Quinones v. P.C. Richard & Son

707 A.2d 1372, 310 N.J. Super. 63, 1998 N.J. Super. LEXIS 121
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 24, 1998
StatusPublished
Cited by4 cases

This text of 707 A.2d 1372 (Quinones v. P.C. Richard & Son) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quinones v. P.C. Richard & Son, 707 A.2d 1372, 310 N.J. Super. 63, 1998 N.J. Super. LEXIS 121 (N.J. Ct. App. 1998).

Opinion

The opinion of the court was delivered by

STERN, J.A.D.

Respondent employer P.C. Richard & Son (“the employer” or “respondent”) appeals from a partial permanent disability award of 25% for orthopedic and radial neuropathy “residuals of spiral fracture of the right humerus with scarification.” It contends that [65]*65the injuries are not compensable. We agree and reverse the judgment of the Division of Workers’ Compensation.

Because we agree with the employer that the injury is not compensable even giving petitioner the benefit of all legitimate factual inferences favorable to his position, we incorporate petitioner’s recitation of the facts adduced at the hearing:

On May 23, 1994, petitioner Nelson Quinones was employed by respondent P.C. Richard & Sons as a stock person.
On the aforementioned date, petitioner reported to work at approximately 4:00 p.m. It was petitioner’s intent to do his regular job which included replacement of stock items.
Petitioner was in the course of his usual job activities when his supervisor, [Ronald Landstrom], approached him. Petitioner’s supervisor asked petitioner whether he wanted to arm wrestle.
Petitioner proceeded to arm wrestle with his supervisor. Petitioner sustained injury. The accident occurred during petitioner’s working hours. At the time of the incident, the store was still open. The manager of the store was in the area, as were salespeople and customers.
Petitioner had worked for respondent for approximately a year and one-half to two years. During that time, arm wrestling occurred on a regular basis. Many employees participated in this activity, including sales persons, stock persons, and managers.
Prior to the date of accident, petitioner had engaged in arm wrestling with his supervisor, Ronny. He had done so on approximately four to five times prior to the date of accident. Many employees arm wrestled and the competition at the store was like a tournament. Arm wrestling would occur both during breaks and during working hours.
Many of the above facts were corroborated by respondent’s assistant store manager, Ronald Landstrom, who admitted in his testimony at trial to having engaged in an arm wrestling match with petitioner on the date in question. Respondent’s assistant store manager admitted that arm wrestling did occur at the store prior to the accident in question perhaps every couple of weeks or two to three times per month. Petitioner’s supervisor indicated that “£j]ust a few of the guys ... with the egos ... the strongest guy in the store type of thing” were the employees who usually participated in the arm wrestling. Landstrom admitted that he had engaged in arm wrestling on prior occasions and had engaged petitioner in arm wrestling on prior occasions.
During the incident on May 23, 1994, Petitioner sustained a serious spiral fracture of the right arm with residual scarification.
[ (Citations and footnote omitted).]

There was a dispute as to whether the store had closed before the arm wrestling began and as to whether petitioner or the [66]*66assistant store manager, Ronald Landstrom, initiated the contest. Landstrom testified that the activity commenced “after closing” as petitioner was leaving and that petitioner initiated the contest. According to Landstrom, petitioner approached him, “said am I ready, and put his elbow up on the podium in the front of the store” to start the contest. Landstrom also testified that arm wrestling occurred “once every couple of weeks or two, three times a month,” and admitted that he arm wrestled with petitioner “on prior occasions.” Landstrom also testified that the activity was “Absolutely not” “endorsed” or approved by the employer.

Petitioner claims that his “injuries are compensable” under N.J.S.A. 34:15-7.1, which provides:

Horseplay or skylarking on part of fellow employees
An accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of the employment of such employee and shall be compensable under the act hereby supplemented accordingly.
[ (Emphasis added and footnote omitted).] 1

The statute provides for workers’ compensation benefits for injuries “resulting from horseplay or skylarking” only if the injured employee had “not instigated or taken part in” the horseplay or skylarking. The judge of compensation, however, granted benefits noting that it has “been consistently held that Section 7.1 does not bar recovery for injuries sustained by an employee who instigated skylarking where skylarking practices were known by the employer.” The judge quoted extensively from Secor v. Penn Service Garage, 19 N.J. 315, 117 A.2d 12 (1955), in ruling for petitioner.

[67]*67In Secor, supra, the Supreme Court concluded that injuries sustained by an employee who was burned when he lit a match after his clothes were “splashed” with gasoline while filling a gas tank arose out of and in the course of his employment. Id. at 316, 323-24, 117 A.2d 12. See N.J.S.A 34:15-7. The parties disputed whether petitioner was lighting a cigarette or trying to impress his employer with his fearlessness when he lit the match and ignited his clothes. Id. at 324, 117 A.2d 12. In deciding that the injuries, under either party’s version, were “sufficiently work-connected and may fairly be said to have been an injury by accident arising out of and in the course of his employment,” id. at 324, 117 A.2d 12, Justice Jacobs noted that the trend in workers’ compensation cases had “been toward allowing compensation even to participating employees where their deviations may be said to be minor and attributable to normal human tendencies which men do not wholly shed simply because they are at work.” Id. at 320-21,117 A.2d 12. The Secor Court further stated:

The evidence does not warrant any inference of deliberate disobedience of an order of his employer, cf. Green v. DeFuria, [19 N.J. 290, 116 A.2d 19 (1955) ]; Waskevitz v. Clifton Paper Board Co., [7 N.J.Super. 1, 71 A.2d 646 (App.Div.1950) ], and even though his action in lighting the match for the assumed purpose be deemed grossly negligent and foolhardy it would nonetheless have been taken in the belief that it was in furtherance of the employer’s interests. See Green v. DeFuria, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
707 A.2d 1372, 310 N.J. Super. 63, 1998 N.J. Super. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinones-v-pc-richard-son-njsuperctappdiv-1998.