Opinion
Decided May 7, 1985
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Robert Abrams, Attorney-General ( Howard B. Friedland and Robert Hermann of counsel), for appellant.
John Kearney for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the decision of the Workers' Compensation Board reinstated.
Claimant was a 16-year-old youth employed as a "gas jockey" at a service station when he incurred the injuries for which he seeks compensation. During working hours one day, a fellow employee showed him that it was possible to toss a lighted match into a bucket containing a residue of oil, gasoline and grease without causing an explosion. This "trick" had previously been demonstrated to the fellow employee either by a third employee or by one of the owners of the station.
Two days later, claimant was visited at the station by a friend. During an idle period in which he was waiting for customers or a work assignment, claimant attempted to repeat the lighted match trick in order to impress his friend, but this time the residue in the bucket exploded, causing extensive burns on claimant's body. The Workers' Compensation Board determined that claimant's injuries were the product of "cumulative horseplay" and were thus compensable, but the Appellate Division reversed that decision, holding that the horseplay was an isolated incident of foolery that was not related to claimant's employment.
Injuries or deaths arising from employee horseplay are compensable under the Workers' Compensation Law if they result from conduct which "may reasonably be regarded as an incident of the employment" ( Matter of Burns v Merritt Eng. Co., 302 N.Y. 131, 135). These commonly known risks of employment occur when employees momentarily abandon work to play, tease, test one another or satisfy their curiosity ( Matter of Industrial Commr. v McCarthy, 295 N.Y. 443, 446; Matter of Leonbruno v Champlain Silk Mills, 229 N.Y. 470, 472; Matter of Verschleiser v Stern Son, 229 N.Y. 192, 199; see generally, 1A Larson, The Law of Workmen's Compensation § 23). Here, in light of claimant's youth ( see, Matter of Leonbruno v Champlain Silk Mills, 229 N.Y. 470, 472, supra), and the fact that the injury occurred during an idle period and resulted from curiosity about materials related to his work ( see, Matter of Piatek v Plymouth Rock Provision Co., 15 A.D.2d 405; Matter of Miles v Gibbs Hill, 225 App. Div. 839, affd 250 N.Y. 590), the Board was warranted in concluding that the incident which caused claimant's injuries was related to his employment. Furthermore, because there was testimony that at least two other workers at the station had previously engaged in the same conduct, the Board's determination that it was cumulative horseplay, and not an isolated incident, is supported by substantial evidence.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.