Opinion
No. 36-936, CA 7447
Reconsideration filed May 18, 1977
Former opinion filed April 20, 1977 Reconsideration denied July 18, 1977
Appeal from Circuit Court, Washington County.
David K. Young, Judge Pro Tempore.
James A. Redden, Attorney General, W. Michael Gillette, Solicitor General, and Kevin L. Mannix, Assistant Attorney General, Salem, for petition.
Donald R. Wilson and Pozzi, Wilson, Atchison, Kahn O'Leary, Portland, contra.
Before Schwab, Chief Judge, and Thornton and Tanzer, Judges.
Former opinion adhered to; petition for reconsideration denied.
THORNTON, J.
The State Accident Insurance Fund correctly points out in its petition for reconsideration that our summary of D'Anofrio v. Hatten, 25 Misc.2d 346, 206 NYS2d 494 (1960), was incorrect. In D'Anofrio the New York Supreme Court held that the issue of whether an employe injured on the employer's premises during the lunch period has an exclusive remedy under the Workmen's Compensation Law is a question of fact. Defendant's motion for summary judgment in a personal injury action was dismissed.
Our previous opinion held that an employe injured on the employer's premises during the lunch break while fixing a fellow employe's bicycle had established that his injury was compensable notwithstanding a minimal showing that the activity "arose out of" the employment.
Further examination of recent case law in other jurisdictions supports our previous conclusion. See, National Surety Corporation v. Bellah, 245 F.2d 936 (5th Cir 1957); Industrial Com. v. Golden Corp., 126 Colo. 68, 246 P.2d 902 (1952); American Steel Foundries v. Czapala, 112 Ind. App. 212, 44 N.E.2d 204 (1942); Carling Brewing Co. v. Belzner, 15 Md. App. 406, 291 A.2d 175 (1972); Lassila v. Sears, Roebuck Company, 302 Minn. 350, 224 N.W.2d 519 (1974); Dyer v. Sears, Roebuck Company, 350 Mich. 92, 85 N.W.2d 152 (1957); Thomsen v. Sears Roebuck Co., 192 Neb. 236, 219 N.W.2d 746 (1974); Askren v. Industrial Commission, 15 Utah 2d 275, 391 P.2d 302 (1964).
Except as to our misstatement of the holding in D'Anofrio, which is corrected herewith, we adhere to our former opinion.
Former opinion adhered to; petition for reconsideration denied.