Petitioner testified that on the morning of January 9, 1990, she was employed by the respondent. She had arrived at work on January 8, 1990, for the purpose of working her shift from 11:00p.m. on January 8, 1990, until 7:00a.m. on January 9, 1990. After finishing her shift, she left St Peter’s Medical Center and crossed Easton Avenue to proceed to her car which she had parked the evening before in a parking lot which belonged to a bank. She slipped and fell on frozen snow and injured herself. The issue is compensability.
The parking lot wherein she had parked was concededly not the property of the respondent. Petitioner, however, contended that the only other parking available to her was a partially constructed parking deck on the Medical Center’s property.
No employee of the respondent directed the petitioner to park in said parking lot before petitioner’s workday began. At the time of her injury, petitioner was in an area common to the public and not in an area leased to or controlled by the respondent. The petitioner did not prove a prima facie case. NJ.S.A. 34:15-36 states in relevant part:
Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report to work and shall terminate when the employee leaves the employer’s place of employment excluding areas not under the control of the employer..” (Emph. Supp.)
Prior to the 1979 amendments, the New Jersey courts were broadly interpreting the “coming and going rule” in favor of petitioners for accidents occurring during routine travel to and from work. See Livingstone v. Abraham & Strauss, Inc. 111 N.J. 89, 96 (1988). In an effort to define and limit the scope of employment, the legislature in 1979 enacted amendments to the Workers’Compensation Act which in part provided a more specific definition of employment. (codified at N.J.S.A. 34:15-36). Livingstone V. Abraham & Straus, Inc., supra, at 100.
The phrase “… excluding areas not under the control of the employer” has, of course, been interpreted to find compensable those accidents occurring in areas under the control of the employer. Cressey v. Campus Chefs, Div. of CVI Service, Inc. 204 N.J. Super. 337 (App. Div. 1985). Control has been deemed to include areas that the employer owns, maintains, or designates for use by its employees. Livingstone v. Abraham & Straus, supra, at 104. In Livingstone, an employee of respondent Abraham & Straus was struck by a car in the parking lot of the shopping mall where she worked. The court found petitioner’s injuries to be compensable because Abraham & Straus had designated an otherwise underused area of the lot for use by its employees. The court also found that Abraham & Straus had exposed its employees to an added hazard by requiring its employees to park in a distant lot in order that its customers could enjoy the convenience of parking adjacent to its store, thereby enhancing the employer’s business interest Id. at 105, 106.
Livingstone, however, has largely been restricted by the New Jersey courts to parking lot situations in which the employer had exercised control. In Serranno v. Apple Container, 236 N.J. Super. 216 (App. Div. 1989), an employee was denied benefits for injuries he sustained in an industrial complex parking lot over which his employer had no control. The court specifically noted that unlike Livingstone, Serrano’s employer had provided a specific designated employee parking lot and therefore the entire complex surrounding the employee’s jobsite could not be deemed to be the employer’s premises.
Likewise, in N.J. Manufacturers Ins. v. Public Service, 234 NJ. Super. 116 (App. Div. 1989), the court denied an employee benefits where the employee, approximately two (2) miles from the job site, had an accident while driving to work along an access road owned by his employer. The court found that the employer had exercised no control over the roadway and there was no indication that the employee was exposed to an added risk created to enhance the business interest of the employer. In the case at bar, it is undisputed that petitioner had finished her shift and was off the employer’s premises when the accident occurred. In fact, the site of the accident was located across Easton Avenue, a public throughfare. No proofs were submitted by the petitioner that St. Peter’s owned, maintained, or had the power to designate the bank’s parking lot for use by St. Peter’s Medical Center’s employees. Petitioner testified that no one had directed petitioner to park in the bank’s lot and no employee of St. Peter’s Medical Center had patrolled the lot. It was petitioner’s decision to park in the bank’s lot despite the availability of onsite parking. Accordingly, under Livingstone, the petitioner has failed to produce any evidence to show that St. Peter’s Medical Center owned, maintained, or controlled the area where petitioner fell.
Likewise, petitioner has failed to introduce any evidence from which an inference can be drawn that the petitioner was exposed to an added hazard created by St. Peter’s Medical Center to enhance its own business interests relative to the bank parking lot. St. Peter’s provided onsite parking. Admittedly, had petitioner fallen in the lot located on St. Peter’s Medical Center’s premises, petitioner would be entitled to workers’compensation benefits; but such is not the case here. The alleged hazard created by the frozen snow in the bank’s parking lot is unconnected to petitioner’s’employment and was not imposed upon petitioner as a requirement of her employment. Petitioner had a number of available places to park but the place chosen was not owned, maintained, or controlled by St. Peter’s Medical Center. Petitioner argues that she had an understanding that if she did not want to park in the employer parking lot, she could go across the street to park. Respondent submits that petitioner’s understanding of where she could park (which included the bank’s parking lot), even if correct, is as a matter of law irrelevant. The power of the respondent to control the bank parking lot must be established by persuasive evidence — evidence not forthcoming here.
Judgment for respondent.
93 N.J.A.R.2d (WCC) 70, 1992 WL 547204 (N.J. Adm.)