Velkovitz v. Penasco Independent School Dist.
| Decision Date | 11 August 1981 |
| Docket Number | No. 13114,13114 |
| Citation | 633 P.2d 685,1981 NMSC 75,96 N.M. 577 |
| Parties | Rhonda VELKOVITZ, Petitioner, v. PENASCO INDEPENDENT SCHOOL DISTRICT, a corporation, Respondents. |
| Court | New Mexico Supreme Court |
On certiorari, the sole issue is whether plaintiff's injuries are compensable under the Workmen's Compensation Act. §§ 52-1-1 to 52-1-69, N.M.S.A. 1978 and Cum. Supp. 1980. The trial court and the Court of Appeals both ruled against the plaintiff. We reverse.
For an injury to be compensable it must be caused by an accident "arising out of and in the course of employment." § 52-1-9, N.M.S.A. 1978. The phrase, in the course of employment, relates to the time, place, and circumstances under which the accident takes place. Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579 (1954); McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867 (1944). For an injury to arise out of employment, the injury must have been caused by a risk to which the injured person was subjected in his employment. Gutierrez v. Artesia Public Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978).
In the instant case, plaintiff filed a workmen's compensation action after she injured her knee while skiing at Sipapu Ski Resort. At the time she was injured, plaintiff was employed as a school teacher by the defendant Penasco Independent School District (Penasco) and was at the ski area during school hours acting in the capacity of supervisor, sponsor, and chaperone for the school's ski team and ski club. Under the arrangement between Penasco and Sipapu, which had been in effect for approximately ten years, Penasco was obligated to provide transportation for the students to and from the ski area. Once the students were at the ski area, the Sipapu ski instructors were responsible for the ski instruction and supervision of the students while skiing on the mountain. The faculty members escorting the students were instructed by Penasco that their responsibility was only to supervise the students to and from the area and while the students were in the lodge before and after skiing. With the knowledge and permission of the defendant, faculty sponsors had a settled and long-continued custom and practice, for more than ten years, of joining the students and participating with them in the ski instruction. During a period in which the students were allowed to ski on their own, the plaintiff was skiing, fell and injured her knee.
This is a classic case of the enforced lull in work component of the personal comfort doctrine. 1A A. Larson, The Law of Workmen's Compensation §§ 21.00 and 21.74 (1979). The leeway accorded an employee during an enforced break in his work extends to a certain amount of wandering around and even undertaking what otherwise might seem to be distinctly personal activities.
This doctrine was previously followed in Thigpen v. County of Valencia, 89 N.M. 299, 551 P.2d 989 (Ct.App.1976), cert. denied 90 N.M. 7, 558 P.2d 619 (1976), the widow of deputy sheriff Thigpen claimed compensation for the unexplained death of her husband. Thigpen was found dead in the driver's seat of his patrol car, the victim of an apparently accidental shotgun wound. The patrol car was located near a water tank which Thigpen used for watering his horses.
The trial court refused to award death benefits finding that the death did not arise out of and in the course of employment. The trial court also found that the deputy was watering his horses and performing no duties for his employer. The Court of Appeals reversed and ordered a new trial stating that the evidence showed that Thigpen was performing the duties of his employment at the time of the accident. Thigpen's death occurred during a period when he was on-call. During the on-call period, Thigpen could move about and engage in personal activities. Thigpen's superior officers knew that he kept horses and permitted him to water the horses during the period of time when he was on-call. The Court of Appeals held that because the employer knew and consented to Thigpen's practice of watering his horses, Thigpen had not deviated from his employment and was in the course of his employment when the accident occurred.
In a case similar to the instant case, an employee of a bus company drove one of...
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Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep't
...by an accident ‘arising out of and in the course of employment.’ ” Velkovitz v. Penasco Indep. Sch. Dist., 1981–NMSC–075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (quoting NMSA 1978, Section 52–1–9 (1973)). “Arising out of” and “in the course of employment” are two distinct requirements. Hernandez v.......
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Chavez v. ABF Freight Systems, Inc.
...that ABF had no say over what the employee did during the 8 hour rest break. ABF relies on Velkovitz v. Penasco Independent School District, 96 N.M. 577, 578, 633 P.2d 685, 686 (1981) to argue that injuries occurring during a lull in employment are compensable only when the employee is requ......
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Flores v. McKay Oil Corp.
...of employment, relates to the time, place, and circumstances under which the accident takes place." Velkovitz v. Penasco Indep. Sch. Dist., 96 N.M. 577, 577, 633 P.2d 685, 685 (1981). We look at whether the injury "takes place within the period of employment, at a place where the employee m......
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Neel v. State Distributors, Inc.
...risk to which the worker was reasonably subjected by reason of his employment. NMSA 1978, Sec. 52-1-28; Velkovitz v. Penasco Independent School District, 96 N.M. 577, 633 P.2d 685 (1981); Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966); Beckham v. Estate of Brown, 100 N.M. 1, 6......