Kloer v. Municipality of Las Vegas

• Decision Date: 17 November 1987
• Docket Number: No. 9921,9921
• Citation: 746 P.2d 1126,106 N.M. 594,1987 NMCA 140
• Parties: Fritz KLOER, Plaintiff-Appellee, v. The MUNICIPALITY OF LAS VEGAS, New Mexico and New Mexico Municipal Self Insurers, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1126

746 P.2d 1126

106 N.M. 594

Fritz KLOER, Plaintiff-Appellee, v. The MUNICIPALITY OF LAS VEGAS, New Mexico and New Mexico

Municipal Self Insurers, Defendants-Appellants.

No. 9921.

Court of Appeals of New Mexico.

Nov. 17, 1987.

[106 NM 595] Carlos G. Martinez, Don E. Lepley, Butt, Thornton & Baehr, P.C., Albuquerque, for defendants-appellants.

Ronald J. Van Amberg, Roth, Van Amberg, Gross, Amarant & Rogers, Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Defendants appeal a judgment awarding worker's compensation benefits for a heart attack brought on by claimant's participation in a lunchtime basketball game. The sole issue is whether the recreational activity that triggered the heart attack arose out of and in the course of claimant's employment. The trial court found it did. We hold that where, as here, the recreational activity occurs on the employer's premises, and the employer knows of and acquiesces in the activity, an accidental injury resulting therefrom satisfies both the "arising out of and in the course of employment" requirements. We, therefore, affirm. Another issue listed in the docketing statement has been abandoned.

FACTS

Fritz Kloer was employed by the Municipality of Las Vegas (the City) as a supervisor in the gas utility division. On the premises of the workplace was a basketball court that was fenced in by the City. The basketball backboard and rim were bought with City funds and were installed on the side of a City building; the City kept basketballs for the use of its employees. It is undisputed that the City was aware of the fact that many of its employees played basketball during their lunch hour. Indeed, the trial court found as fact, and it is unchallenged on appeal, that the "City, in essence, established, promoted, acquiesced in and condoned the recreational facility and the activities located within its premises." On April 2, 1986, during the lunch hour, another employee challenged Kloer to a two-on-two basketball game that the employee characterized as a " 'labor v. management' " game. Kloer and his supervisor played on one side against two employees. As a proximate result of the basketball game, Kloer suffered a myocardial infarction (heart attack).

In order to recover compensation, the worker must show that the injury and resulting disability arose out of and in the course of his employment. NMSA 1978, Secs. 52-1-19 and -28(A)(1) (Orig.Pamp.). It is well-settled that this requirement involves two separate inquiries. The term "arising out of" the employment denotes a risk reasonably incident to claimant's work. Losinski v. Drs. Corcoran, Barkoff & Stagnone, P.A., 97 N.M. 79, 636 P.2d 898 (Ct.App.1981). The term "course of employment" relates to the time, place and circumstances under which the accident takes place. Velkovitz v. Penasco Indep. School Dist., 96 N.M. 577, 633 P.2d 685 (1981). In order to recover benefits, the worker must show that both requirements are satisfied. Velkovitz v. Penasco Indep. School Dist.; Losinski v. Drs. Corcoran, Barkoff & Stagnone, P.A. The City argues that on the facts of this case, neither of these requirements is satisfied. We disagree.

Injuries resulting from recreational activities, acquiesced in by the employer and occurring on its premises, have been held compensable in the majority of cases. 1A A. Larson, The Law of Workmen's Compensation Sec. 22.10 (1985). Thus, in Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 147 A.2d 783 (1959), a case remarkably similar to the one before us, the court held compensable an employee's injury that occurred while the employee was engaged in a customary lunchtime recreational softball game at the employer's premises that the employer not only permitted but also encouraged by supplying the necessary equipment. Accord McNamara v. Town of Hamden, 176 Conn. 547, 398 A.2d 1161 (1979); Eagle Discount Supermarket v. Industrial Comm'n, 82 Ill.2d 331, 45 Ill.Dec. 141, 412 N.E.2d 492 (1980); Mack Trucks, Inc. v. Miller, 23 Md.App. 271, 326 A.2d 186 (1974), aff'd and opinion adopted, 275 Md. 192, 338 A.2d 71 (1975); Bender v. Long Island Lighting Co., 71 A.D.2d 754, 419 N.Y.S.2d 238 (1979); City of Oklahoma City v. Alvarado, 507 P.2d 535 (Okl.1973).

While a number of jurisdictions has denied compensation, see, e.g., Holck v. Town of Hempstead, 63 A.D.2d 1114, 406 N.Y.S.2d 393 (1978), aff'd, 47 N.Y.2d 993, 420 N.Y.S.2d 211, 394 N.E.2d 281 (1979); Beiring v. Niagara Frontier Transit System, Inc., 23 A.D.2d 611, 256 N.Y.S.2d 365 (1965), we believe the rule of liberal construction, coupled with earlier pronouncements in related cases, portends that the majority view would be adopted by the New Mexico Supreme Court. For example, recovery has been allowed in New Mexico in a "personal comfort" case when the employee was injured en route to a cafe where, with the employer's knowledge and consent and without deduction in pay, the employee ate his meals. Sullivan v. Rainbo Baking Co., 71 N.M. 9, 375 P.2d 326 (1962); see Whitehurst v. Rainbo Baking Co., 70 N.M. 468, 374 P.2d 849 (1962) (injury arose out of and in the course of employment when mechanic, who was on twenty-four-hour call for which he was paid a weekly salary, was struck while crossing the street on a coffee break). In our case, the trial court found that Kloer's job as director of the gas utility was a stressful position that required responses to emergencies on a twenty-four-hour basis. Recovery has also been allowed for injuries received during an "enforced lull." See Velkovitz v. Penasco Indep. School Dist. (injuries sustained during break by teacher, who was at a ski area during school hours as chaperone, arose out of and in the course of employment). Our supreme court has long been committed to the view that the Workmen's Compensation Act (Act) is remedial and should be liberally construed, with all doubts resolved in favor of the worker. Cuellar v. American Employers' Ins. Co., 36 N.M. 141, 9 P.2d 685 (1932), overruled on other grounds, Dupper v. Liberty Mut. Ins. Co., 105 N.M. 503, 734 P.2d 743 (1987). Thus, the judicial approach in New Mexico has been toward expanding, rather than restricting, compensability when construing the Act. See also Oliver v. City of Albuquerque, 106 N.M. 350, 742 P.2d 1055 (1987); Smith v. City of Albuquerque, 105 N.M. 125, 729 P.2d 1379 (Ct.App.1986).

The City challenges a finding of the trial court to the effect that participation in the basketball game was required by Kloer's job. We do not reach the issue of whether this finding was supported by substantial evidence because, in our view, the finding is unnecessary to the trial court's decision and our disposition of this case. Newcum v. Lawson, 101 N.M. 448, 684 P.2d 534 (Ct.App.1984); Ratzlaff v. Seven Bar Flying Serv., Inc., 98 N.M. 159, 646 P.2d 586 (Ct.App.1982). In the instant case, the trial court found as fact, and it is unchallenged on appeal, that the City had in essence established, promoted, acquiesced in and condoned the recreational activities of its employees. Again, courts that have dealt with this issue have found such fact, coupled with the activity taking place on the work premises, sufficient. See, e.g., McNamara v. Town of Hamden; Tocci v. Tessler & Weiss, Inc. Where, as here, lunchtime recreational...