31 N.Y.2d 215 | NY | 1972
Lead Opinion
Appeal is taken by the Workmen’s Compensation Board from an order of the Appellate Division, Third Department, which, with two Justices dissenting, reversed a decision and award of the Workmen’s Compensation Board and dismissed the claim.
Claimant, a resident employee of a summer camp distant from his home, was injured during off-duty hours while engaged in gymnastics in the recreation hall of an adjacent camp, the regular use of the recreation hall by claimant and his coemployees being with the knowledge and acquiescence of the management of that camp and of claimant’s employer as well. These facts are not disputed and the issue arises upon the board’s application of the statutory and decisional law. The great
As has been indicated, the facts are not in dispute and are well summarized in the prevailing opinion at the Appellate Division, as follows: ‘ ‘ The claimant was a minor, 16 years of age, who worked during the summer as a kitchen helper and waiter at a camp operated by the respondent, located about 30 miles from New York City. He was required to live at the camp, serve meals in the dining room, wash dishes and clean up the kitchen in return for board and lodging and an incentive merit bonus at the end of the year. * * * At the end of July there was a three-day break in the camp’s program. The claimant was allowed to go to his home in New York City, but was instructed to return on Sunday evening, July 29, 1968 and be ready to work the following morning. The claimant returned Sunday evening, as directed, and since he had free time he and some of his coemployees walked down the road to a nearby camp which they had frequented before to the knowledge of the employer. There they went into the recreation hall and did gymnastics. During the course of play, claimant fractured his knee cap and the board awarded him compensation.” (37 A D 2d 317, 318-319.)
One aspect of the factual situation may be outlined in more detail. The recreational facilities of the adjoining camp were regularly used by claimant and others of employer’s staff on their off-duty hours. This practice was known and allowed both by employer and by the management of the other camp. The employer’s executive director acknowledged that on occasion he had upbraided his employees for their behavior there when complaints were lodged by the adjoining management, but there is no indication he had forbidden the practice; and when asked whether he knew of his employees’ use of the neighboring facilities, replied, “ Of course ”. Clearly, then, the use of these facilities was with the implied approval of the employer, and neither the majority below nor any of the parties dispute this. As will appear, these facts are important as they sustain one of the alternative grounds for affirmance of the award advanced by the dissenters at the Appellate Division — that “ the recreational facilities were in fact an incidental adjunct to the employ-.
The board found ‘ ‘ that claimant was injured * * * while engaged in a recreational activity which was known and permitted by the employer, and constituted a reasonable incident of the employment ” and directed an award.
There is abundant authority that the employment status continues during the normal activities of an employee required to travel or sojourn at a distance from his home. (Matter of Leonard v. Peoples Camp Corp., 9 A D 2d 420, 422, affd. 9 NY 2d 652.) With respect to both “ sojourn ” and “ travel ” the rule seems to derive from Matter of Davis v. Newsweek Mag. (305 N. Y. 20), a travel case, in which we said that “ the. rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment ” (p. 28; emphasis as in original).
In the case at bar, the rationale of the reversal at the Appellate Division evidently rests on two grounds, each involving a lihe of cases inapplicable to the undisputed factual situation existing in this case: first, that the accident did not occur on the employer’s premises; second, that the recreational activity was a purely personal affair which could not give rise to a compensable accident. Contrary to the first contention, we have affirmed numbers of awards for accidental injuries sustained by away-from-home employees engaged in recreational activities off the employer’s premises; indeed, one would expect, in view of the basis of the rule favoring away-from-home employees, that many of the compensable accidents thus covered would normally occur away from the work premises. Contrary to the second contention adopted at the Appellate Division, recreational activities within the ambit of the rule are not purely personal activities within the rule of interdiction, as otherwise, obviously, there would never have been an award in any recreation case. The two grounds thus advanced by the Appellate
The first ground of the reversal, predicated upon Matter of Congdon v. Klett (307 N. Y. 218), was that the accident occurred off the premises but that factor was incidental to the denial of the award in Gongdon, which did not come within the rule hereinbefore stated primarily because claimant Gongdon was not an awáy-from-home employee and was not — and this is crucial — “ ‘ directed, as part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time.’”
Thus, neither Gongdon nor the portion of the Larson text there quoted supports the order appealed from. Ample basis for the award is, on the contrary, to be found in a number of pertinent authorities.
The cases present minor differences but all of them involve the central issue of an employee, required to work and stay at a place distant from home, injured while engaging in recreation of one sort or another during the idle hours which perforce occur during that kind of employment. The cases cited indicate, also, the error in the contention advanced in the case at bar that an injury in the course of recreation must occur on the employer’s premises in order to be compensable, as that supposed requirement did not obtain in any of these cases, except as in Leonard the lake in which the employee drowned happened to belong to the employer but the employee was not hired to work on the lake and there seems no basis for considering that the award which we sustained in that case would have been denied had legal title to the lake been in some other owner or, as in the other drowning cases, in the public. But even if there
The other basis suggested for the reversal — that the gymnastics constituted a “personal” act within the meaning of Matter of Kaplan v. Zodiac Watch Co. (20 N Y 2d 537, supra) — is equally tenuous. Claimant Kaplan tripped and fell when stepping into his trousers, a normal and routine act of dressing performed daily, at home and abroad. As Judge Btjbke succinctly put it in Kaplan (p. 540): “ Where an accident is attributable solely to the personal acts of the claimant, and cannot be attributed in any way to the environment into which the employee has been brought by his employment, the provision of compensation for resulting injury or death hardly seems to come within the intent or purpose of the law.” (Emphasis as in original.) In the case at bar, differing from Kaplan, the environment is the very foundation of the recovery, being that of a summer camp to which claimant was rather closely confined, distant from his city home and secluded from most forms of entertainment and recreation. Thus, within the Davis rule, his participation, at the nearby recreation hall, in some form of exercise was a “ reasonable activity ” and “ the risk inherent in such activity [was] an incident of his employment.”
The order appealed from should be reversed, with costs to the Workmen’s Compensation Board, and the award reinstated.
. A separate award in the same amount was made against the employer alone as a penalty under section 14-a of the Workmen’s Compensation Law for failure to require filing of claimant’s working papers (Labor Law, § 132).
. It will be recalled that the present claimant was thus closely restricted.
. The fairness of the rule is well exemplified in the case before us in which the fact that the 16-year-old claimant received no compensation, other than board and lodging, for the menial labor performed suggests most strongly that the availability of the recreational facilities, enjoyed with the implicit approval of the employer, constituted an inducement for, and part of the contract of employment (Matter of Simons v. The Hedges, 286 App. Div. 1044, supra).
Dissenting Opinion
(dissenting). The rather limited question presentéd to us is whether, on the uncontroverted facts, claim
The majority correctly perceives that when employment removes the employee from his home town and places him in a new environment, injuries will often be deemed work-connected and compensable even though the employee was not actually on the job when he was hurt (see, e.g., Matter of Kaplan v. Zodiac Watch Co., 20 N Y 2d 537, 539; Matter of Miller v. Bartlett Tree Expert Co., 3 N Y 2d 654). As this court explained in Matter of Davis v. Newsweek Mag. (305 N. Y. 20, 27-28), a case upon which the majority relies, if an employee is ‘ ‘ directed, as part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time * * * the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.” (Emphasis in original.) But this very same case also states that this factor alone does not make all accidents compensable. Injuries arising out of purely personal pursuits, having no direct relation to employment, will not be compensable simply because they occur while the employee is away from home (id., at p. 26). Of special relevance to the matter at bar is the following statement: “ Neither is an injury resulting from recreational activity compensable, where such activity is carried on on the employee’s own time and off the employer’s premises, though the employer has sanctioned and given financial assistance to such activity” (Matter of Davis v. Newsweek Mag., 305 N. Y. 20, 26-27, supra).
Thus, though a change in environment may create a greater* risk of injury, a compensation order ought not be sustained unless there is some casual connection between the accident and the new environmental factor (Matter of Kaplan v. Zodiac Watch Co., 20 N Y 2d 537, 540, supra). In other words, workmen’s compensation should not be awarded if the “ accident is
Turning to the claim before us, it is evident that, examining the nature of the accident and the place and circumstances under which it transpired, claimant, on his own time and off his employer’s property, was engaged in a purely personal pursuit. The accident was in no way attributed to the environment; rather it was the result of claimant’s decision to engage in a form of athletic recreation, a very normal activity for a 16-year-old and one which he could have engaged in at home.
Accordingly, the order should be affirmed.
Chief Judge Fuld and Judges Burke and Bergan concur with Judge Gibson ; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Breitel and Jasen concur.
Order reversed, with costs to the Workmen’s Compensation Board against the employer respondent, and the award reinstated.