41 N.Y. 219 | NY | 1976
Lead Opinion
This personal injury action arises out of an accident which occurred on June 25, 1970. The infant plaintiff, Christopher O’Rourke who was then 10 years old, had been illegally
On October 5, 1970, a claim for workmen’s compensation was filed on behalf of the infant plaintiff with the Workmen’s
We find that it was error for the courts below to have passed upon the merits of the plaintiffs’ tort claim with respect to the defendant Long Island Press. The "defense” raised by the newspaper was that of workmen’s compensation, an argument which questions the right of plaintiff to present a claim, whatever its merit, in court. It is axiomatic that, as to an employer, where workmen’s compensation provides a remedy, the remedy that it provides, save for the rare case, is exclusive. Where liability is imposed upon an employer to provide workmen’s compensation and compensation is provided, that liability is exclusive and in the stead of any other employer liability whatsoever. The initial question to be resolved whenever a defense of workmen’s compensation is presented is whether the plaintiff has a right to bring a plenary action. If the right to sue the employer has been stripped away by workmen’s compensation coverage, it is an arrogation of jurisdiction to consider a tort complaint on its merits. By considering a complaint on its merits, particularly if the plaintiff is permitted to put in favorable proof at a trial, the employer would be subject to fending off liability in a forum from which the Legislature provided a shield. Here, over thrice repeated objections, the employer was put to lengthy and expensive pretrial and trial proceedings before a tribunal that was without authority to impose tort liability.
It is well recognized that the compensation statute was designed to provide a swift and sure source of benefits to the injured employee or to the dependents of the deceased employee. The price for these secure benefits is the loss of the common-law tort action in which greater benefits might be obtained. Thus, unless the employee can establish the existence of a limited number of exceptional circumstances, the sole remedy is workmen’s compensation.
In this case, the plaintiffs presented and relied upon two arguments to sustain the availability of the tort action: that the infant was not an employee and that the defendant failed to prove that it had secured the payment of compensation. Both contentions raise questions of law which should have been rejected by the courts below.
Ever since January 1, 1962, the work of newspaper carriers has been defined as hazardous employment for which the
For purposes of the Workmen’s Compensation Law only, the term employer was statutorily defined to include "a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation who delivers or causes to be delivered newspapers or periodicals for delivering or selling and delivering by a newspaper carrier under the age of eighteen years as defined in section thirty-two hundred twenty-eight of the education law.” (Workmen’s Compensation Law, § 2, subd 3.) The term employee was defined to include newspaper carriers under the age of 18 as defined in the Education Law and the term of employment was stated to include the delivery or sale and delivery of newspapers and periodicals as defined in the Education Law. (Workmen’s Compensation Law, § 2, subds 4, 5.) The Education Law states that a newspaper carrier is a minor between the ages of 12 and 18 who "engages in the occupation of delivering or selling and delivering newspapers or periodicals to customers at their homes or places of business.” (Education Law, § 3228, subd 1.)
In their complaint, plaintiffs alleged that the boy was engaged by the defendant Long Island Press as a "newspaper deliverer” and this was admitted by the defendant. The plaintiffs’ argument is that since the boy was underage he was outside the Education Law definition. However, the Legislature in developing the statutory definition had no need to include minors under 12 within the definition since these children were absolutely prohibited from engaging in such employment. Moreover, the plaintiffs overlook section 14-a of the Workmen’s Compensation Law which states that an employer who knowingly permits or suffers a newspaper carrier to work in violation of the Education Law is liable for a double award. It could scarcely be comprehensible that the Legislature would provide for a double award in cases of employer knowledge of illegality, as it did, when, as plaintiffs
As a second ground for the maintenance of the action, plaintiffs argue that the defendant failed to produce sufficient proof that it has obtained compensation insurance coverage for newsboys in general and for the plaintiff in particular. If the defendant did not in fact secure its obligation as required by law, plaintiff would have an election between compensation and plenary suit. However, plaintiff did not allege this second and alternate theory for avoiding the application of workmen’s compensation in his complaint. The sole basis for plaintiff’s plenary action was that there was no employment relationship between the infant plaintiff and the defendant Press. This issue, by virtue of statute (Workmen’s Compensation
The case of Dashinsky v Santjer (32 AD2d 382), relied upon by plaintiffs, is also quite distinguishable. In that case, the defense of workmen’s compensation was not pleaded in the answer to the complaint and was not raised until the appeal of plaintiff’s verdict to the Appellate Division. The Appellate Division recognized that the tort plaintiff carries the burden of disproving compensation coverage and refused to permit a
Although not pleaded or argued by the plaintiffs, there is a third theory which would, if accepted, open up a tort action against the employer. Some members of the court are of the view that the injury sustained by the employee, because of the deviation from newspaper delivery, did not occur in the course of employment. If that were the case, workmen’s compensation would not provide a remedy and workmen’s compensation cannot be an exlclusive remedy if it is no remedy at all. (See 65 NY Jur, Workmen’s Compensation, § 77, p 442.) The compensation liability of an employer is exclusive only if the injuries arose out of and in the course of employment. Of course, if the injuries were not sustained in the course of employment, as some in our court would contend, the likelihood of a tort recovery, based upon common-law principles, would be equally tenuous. An injury sustained outside of the course of employment would, in most conceivable situations, lack the necessary common-law connection to the fault of the employer. However, it is possible that, in the close case, the Workmen’s Compensation Board might find one way (negatively) and a jury, if properly given the issue, another (positively). However, in a tort action, it is scarcely within the usual interest of the plaintiff to argue that his injuries were sustained outside the course of his employment. Similarly, the employer is usually all too willing to concede that the injuries were sustained in the course of employment. In that fashion,
The existence of an employer-employee relationship in which an industrial accident has occurred is jurisdictionally vital to the maintenance of a workmen’s compensation proceeding. (Matter of Martin v C. A. Prods. Co., 8 NY2d 226, 230.) A decision of the Workmen’s Compensation Board is final on all questions within its jurisdiction, unless reversed or modified on appeal. (Workmen’s Compensation Law, § 23.) With respect to a board determination that a particular injury was or was not sustained in the course of employment, the judicial appellate function is limited. Where the employee was an outside employee, an employee without a fixed place of employment, the board is given an especially wide latitude. (E.g., Matter of Anadio v Ideal Leather Finishers, 32 AD2d 40, 42 [Cooke, J.], mot for Iv to app den 25 NY2d 737; Matter of Gruntler v Home Reader Serv., 19 AD2d 670, 671.) It is the rare case in which board findings are set aside as a matter of law, and even in those rare cases dissenting voices have been heard. (See Matter of Kaplan v Zodiac Watch Co., 20 NY2d 537, 539; Matter of Pasquel v Coverly, 4 NY2d 28; compare Birdsall v Peters, 46 AD2d 11, and Matter of Flynn v News-day, 28 AD2d 1053 [finding of course of employment sustained where newsboys injured in bicycle falls while en route to pick up the newspapers], with Matter of Taber v Abraham, 3 AD2d 776 [finding of course of employment reversed where newsboy went to Little League practice and was injured in a bicycle fall en route from practice to picking up his newspapers].)
In any event, an adjudication by the board that there was a relationship between accident and employment, unless reversed on a direct appeal, would preclude any recovery in a civil action against the employer. (Matter of Coe v House Inside, 29 NY2d 241, 244.) Moreover, the board has the discretion to process a claim for compensation and render a decision, even though the claimant objects and even though a
Christopher O’Rourke then must be remitted to the remedies available through workmen’s compensation and the tort action against the Long Island Press was, thus, properly dismissed. His earlier rejection of the initial payment proffered by the defendant’s compensation carrier should not be
One final matter deserves comment. The existence of a compensation insurance policy was made apparent in the course of extensive disclosure proceedings which involved no less than three separate court orders. None of this information was contained in the appendix filed by the appellants. The first motion to dismiss the complaint is reported not in the filed appendix but in an appendix to the appellants’ brief. The arguments advanced on the motion, as well as the arguments advanced on the two similar motions made during the trial, are not presented at all. This information was not presented at oral argument of this appeal either. As a result of the failure of counsel to report facts essential to a proper disposition, the members of the court have been "compelled to disregard [the appendix] and laboriously discover the facts for themselves by reading the entire record. This involves great labor, which * * * might be avoided by a careful observance of the” CPLR requirements. (Stevens v O’Neill, 169 NY 375, 376-377.) The CPLR requires that the appendix, which is prepared by the appellant, contain "only such parts of the record on appeal as are necessary to consider the questions involved, including those parts the appellant reasonably assumes will be relied upon by the respondent”. (CPLR 5528, subd [a], par 5.) Our own rules require that the appendix consist of relevant judicial or administrative opinions and decisions in the case, as well as "so much only of the testimony, affidavits, and written or photographic exhibits as may be useful to the determination of the questions raised on the appeal”. (Rules of Court of Appeals, 22 NYCRR 500.4, as amd eff Jan. 1, 1977.) We find that the appendix presented to us on this appeal was inadequate since the prior judicial determinations within the action and the arguments presented to the courts were not fully reported and the first summary judgment motion was discussed only in an off-hand manner. Moreover, evidence respecting the vital issue of compensation coverage was completely absent. We have had to search the full record of this case ourselves, thereby "multiplying the time necessary for the proper consideration and disposition of
Subdivision 5 of section 3228 of the Education Law prohibits minors under the age of 12 from engaging in the occupation of delivering or selling and delivering newspapers.
Dissenting Opinion
At the trial of this case, the Trial Judge and counsel for all parties proceeded on the understanding that two of the main issues in dispute were whether the defendant newspaper was liable in negligence for violating the statute which forbids the delivery of newspapers to Christopher O’Rourke, an underage newsboy, and whether Christopher was injured while in the course of his work and therefore relegated to a claim in workmen’s compensation. The complaint was dismissed at the end of the plaintiffs’ case because the trial court was of the opinion, erroneously I believe, that the statutory violation was, as a matter of law, not the proximate cause of the accident; the issue of whether Christopher had been engaged in an employment covered by compensation was never reached. In my view, the proximate cause issue was a question of fact and so was whether Christopher was in the course of his employment. There should, therefore, be a reversal and the case should be remitted for a new trial.
Before Christopher may be found to be covered in compensation, it must appear (1) that there existed a compensation policy (see Kuhn v City of New York, 274 NY 118), (2) that he was an employee of the defendant (see Matter of Flo v General Elec. Co., 7 NY 96; Matter of Gordon v New York Life Ins. Co., 300 NY 652), and (3) that the accident arose "out of and in the course of the employment” (Workmen’s Compensation Law, § 10; see Moon v Finkle, 6 NY2d 831; D’Anofrio v Hatten, 25 Misc 2d 346; Roberts v Gagnon, 1 AD2d 297). Absent any one of these elements, Christopher’s tort claim is viable.
The majority and I are in agreement that the defendant had
As I read its opinion, the majority here would hold that jurisdiction to determine whether Christopher’s accident arose "in the course of’ his employment is vested exclusively in the Workmen’s Compensation Board. Though academic here in the light of section 2 of the Workmen’s Compensation Law, the opinion goes so far as to say that even when the status of an injured person as an employee is a question of fact, rather than a statutory matter as here, that determination too must be made by the board and not the courts.
I cannot subscribe to the view that courts otherwise competent to adjudicate tort claims brought before them are ousted of their jurisdiction whenever a question of fact as to whether a plaintiff was in the course of his employment (or was an employee of the defendant) is raised on the pleadings. Indeed, I know of no case in which the courts have been required, as a matter of fundamental jurisdiction, to yield to the board as soon as such a question of fact appears to be involved. The sole instances in which courts have been required to defer to the jurisdiction of the board over such factual compensation issues are those in which a valid board determination of those issues had, by the time of trial on the tort claim, already been made (see Piggott v Field, 10 AD2d 99; Meaney v Keating, 200 Misc 308, affd 279 App Div 1030, affd 305 NY 660) or in which it appeared that the tort plaintiff had accepted compensation payments from the defendant’s carrier (Meaney v Keating, supra). These cases were decided on the theories of res judicata and election of remedies, respectively; it cannot be contended that either theory is applicable here.
In fact, the procedural issue here is very similar to that involved in Matter of Coe v House Inside (29 NY2d 241), where we noted that apparently the board itself usually feels
Finch v Swingly (42 AD2d 1035), Artonio v Hirsch (3 AD2d 939) and Gardner v Shepard Niles Crane & Hoist Corp. (268 App Div 561, affd 296 NY 539), relied on by the majority, are not to the contrary. In Finch and Artonio, plaintiffs, after alleging that "plaintiff was an employee of defendant * * * and 'engaged in and within the course of his employment’ ” (Finch v Swingly, supra [emphasis added]), attempted to characterize the acts of their employers as intentional rather than merely negligent. Since their complaints failed to set forth any facts supportive of an intentional tort, they were properly dismissed. The plaintiff in Gardner also alleged both that he was an employee and that he was injured in the course of his employment; he sought to circumvent compensation by claiming that the kind of injury he received (total disability due to dust inhalation) was not covered in compensation and was dismissed when it appeared to the court that the statute did encompass such an injury. None of these cases stands, therefore, for the proposition that the question of whether a plaintiff was "in the course of’ his employment may be disregarded in determining whether his tort action is valid; none is addressed to the jurisdiction of courts to decide that issue.
In short, while an injured worker’s remedy is indeed exclusively in compensation if in fact all three of the compensation criteria indicated above are met (see Workmen’s Compensation Law, § 11), that does not mean that his forum for the determination of factual issues raised by those criteria is necessarily predetermined.
Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg dissents and votes to reverse in a separate opinion.
Order affirmed.