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A workers’ compensation petitioner, Linda Burke, was employed on the tenth floor of a ten story office building.  After arriving for work and parking her car in the garage, she went into the lobby of the building, pushed the call button and, when it arrived, she approached the open elevator but she slipped and fell into the elevator car, suffering injury to her knee. Burke subsequently filed a petition for workers’ compensation benefits.

Burke’s employer, Investors Bank, was one of several tenants in the office building.  According to its lease agreement, Investors Bank did not maintain the office building. The lease reserved the right of the landlord over “Building Operations,” allowing the landlord to, among other things,  “change the arrangement and location of entrances or passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or other public parts of the [b]uilding.”

The judge of compensation denied Ms. Burke’s claim finding that  employer “did not dictate any specific entry into the lobby, nor mandate any specific use of one elevator or preclude the use of the stairways in order for [Burke] to gain access to the tenth floor office. And it is clear that the entryway, the lobby and the elevators are not in the control of employer.”  Burke appealed and argued that her injury was compensable because she was injured in an area controlled by Investors Bank, and her fall occurred in what was her only path of ingress to her office.

The Appellate Division agreed with the judge of compensation. The appellate court explained that N.J.S.A. 34:15-36 limits an employer’s liability only for injuries occurring in areas controlled by the employer.  Cressey v. Campus Chefs, Div. of  CVI Serv., Inc., 204 N.J. Super. 337, 343 (App. Div. 1985).   While there is no definition of the word “control” in the Workers’ Compensation Act, the New Jersey Supreme Court has stated that “control exists when the employer owns, maintains, or has exclusive use of the property.”   Kristiansen v. Morgan, 153 N.J. 298, 317 (1998) (citing Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 104 (1988)).

Burke’s accident was not compensable under workers’ compensation law because it occurred in a common area – the main lobby – that was accessible to any employee or visitor having business in the multi-tenant office building. Burke was injured as she was about to enter one of the several lobby elevators used by all the employees and visitors in the building. Neither the lobby area nor elevator were controlled by Burke’s employer, Investors Bank.

See Burke v. Investors’ Bank, A-1551-13T1
Burke v. Investors’ Bank; Docket No. A-1551-13T1

If you have been injured on the job, you need an experienced workplace injury lawyer. Call 732-442-5900 or 1-800-RITELAW (1-800-748-3529) and make an appointment with a workers’ compensation attorney at Joworisak & Associates.  You can schedule an appointment at our main office in Perth Amboy or one of our other convenient locations in New Brunswick, Jersey City, East Orange or Roselle.




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