Summary
In Matter of Carl v. West Hill Sanitarium (15 A.D.2d 703) the court held that where the record established that the residence on premises was advantageous to the employer for the incidental performance of duties not covered by the actual agreement of employment an award would be upheld.
Summary of this case from Matter of Broman v. A. Brassard, Inc.Opinion
January 17, 1962
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by the employer and carrier from a disability award on the contention that claimant's fall and injury did not arise out of and in the course of her employment. Claimant, a nurse, was in charge of one of the employer's buildings from 7:30 P.M. to 7:30 A.M. four nights a week. She lived on the premises. She was injured when she fell en route to her room after visiting a coemployee, who also lived on the employer's premises. Claimant "understood" that she was obliged to live on the premises, although no one expressly told her so. She frankly admitted that she was free to come and go as she pleased during her "off hours". However, she was frequently called upon during her "off hours" in any kind of emergency; to explain any unusual incident which occurred when she was on duty; to unlock drug supplies; to check her reports with a doctor, and to assist either the employer or the police in the case of any unusual incident such as the suicide of a patient. While not subject to 24-hour call, her presence on the premises was clearly to the benefit of the employer. Each case of this kind must turn on the particular facts presented. Mere acquiescence to living on the premises for the sole convenience of the employee, as in Matter of Groff v. Uzzilia ( 1 A.D.2d 273, affd. 2 N.Y.2d 840), is one thing, and being available for the benefit of the employer is another. This record demonstrates that, as a practical matter, it was all to the advantage of the employer to have claimant live on the premises and available during much of her "off time" for emergencies. Under such circumstances, an accident occurring on the premises of the employer is a risk of the employment which permits a factual finding by the board that the accident arose out of and in the course of employment. ( Matter of Madigan v. United Hosp., 274 App. Div. 1077, motion for leave to appeal denied 299 N.Y. 799; Matter of Lewis v. River Crest Sanitarium Co., 277 App. Div. 914, affd. 302 N.Y. 655.) Award unanimously affirmed, with costs to the Workmen's Compensation Board.