The Supreme Court's Decision in Hersh is having a Ripple Effect on Course & Scope of Employment Litigation


Category: New Jersey

The Superior Court of New Jersey Appellate Division decided the case of Burke vs. Investor’s Bank on March 16, 2015, and in denying the claim for benefits the Court relied extensively upon the Supreme Court decision in Hersh vs. The County of Morris, decided in 2014.

In Burke, the petitioner was an employee of Investor’s Bank. On December 3, 2012, she parked her car in the parking garage of the office building where there were no assigned spaces. Investor’s Bank is one of five tenants in a 10-story office building and occupies the tenth floor and part of the ninth floor. The lease between the employer and the landlord allowed the landlord to control the entrances, passageways, doors, corridors, elevators and all other public parts of the building. The employee entered through one of the two building entrances and walked through the lobby towards one of several elevators to take her to the 10th floor. As she entered the elevator, she slipped and fell suffering a knee injury.

The Workers’ Compensation Judge (WCJ) dismissed the claim and denied compensability. The Judge had no problem distinguishing two more liberal cases finding compensability (Ramos vs. M&F Fashions and Brower vs. ICT Group). In the cases argued on behalf of the employee, the Judge noted that the Ramos case involved an elevator that was used not only to transport employees, but also to move the employer’s products. In the Brower case, the Judge noted that the employees used the staircase where the employee fell exclusively and thus was under the control of the employer. Neither of those facts were applicable in this case.

The Appellate Division went through a thorough review. It relied heavily upon the Hersh decision noting that public places not under the control of the employer are not considered to be part of the employer’s premises for purposes of workers’ compensation benefits even if the employee uses the route for ingress or egress to the place of employment. To carve out an exception, the employee must prove that the employer controls the route.

Comment: It appears that the favorable Supreme Court Decision in Hersh is having a clear effect on the decision making of both Workers’ Compensation Judges and the Appellate Division and limiting cases such as Ramos and Brower to their facts. This is certainly a good sign for employers.

For more information, please contact Jeffrey D. Newby at or 856.667.5804.


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