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Manole v. Carvellas12/6/1988
Plaintiff Theresa Manole, whose husband Leon Manole sues per quod, appeals, on leave granted, from a summary judgment dismissing her personal-injury automobile-liability action against defendant Thomas Carvellas. The issue raised by this appeal is whether, at the time of the accident, Carvellas was plaintiff's coemployee. The resolution of this issue is dependent on whether Carvellas had, at that time, already commenced work within the intendment of the so-called going and coming rule. Guided by the principles recently articulated by the Supreme Court in Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988), we conclude that Carvellas had not yet then commenced work and hence that there is no bar to this action based on the exclusivity of the workers' compensation remedy. Accordingly, we reverse.
There is no substantial dispute of relevant fact. According to the record on defendant's successful motion for summary judgment, both parties were employed by Abraham & Straus, Inc. (A & S) in its Paramus Park store on December 13, 1984. Plaintiff was a full-time employee whose shift ended at 6:00 p.m., and defendant was a part-time seasonal employee whose shift began at 6:00 p.m. The accident took place shortly after that hour.
Explication of the manner in which the accident occurred requires a geographical context. Paramus Park is a large shopping center in Paramus, New Jersey, anchored on the north end by A & S and on the south end by Sears. As we understand the record, the shopping center lies between Route 17, a north-south highway, on its west and the Garden State Parkway, also a north-south highway, on its east. The center does not abut Route 17; access from the west is afforded by two public streets running easterly from Route 17, A & S Drive and, to its south, Sears Drive. Each is a four-lane thoroughfare with two lanes for each direction. The easterly terminus of each of these streets is Ring Road, another four-lane thoroughfare,
which, more or less, encircles the shopping center, giving access to its numerous parking lots. Ring Road, we understand from the record, is not a public street.
Ordinarily, A & S employees were required to park in those northerly lots of the shopping center designated 12 to 14, which were also available to customers choosing to park there. We gather that from time to time A & S management wished to have all of lots 12 to 14 available for its customers and at predetermined times, directed its employees to park in a southerly, so-called Sears lot. These lots were a considerable distance from A & S, and A & S accordingly provided its employees with shuttle service between the store and the Sear's lot. At the time in question, such service was being provided by A & S's independent contractor, defendant Tenafly Taxi, by way of a van operated by Tenafly Taxi's employee, defendant William M. DiIorio. Plaintiff left the A & S store at her regular quitting time and, together with other employees, there boarded the van for transport to the Sears lot. The van's route was southerly on Ring Road, past its intersection with A & S Drive to Sears Drive. It would then make a right turn onto Sears Drive and then a left turn off Sears Drive into the designated parking lot. The distance was approximately a mile.
Defendant Carvellas came to work that day to start his 6:00 p.m. shift by his customary route: east off Route 17 onto A & S Drive to its T intersection with Ring Road. In order to park in the northerly lots, he would then have turned left onto Ring Road. On this day, be
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