Woods v. Asplundh Tree Expert Co.

• Decision Date: 21 April 1992
• Docket Number: No. 13298,13298
• Citation: Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81, 1992 NMCA 46 (N.M. App. 1992)
• Parties: Joseph Lee WOODS, Claimant-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, and National Union Fire Insurance Co., Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 81

836 P.2d 81

114 N.M. 162

Joseph Lee WOODS, Claimant-Appellant, v.ASPLUNDH TREE EXPERT COMPANY, and National Union Fire Insurance Co., Respondents-Appellees.

No. 13298.

Court of Appeals of New Mexico.

April 21, 1992.

Certiorari Denied May 28, 1992.

[114 N.M. 162] Roger A. Wagman, Law Office of Roger A. Wagman, Albuquerque, for claimant-appellant.

Valerie A. Mackie Huling, Klecan, Childress & Huling, Albuquerque, for respondents-appellees.

OPINION

MINZNER, Judge.

Joseph Woods(Woods) appeals from a decision by the Workers' Compensation Administration denying his claim for benefits from Asplundh Tree Expert Company(Asplundh).Workers' Compensation Judge Gregory Griego concluded that Woods was not entitled to compensation, because the accident in which he was injured occurred as a result of "wrestling horseplay" with a Public Service Company(PNM) employee, and thus neither arose out of nor occurred in the course of his employment.SeeNMSA 1978, Sec. 52-1-28(A)(1)(Repl.Pamp.1991).

Woods contends that Judge Griego misapplied the rule he adopted.Alternatively, Woods contends that (1) Judge Griego erred in adopting that rule; (2)he should have adopted a different test; and (3) under that test, he should have awarded Woods benefits.

We conclude that Woods would have been entitled to workers' compensation benefits had he satisfied the rule Judge Griego adopted or the test for which Woods contends on appeal.We also conclude that Judge Griego correctly applied the rule he adopted.Finally, we conclude that the findings made as well as those rejected support Judge Griego's decision, even under the test for which Woods contends on appeal.Therefore, we affirm Judge Griego's decision.

I.

BACKGROUND.

Asplundh had a contractual relationship with PNM.Under that contract, it trimmed and removed trees away from power lines.Asplundh employees worked exclusively for PNM.Woods began and ended each day at PNM's Bernalillo Service Center.He picked up work orders there and returned them at the end of the day.On September 21, 1990, at about 3:45 p.m., Sean Patchell(Patchell), a PNM employee, pushed Thomas Lopez(Lopez) as he was walking through a hallway at the Center with Woods.Lopez, who testified that Patchell used a "blocking" move like that of a football player, bounced against the wall.Lopez then turned away and entered another room.Immediately thereafter, as Woods was putting down his lunch bucket, Patchell shoved him into the bulletin board in the hallway, using a similar move.Unlike Lopez, Woods turned toward Patchell, each man grabbed the other, and they wrestled for a brief period.Apparently they both fell.Woods suffered a broken leg as a result of the fall.

Judge Griego made findings and conclusions and wrote a memorandum opinion, which is included in the record.The pertinent findings of fact and conclusions of law he adopted are as follows:

Findings of Fact

7.The accident * * * did not arise his [sic] employment with Employer.The risk of accident was not incident to Worker's employment.

8.The accident * * * was not in the course of Worker's employment with Employer.The accident was not at a time, place, and under circumstances incident to Worker's employment.

. . . . .

35.Worker's accident and injury were the result of horseplay.

. . . . .

37.Horseplay * * * was contrary to Employer's policies and was not tolerated.

Conclusions of Law

1.Worker was not in an accident arising out of employment with Employer on 9/21/90.

2.Worker was not in an accident in the course of employment * * * *

. . . . .

14.Worker is not entitled to any benefits.This is because the injury here arose from horseplay which was an isolated occurrence, and Worker was a knowing participant in the horseplay.

In his memorandum opinion, Judge Griego surveyed the related case law in other jurisdictions.He identified rules courts have developed to analyze accidental injuries suffered by workers in the course of horseplay at work and tests commentators have suggested as improvements over the existing case law.

Describing the rule followed in New York as the majority view, Judge Griego applied that analysis to Woods' claim.He noted in his memorandum opinion that the evidence showed that horseplay was common and largely tolerated at PNM and that PNM personnel worked frequently with Asplundh personnel.However, the evidence also showed that horseplay at Asplundh was "not common," and Asplundh "employees had a sense that it would not be tolerated."For example, the only evidence of extreme horseplay at Asplundh was ten years earlier and seen as a workplace "legend."Judge Griego concluded that this evidence was inconsistent with a work climate where dangerous horseplay was common.He concluded that Asplundh policies controlled.Therefore, applying the New York rule, which allows horseplay participants to recover if the horseplay can be shown to be a regular incident of employment, Judge Griego concluded that the incident was an isolated one at Asplundh, and Woods could not recover.

II.

DISCUSSION.

Initially, "[j]ust as malicious assaults by co-employees were ruled out as intentional and personal, so sportive assaults were treated as something foreign to the inherent risks of the employment."1A Arthur Larson, Workmen's Compensation Law Sec. 23.10, at 5-181(1990)[hereinafter Larson].In 1920, the New York Court of Appeals took a different approach.Id.;seeLeonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711(1920)(acknowledging a worker's right to compensation for an eye injury that occurred when co-worker, in sport, threw an apple at a third employee).In Leonbruno, Judge(later Justice) Cardozo held that the accident was one " 'arising out of and in the course of employment,' within the meaning of the [workmen's compensation]statute."Id.

The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business.Many things that have no such tendency are done by workmen every day.The test of liability under the statute is not the master's dereliction, whether his own or that of his representatives acting within the scope of their authority.The test of liability is the relation of the service to the injury, of the employment to the risk.

Id., 128 N.E. at 712."[T]his view eventually won the ascendancy in non-participating victim cases."LarsonSec. 23.10, at 5-182.

In dealing with cases in which the victim participated in the horseplay, however, courts have not reached consensus on the proper analysis to apply.Some jurisdictions deny recovery to any participant.See generallyLarsonSec. 23.30(discussing the "aggressor defense").In others, a participant may recover if he or she can establish that the activity in which the injury occurred had become a regular incident of the employment, rather than an isolated act.See generallyid.Sec. 23.41(discussing the "New York rule").

An early commentator, analogizing horseplay cases to assault cases, argued against distinguishing participants from non-participants and against distinguishing instigators or aggressors from other participants.See, e.g., Samuel B. Horovitz, Injury and Death Under Workmen's Compensation Laws 110-12 (1944);Samuel B. Horovitz, Workmen's Compensation: Half Century of Judicial Developments, 41 Neb.L.Rev. 1, 25-28(1961)."In short, horseplay is a risk incidental to employment; who is to blame for the risk, while important in tort cases, has no relevancy in workmen's compensation cases."Id. at 28(footnote omitted).A contemporary commentator attributes to Mr. Horovitz "[t]he view that the instigator should be treated the same as the non-participant, since it is the conditions of the employment that induce the horseplay[,]"LarsonSec. 23.20, at 5-183, and characterizes that view as an alternative way of "break[ing] down the * * * broad old rule of non-liability to participants."Id.Sec. 23.50, at 5-197.

Although the "generalization that the question of participation is immaterial in all circumstances" lacks case law support LarsonSec. 23.50, at 5-197, the cases from other jurisdictions do reflect a trend against the rule denying recovery solely on the basis of participation and toward the elimination of distinctions based on fault.For example, the New York rule supports at least one of the cases on which Mr. Horovitz relied in arguing that courts should eliminate distinctions based on fault.SeeStark v. State Indus. Accident Comm'n, 103 Or. 80, 204 P. 151(1922);see alsoLarsonSec. 23.50, at 5-195 to -196.

In apparent recognition of this trend, Professor Larson has formulated a multi-factor test.Under this test, he suggests that a participant "should recover, if, by ordinary course-of-employment standards, his indulgence in horseplay does not amount to a substantial deviation from the employment."Id.Sec. 23.20, at 5-183;see alsoSec. 23.00;Secs. 23.60-23.66(discussing, as a "suggested solution," the course of employment test).

As the Arizona Court of Appeals has noted, the course of employment test extends the New York rule, seeJaimes v. Industrial Comm'n, 163 Ariz. 307, 787 P.2d 1103(Ct.App.1990), and the most recent case law favors the course of employment test.In fact, one of the jurisdictions which appeared to favor the view that courts should abolish the distinction between non-participants and participants, seeLarsonSec. 23.50, at 5-195 n. 22, now has adopted the course of employment test.In Petrie v. General Motors Corp., 187 Mich.App. 198, 466 N.W.2d 714, 716(1991), the Michigan Court of Appeals, citing Crilly v. Ballou, 353 Mich. 303, 91 N.W.2d 493(1958), nevertheless found "guidance in Professor Larson's discussion of this issue" and applied his multi-factor test.

On appeal, Woods contends that Judge Griego misapplied the New York rule and, alternatively, erred...