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West American Insurance Company v. Gonder

A-1153-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

WORKERS COMPENSATION—To determine if worker compensation rules apply when an employee, present as a customer at his or her place of business, is injured, a court should look to see if the employee was giving his or her employee more than an incidental benefit at the same time.

A diner employee fell and injured herself at the diner where she worked. She arrived at the diner at 8:20 a.m., intending to eat breakfast before her shift, which started at 9:00 a.m. She served herself. As she was returning from the kitchen to the dining area, she slipped and injured herself as she used her foot to flatten a rumpled mat in front of the kitchen door. She sued the diner for damages.

The diner’s insurance company contended that her sole remedy against her employer was to seek workers compensation. The insurance company argued that even though her shift had not started, the risk was reasonably incidental to her employment and her conduct in attempting to eliminate a tripping hazard was for the benefit of her employer. The employee claimed that her presence at the diner was purely personal, to have breakfast before her shift started. She argued that the injury did not arise out of, or in the course of, her employment. Thus, she contended that she should have been allowed to sue the diner.

The lower court concluded that the employee was serving her employer’s interest by arriving early at work and by attempting to eliminate the tripping hazard. The Appellate Division disagreed. To be covered by the workers compensation bar, it must be established that the employee’s work was at least a contributing cause of the injury and that the risk of the occurrence was reasonably incident to the employment. They issue is whether the employee was serving her personal interest or furthering the interests of the employer. In this case, the employee arrived at work early for her own purposes and convenience. The Court appreciated that the employee’s decision to go to work early to eat breakfast was partially done to insure her punctuality and thus was an incidental benefit to her employer. However, that incidental benefit was not so substantial, nor so intimately related to the occurrence, that it should preclude the employee from pursuing her claim for damages.


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