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Sarzillo v. Turner Construction Co.

Decided: November 26, 1985.

ROBERT C. SARZILLO, PETITIONER-RESPONDENT,
v.
TURNER CONSTRUCTION COMPANY, RESPONDENT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 198 N.J. Super. 29 (1984).

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

The Workers' Compensation Law, N.J.S.A. 34:15-7, as amended effective January 10, 1980, bars workers' compensation for an injury suffered in recreational or social activities, unless such activities "are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale. . . ." We must determine whether the injury suffered by petitioner in a lunchtime recreational activity is compensable under this law.

I

At the time of the accident, petitioner, Robert Sarzillo, was employed by respondent, Turner Construction Co., as a journeyman-carpenter at a construction site in Bedminster Township. His working hours were from 8:00 a.m. to 3:20 p.m., with a paid lunch break from 11:50 a.m. to 12:30 p.m.

Approximately 1,500 feet from the area where Sarzillo was working, there was a food trailer (not owned by Turner) where employees could buy sandwiches and sodas. The nearest restaurant

was two miles from the site. Sarzillo testified that he always brought his own lunch on this job. On the day of the accident, Sarzillo and three of his co-workers were eating lunch in the basement of the building in which they were working. The employees were allowed to eat at their job locations.

For the three months he was at the job site, Sarzillo and some of his co-workers played "Ka-nocka" 12 or 15 times during their lunch break. Ka-nocka is a paddle game similar to tennis, played with wooden paddles and a rubber ball. No equipment was furnished by Turner. Sarzillo and his co-workers brought the paddles and the ball. Sarzillo testified that his foreman had seen the game played and had not objected to it.

During his lunch break on April 20, 1982, Sarzillo played Ka-nocka. When reaching down to hit the ball, he slipped and ruptured an Achilles' tendon. The Judge of Compensation concluded that petitioner's recreational injury was compensable, finding that:

[He] was, in effect, required to eat his lunch at the job site, since he would have been unable to leave the job site to go to a restaurant and return in time to resume work at the required time. . . . The fact is that any construction workers have to get along with each other and are entitled to have some physical exercise as well as food during their breaks and including the lunch break; that the respondent condoned this activity and never ordered these employees to cease. . . .

The Appellate Division, 198 N.J. Super. 29, 31 (App.Div.1984) affirmed the judge's findings as being reasonably reached on substantial credible evidence in the record as a whole. The court further held that the facts fully supported the conclusion that the Ka-nocka game satisfied both criteria of the statutory exception: one, it was a recurrent lunchtime recreational activity, and as such, a regular incident of employment, and two, it produced a special benefit to the employer in that the employees, by remaining at the job site during lunch, did not travel to a restaurant, thereby risking returning late. Id.

We granted respondent's petition for certification, 100 N.J. 114 (1985), and now reverse. For the reasons that follow, we conclude that neither of ...


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