compensable because it occurred in an area not under the control of Saker Shop-Rite. This decision was consistent with the New Jersey premises rule. The judge noted that petitioner “consciously chose to ignore Saker’s directive to park in the designated area.”  Petitioner appealed.

The Appellate Division reversed in favor of petitioner, relying on a number of factors, many of which are common to all parking lot leases:

  • The court said, “The accident occurred in the parking lot used by Saker’s customers, employees and vendors.” 
  • The court added, “Petitioner was walking to her car in the parking lot used by Saker when she sustained her injury.”
  • In a surprising finding, the court said, “We find inconsequential that petitioner, like other employees, chose to park in an area different from the area designated by Saker for employee parking.” The court excused petitioner’s conduct by observing that she was motivated by reasonable concerns for her own safety.
  • Interestingly, the court seemed to base its decision largely on Livingstone v. Abraham & Straus Inc. In that case, an employee of a department store in a mall was required to park in a distant location designated for employees and was struck by a car while walking from the designated lot to the store. The court observed that the employer in this case was deemed to have control over the lot because it required petitioner and others to park in a distant location. However, the court failed to mention that Ms. Walker was not injured walking from the designated parking area. She had never parked there for 25 years.
  • The court further observed that the respondent used the side lot to allow its employees to smoke and gather for coffee.
  • The court cited the common area maintenance charges, a standard in virtually every lease, as evidence of employer control. 
  • Finally, the court felt that the lease amendment allowing Saker Shop-Rite to repave the front parking lot was evidence of control of the lot, even though in the end the landlord had to pay for the work done.

This decision is unreported and therefore not binding on other courts. Nonetheless, it adds to a puzzling array of contradictory decisions on parking lot injuries where the employer does not own the lot.

The problem with this decision is simply that it makes no sense to base “control” on the designated parking area near the street in this case. This petitioner admitted she never parked there for 25 years. The petitioner in Livingstone was walking from the designated area when struck by a car. Ms. Walker was walking to an undesignated area where customers and some other employees parked.

It seems that the Appellate Division decision is a far stretch. “Employer control” was imputed to Saker Shop-Rite merely because some employees used the designated parking area, but none of them filed a workers’ compensation claim for injuries.

As to the petitioner, the judge of compensation’s reasoning was on point. Ms. Walker was just walking to her car in an area used by customers and employees, like any other parking lot where an employer leases space for its employees and customers. There was no added hazard as to her because she avoided the much longer walk by choosing to park close to the store. 

As to the designated parking lot, the evidence seemed more like a request than a requirement, since many employees apparently ignored the company policy with impunity.

Boilerplate lease issues, like common area maintenance charges, are a part of virtually every lease and clearly irrelevant to employer control. Only one fact in this case was problematic for the employer: The lease agreement originally entered into in 1992 was amended in 2018 to permit Saker Shop-Rite to repave the front lot. But that was done for the convenience of the landlord in avoiding the planning board application process.  It was a one-time repaving issue. In the end, the landlord had to pay for the repairs anyway, and they took place months after the accident.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.

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