Peetz v. Industrial Commission

604 P.2d 263, 124 Ariz. 332, 1979 Ariz. App. LEXIS 683
CourtCourt of Appeals of Arizona
DecidedAugust 28, 1979
DocketNo. 1 CA-IC 2083
StatusPublished

This text of 604 P.2d 263 (Peetz v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peetz v. Industrial Commission, 604 P.2d 263, 124 Ariz. 332, 1979 Ariz. App. LEXIS 683 (Ark. Ct. App. 1979).

Opinion

OPINION

HAIRE, Judge.

On this review of an award entered by the Commission’s hearing officer in a workmen’s compensation proceeding, the petitioning claimant contends that the hearing officer erred in finding that the gunshot injuries incurred by him while on off-duty status as a Tucson policeman were not compensable.

The facts are not in dispute. At the time of the injury, claimant was employed as a policeman by the respondent employer, the City of Tucson. The accident occurred at approximately 10:00 p. m., while claimant was off duty. He was in his car with his wife, waiting in line at a drive-in Dairy Queen, when the Colt .45 automatic pistol he had in his possession accidentally discharged as he was explaining the safety mechanisms to his wife. As a result, claimant suffered severe injuries to his left hand and left leg.

The evidence established that even though claimant was off-duty at the time of the accident, the rules and procedures of the respondent employer required off-duty officers to carry a concealed, authorized handgun at all times, except under circumstances where such would be an affront to acceptable social procedures. It is agreed that the exception was not applicable to the circumstances involved here. It appears that the reason for the requirement that the off-duty officer carry a handgun at all times was because the officer was on call 24 hours a day, that is, even when off-duty he [334]*334was required to respond with appropriate police action on any criminal matter coming to his attention.

In order to constitute a compensable workmen’s compensation claim, an injury must both arise out of and occur in the course of the claimant’s employment. A.R.S. §§ 23-1021A, 23-1041A; Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970). “Arising out of” employment refers to the physical cause of the injury; “in the course of” is generally said to refer to the time, place, and circumstances in which the injury occurred. Royall, supra.

We consider first whether the evidence required a finding that the accident occurred in the course of claimant’s employment. Under the rules and procedures imposed by the respondent employer, the time limitations of claimant’s employment could be extended beyond his normal duty hours so as to include the entire 24 hour period, to the extent that during these off-duty hours he would be engaged in fulfilling the requirements of his employment, i. e., while carrying a concealed handgun or when responding with police action on a criminal matter coming to his attention. Thus, here it must be held that the accident occurred within the time limitations of claimant’s employment, if he can be said to have been within the space and circumstance limitations of that employment. Likewise, since the “space” component of claimant’s employment includes the entire City of Tucson, and the accident occurred within the geographic limits of the city, it is clear that the accident occurred within the space limitations of the employment.1

This brings us to a consideration of whether the “circumstances” surrounding the accident were such as to be within the course of claimant’s employment. The “circumstances” component of the “in the course of employment” test generally refers to an examination of the activities in which the claimant is engaged at the time of the accident. The standard is stated in Larson as requiring a showing that the employee was engaged in fulfilling his duties or engaged in something incidental thereto.2 In Royall, supra, the Arizona Supreme Court discussed this requirement as follows:

“The type of activity which most clearly satisfies the ‘course’ test is the active performance by the employee of the specific duties which he was engaged to perform. A ‘weaker’ class of activity — that is, which does not so clearly meet the ‘course’ test or may fail to meet it altogether — includes those activities which are only incidental to the performance of the employee’s duties, such as seeking personal comfort, going to and coming from work, engaging in recreation, and the like.” 106 Ariz. at 350, 476 P.2d at 160.

It is important to note that an activity may be within the course of the employment, even though it is not an activity specifically authorized by or required by the employer, as long as the workman is “doing what a man so employed might reasonably do” within the appropriate time and space limitations. See generally City of Phoenix v. Industrial Commission, 104 Ariz. 120, 449 P.2d 291 (1969); McCampbell v. Benevolent & Protective Order of Elks, 71 Ariz. 244, 226 P.2d 147 (1950). All that is required is that the workman be involved in an activity he might reasonably be expected to undertake at such time. Stoddard v. Industrial Commission, 23 Ariz.App. 235, 532 P.2d 177 (1975); Gonzales v. Industrial Commission, 23 Ariz.App. 179, 531 P.2d 555 (1975); State Compensation Fund v. Keefe, 22 Ariz.App. 311, 526 P.2d 1266 (1974). The reasonableness standard stated in the above-cited cases should not be understood as importing into workmen’s compensation law concepts any limitations based upon principles of [335]*335fault or negligence. The question is whether the overall activity itself was reasonably related to a duty imposed by the employment, not whether that activity was being performed in a reasonable manner.

Applying these concepts, was the activity in which the claimant was involved at the time of the accidental discharge of his handgun reasonably related to the duties of his employment? First, focusing upon the specific activity involved, claimant was explaining the safety mechanisms of his handgun to his wife when he accidentally discharged it. The duties of his employment required that he have the handgun in his possession at that time. Although his employer’s rules and procedures required that he carry the gun in a concealed manner, he had removed the pistol from his waistband while inside his automobile in order to be more comfortable, and had handed it to his wife who was sitting in the front seat on the passenger side. When she questioned him concerning the “grip safety” feature of the pistol, he took the pistol from her, and as he was explaining the safety features, the accidental discharge occurred.

It is our opinion that, given the undisputed circumstances, it must be held that at the time of the accident claimant was involved in an activity incidental to, and reasonably related to, the duties of his employment. While the respondent carrier makes much of the fact that the handgun was not being carried in a concealed manner at the time of the accident and that this particular handgun had not been specifically authorized for use by claimant as an off-duty handgun,3

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Related

Buick v. Industrial Commission
309 P.2d 257 (Arizona Supreme Court, 1957)
McCampbell v. Benevolent & Protective Order of Elks
226 P.2d 147 (Arizona Supreme Court, 1950)
Stoddard v. Industrial Commission
532 P.2d 177 (Court of Appeals of Arizona, 1975)
Gonzales v. Industrial Commission
531 P.2d 555 (Court of Appeals of Arizona, 1975)
City of Richmond v. Johnson
115 S.E.2d 910 (Supreme Court of Virginia, 1960)
City of Phoenix v. Industrial Commission
449 P.2d 291 (Arizona Supreme Court, 1969)
Loveless v. Industrial Commission
432 P.2d 600 (Court of Appeals of Arizona, 1967)
State Compensation Fund v. Keefe
526 P.2d 1266 (Court of Appeals of Arizona, 1974)
Royall v. Industrial Commission
476 P.2d 156 (Arizona Supreme Court, 1970)

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Bluebook (online)
604 P.2d 263, 124 Ariz. 332, 1979 Ariz. App. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peetz-v-industrial-commission-arizctapp-1979.