Opinion
December 29, 1970
Appeal from a decision of the Workmen's Compensation Board, filed May 22, 1969. Appellants contend that the injury was the result of a purely personal act and that the injury was not a compensable accident. The Prudential Insurance Company annually conducted a "Leaders Club" business conference, based on production during the previous year, in various eastern cities. In 1968 claimant, a staff manager at its Albany, New York office, attended the session at Montreal, Canada held from the first to the fourth of May, and was required to attend business meetings and seminars in the mornings and afternoons. Prudential paid all his expenses, including hotel bill, travel allowance from Albany to Montreal and an amount for three meals a day, but he was free to eat where he chose. Claimant was accompanied by his wife but her charges were paid by claimant. Most of the delegates brought their wives, for whom the employer provided fashion shows and other entertainment. During the evening of May 2, claimant, his district manager and immediate supervisor, another staff manager, an agent and their wives went to a Montreal restaurant for dinner and, while dancing to moderate music, claimant's left knee weakened and he fell to the floor, sustaining an internal derangement of the knee. The description of the sudden weakening and collapse of claimant's leg was "`evidence of accident at its clearest'" ( Matter of Ellis v. Armour Co., J.C. Bleyl Div., 31 A.D.2d 690). Where an employer sends an employee away from home it has been held that the test as to whether specific activities are considered to be within the scope of employment or purely personal activities is the reasonableness of such activities, as such an employee may satisfy physical needs including relaxation, and, if the activity is found to be reasonable, the risk inherent in such activity is an incident of his employment ( Matter of Davis v. Newsweek Mag., 305 N.Y. 20, 28; Matter of Fleer v. Glens Falls Ins. Co., 16 A.D.2d 186, 188, mot. for lv. to app. den. 11 N.Y.2d 646). It could be held reasonable, under the existing circumstances, for claimant and his wife to go dining and dancing with other business associates and their wives while remaining in Montreal for the conference. His dinner was paid for by the employer, the attendance of wives was encouraged and he could be expected to relax with his wife at dinner. However, where an accident is attributable solely to the personal acts of the claimant and cannot be attributed in any way to the environment into which the employee has been brought by his employment, a resulting injury or death is noncompensable ( Matter of Kaplan v. Zodiac Watch Co., 20 N.Y.2d 537). Since claimant was dining with his superior and other business associates in a setting generated by and because of the business conference all were required to attend, it could be held that this rule would not preclude an award. Each case must be judged on its own facts and the situation in Matter of Hancock v. Ingersoll-Rand Co. ( 21 A.D.2d 703, 704), where it was held that the "frequenting of cocktail lounges with unknown female companions cannot be considered part of employment", is clearly distinguishable. Although the board's conclusion, that claimant's presence on May 2, 1968 at the restaurant in Montreal was directly connected with his employment, is supportable on the record, its decision is premised on the erroneous statement that claimant testified he was "at an employer sponsored dinner and dance". The claim, therefore, must be remitted for a determination based on a sustainable factual basis. Decision reversed, with costs to appellant against the Workmen's Compensation Board, and claim remitted for further proceedings not inconsistent herewith. Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur; Herlihy, P.J., dissents and votes to reverse and dismiss the claim, in the following memorandum: The decision appealed from should be reversed upon the law and the claim dismissed. Upon the present record the injury sustained is in no way the result of the environment in which his employment cast him. There was nothing inherent in the recreational activity which could have been reasonably foreseen or expected as hazardous. The injury is completely unrelated with anything other than the purely personal activity of dancing and apparently resulted from such motions as are connected therewith. While the activity itself is not an unreasonable activity (cf. Matter of Hancock v. Ingersoll-Rand Co., 21 A.D.2d 703), it does not appear that it had any connection with the employment except by the fortuitous circumstance that the claimant's supervisor was present. The fact that an otherwise purely personal activity has some employment connection is not sufficient to sustain a finding that the accident either occurred in or arose out of the employment ( Matter of Kaplan v. Zodiac Watch Co., 20 N.Y.2d 537). While the activity here is factually different than that considered in Matter of Kaplan v. Zodiac Watch Co. ( supra), its employment relationship is not such as to make it other than a personal activity and the particular accident has no actual relationship whatsoever to the employment. Indeed, in Kaplan it appeared that the activity was directly related to the employment as a factual matter and nevertheless it was held that liability would not ensue for an otherwise purely personal act.