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Pyles vs. The Mentor Network, (39-2-0073, NJ Superior Court May 2013).
Petitioner slipped and fell on the floor of an elevator she intended to take to the employer's office on the third floor of a four story office building. The Judge of Compensation dismissed the claim concluding that the injuries did not arise out of or during the course of her employment. The Appellate Court affirmed the dismissal.
The facts revealed that the respondent was one of 14 or 15 companies in the building. They had approximately 140 employees working at that location and leased approximately 18% of the building's rentable space. There were no designated parking areas for employees of the respondent. The respondent did not maintain any of the parking lots, but rather this responsibility was that of the landlord. Respondent did not control where the employee should park nor how they should enter the building or go to the third floor to their work station.
The matter proceeded to trial and the Judge dismissed the claim based upon the fact that petitioner's employment had not commenced pursuant to N.J.S.A. 34: 15-36 which requires that the employee must arrive at the employer's place of business to report for work. The petitioner's contention that the elevator was under the respondent's control was denied by the Judge. The Superior Court affirmed the Judge's decision. There was no lengthy discussion or review of any case law.
A previous claim where the petitioner was injured when stepping into a freight elevator was deemed compensable in Ramos vs. M & F Fashions, Inc., 154 N.J. 583, 713 A.2d 486 (NJ 1998). In that matter, the Court determined that the employer did have control over the freight elevator since they used it occasionally to have their products moved from the lobby to the third floor of their building. The holding in that matter seemed highly questionable with strong dissenting opinions. Obviously, the facts in the Pyles matter were more straight forward but we believe the same conclusion should have been reached in Ramos
Lemus vs. Caterpillar Corporation, (L-1048-09; NJ Superior Court, May 2013).
In Lemus, the plaintiff filed a Civil Action against his employer contending that the removal of safety guards from a device which injured the plaintiff made it virtually certain that the plaintiff would be injured thereby overcoming the exclusive remedy provisions of N.J.S.A. 34: 15-8. In rejecting plaintiff's contention, the Superior Court reviewed and relied upon the more recent Supreme Court Decision in Van Dunk vs. Reckson Associates Realty Corp., 210 N.J. 449 (2012) in concluding that the plaintiff must prove that the employer's conduct was virtually or substantially certain to result in injury and not merely negligent or even grossly negligent. In reviewing the facts of this claim, the Superior Court noted that there was no evidence to support the fact that the employer removed the metal grate with the deliberate intention to injure the plaintiff or that there was a virtual certainty that such an injury would occur. The evidence simply revealed that the grate was missing not that it was deliberately removed. There were no prior safety violations that the employer refused to remedy and no evidence that the employer took any affirmative actions that impaired its' employees safety. The employer did not attempt to deceive the plaintiff, law enforcement or anyone else about the dangers present in the workplace. The Court noted that while the employer may have ignored various safety precautions and regulations, they were not convinced that the conduct amounted to an intentional wrong. Once again, the exclusivity of the Workers' Compensation Statute appears to be a strong defense to this direct civil action against the employer.
Sara L. De Long