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Gargiulo v. Gargiulo

Decided: June 22, 1953.

BERNARD W. GARGIULO, AN INFANT, BY ELIZABETH M. LOMBARDI, HIS GUARDIAN AD LITEM, PLAINTIFF-RESPONDENT,
v.
BERNARD S. GARGIULO, T/A VALLEY FOOD MARKET AND BANKERS INDEMNITY INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division.

For affirmance -- Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

The mishap which gave rise to this litigation in the Workmen's Compensation Division was occasioned by a boy's shooting an arrow in the direction of a tree on the property of the employer. The arrow struck the petitioner, who was then in the course of his duties as a clerk in the employer's store on the premises. The petitioner did not know where the arrow came from and heard only a cry, "Look out," before he was struck. The incident occurred as the petitioner was walking toward the rear entrance to the store, having completed his task of burning trash. The consequent injury which resulted in the loss of an eye was unintentional and due to poor aim.

In the Division the injury was determined to have resulted from an accident in the course of but not arising out of the employment. Compensation was therefore denied. The County Court affirmed, but there was a reversal in the Appellate Division, which held the petitioner had sustained an injury from an accident both in the course of and arising out of the employment. We granted the employer's petition for certification.

The appellant, while admitting the accident was in the course of the employment, contends it did not arise out of the employment within the meaning of the statute, R.S. 34:15-7 et seq., because it did not have its origin in a risk connected therewith. A number of cases are cited in which the necessary relationship between the employment and the

injury was found not to exist, but these are distinguishable on their facts as involving "skylarking," Staubach v. Cities Service Oil Co., 127 N.J.L. 577 (Sup. Ct. 1942); Budrevie v. Wright Aeronautical Corp., 135 N.J.L. 46 (Sup. Ct. 1946); Savage v. Otis Elevator Co., 136 N.J.L. 419 (Sup. Ct. 1948), or as dealing with situations in which injury or death was caused by an unknown assailant and for no known motive, Schmoll v. Weisbrod & Hess Brewing Co., 89 N.J.L. 150 (Sup. Ct. 1916); Giles v. W.E. Beverage Corp., 133 N.J.L. 137 (Sup. Ct. 1945); Bobertz v. Bd. of Education of Hillside Twp., 135 N.J.L. 555 (E. & A. 1947). But compare Gargano v. Essex County News Co., 129 N.J.L. 369 (Sup. Ct. 1943), affirmed on the opinion below, 130 N.J.L. 559 (E. & A. 1943).

Many other cases are submitted where compensation was allowed, but it is claimed they can be differentiated on the basis that the evidence indicated the injury flowed as a rational consequence from the performance of the task required by the employment.

Little is to be gained by digesting and analyzing the many cases treating this problem. They revolve about peculiar and odd factual situations, including a fatal insect bite suffered by a beach lifeguard, City of North Wildwood v. Cirelli, 129 N.J.L. 302 (Sup. Ct. 1943), affirmed 131 N.J.L. 162 (E. & A. 1943); a fractured skull sustained by a farm laborer who fainted from shock while assisting in the breach birth of a calf, Hall v. Doremus, 114 N.J.L. 47 (Sup. Ct. 1934); lightning striking and killing a workman, Mixon v. Kalman, 133 N.J.L. 113 (E. & A. 1945); a bartender shot by a customer in a dispute over the price of a drink, Emerick v. Slavonian Roman Greek Catholic Union, 93 N.J.L. 282 (Sup. Ct. 1919); an employee killed by a building falling as the result of a cyclone, Harvey v. Caddo DeSoto Cotton Oil Co., 199 La. 720, 6 So. 2 d 747 (Sup. Ct. 1942); an employee working near the edge of employer's property struck by a piece of falling cornice from a building on adjoining lands, Filitti v. Lerode Homes Corp., 244 N.Y. 291, 155 N.E. 579 (Ct. App. 1927). A comprehensive

collection of cases is found in Giles v. W.E. Beverage Corp., supra. Each rests upon its own facts and turns upon evidence providing or excluding the nexus between the injury and the conditions under which the work was done.

Our adjudications, however, set up certain standards which are of assistance in ascertaining whether the necessary link exists. In Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443 (E. & A. 1942), it was said: "An accident arises out of the employment if it ensues from a risk reasonably incident thereto. To take this classification the accident must in some sense be due to the employment." The risk was there declared to be incidental to the employment when it "belongs to or is connected with what the workman has to do in fulfilling his contract of service," and the accident was said to arise out of the employment if the danger is one to which the employee is exposed because of the nature of his employment.

There must be a causal relation between the injury and the conditions under which the work was required to be done. But foreseeability of the injury is not the test. It need not have been expected. Rather, it suffices if the injury has its origin in a risk connected with the employment and flows from that source as a rational ...


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