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Claim of Ott v. Gem Electric Manufacturing Co.

Appellate Division of the Supreme Court of New York, Third Department
May 2, 1974
44 A.D.2d 331 (N.Y. App. Div. 1974)

Summary

In Matter of Ott v Gem Elec. Mfg. Co. (44 A.D.2d 331), as the decedent was parking his car in the employer's lot, he noticed that it was smoking and immediately drove it from the employer's premises to a vacant lot where it exploded, resulting in his death.

Summary of this case from Husted v. Seneca Steel Service

Opinion

May 2, 1974.

Appeal from the Workmen's Compensation Board.

Herbert Lasky ( John M. Cullen of counsel), for appellants.

Alfred Udoff for Joyce M. Ott, respondent.

Louis J. Lefkowitz, Attorney-General ( Harry Rackow and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.


These are appeals from decisions of the Workmen's Compensation Board, filed July 31, 1972 and August 9, 1973, which reversed a Referee's decision dismissing the claim, and found that decedent's death arose out of and in the course of his employment.

It is undisputed that, on the morning of March 29, 1971, as decedent was parking his car in the employer's parking lot he noticed that it was smoking, whereupon he immediately drove it approximately 100 feet to a vacant lot. He apparently got out to make an inspection, and then re-entered the vehicle which burst into flames resulting in his death.

We agree with the determination of the board that decedent's death arose out of and in the course of his employment. It is settled that a parking lot maintained by the employer constitutes precincts of employment ( Matter of Lugo v. Pelican Sportswear, 38 A.D.2d 632). The accident in the present case originated when decedent's car started smoking in the parking lot, and from that point compensability attached. Appellants urge that in driving to the vacant lot, decedent was attempting to repair or care for his vehicle and, therefore, was engaged in a purely personal act. However, the board could infer that claimant was endeavoring to save his employer's premises and any persons who might have been present from an apparent danger, and, therefore, could conclude that decedent's actions were for the employer's benefit. That decedent removed himself from the physical premises of the employment does not make the case noncompensable, where done in response to an emergency arising on the premises (see, generally, 1 Larson, Workmen's Compensation, § 28.10 et seq.). Nor is it relevant that decedent's conduct may have actually increased the risk to himself, since considerations of negligence have no place in workmen's compensation cases.

The decisions should be affirmed, with costs to the Workmen's Compensation Board.

HERLIHY, P.J., STALEY, JR., SWEENEY and MAIN, JJ., concur.

Decisions affirmed, with costs to the Workmen's Compensation Board.


Summaries of

Claim of Ott v. Gem Electric Manufacturing Co.

Appellate Division of the Supreme Court of New York, Third Department
May 2, 1974
44 A.D.2d 331 (N.Y. App. Div. 1974)

In Matter of Ott v Gem Elec. Mfg. Co. (44 A.D.2d 331), as the decedent was parking his car in the employer's lot, he noticed that it was smoking and immediately drove it from the employer's premises to a vacant lot where it exploded, resulting in his death.

Summary of this case from Husted v. Seneca Steel Service
Case details for

Claim of Ott v. Gem Electric Manufacturing Co.

Case Details

Full title:In the Matter of the Claim of JOYCE M. OTT, Respondent, v. GEM ELECTRIC…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 2, 1974

Citations

44 A.D.2d 331 (N.Y. App. Div. 1974)
355 N.Y.S.2d 28

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