Claim of Carrasquilla v. Penn Akron Co. , 10 A.D.2d 135 ( 1960 )

Herlihy, J.

The employer in his notice of injury stated the place where the accident occurred: “ Sidewalk outside front door of our bldg.”. In the employee’s claim the happening of the accident was described: ‘ ‘ Ice accumulation at entrance to factory building. Claimant fell on this ice. ’ ’

The claimant, an inside factory worker, on December 13, 1957 fell on a sidewalk at a point not to exceed six feet from the front entrance to the employer’s premises. Some of the employees started work at seven o ’clock and the maintenance man customarily opened the front door before that time. It was his practice to arrive and open the door earlier than he did on this particular morning and as a consequence several employees — including claimant— were waiting near the door and when it was opened they started into the building. The claimant was to the rear of the group — five or six in number — and was proceeding toward the entrance when she fell, sustaining the injuries for which compensation is sought herein.

The board’s memorandum decided the issue on the sole ground that claimant had not yet reached the employer’s premises when she fell on a public sidewalk. There was no description of the sidewalk as such before the Referee but the attorney for the claimant, when appearing before the board, conceded it to be a public sidewalk and we assume he meant the part running parallel with the curb and the building and not that part leading to the front door. An examination of Exhibits A and 0 in evidence, particularly the mark identifying the spot where claimant fell, leaves much to be developed as to the ownership of the sidewalk and under whose jurisdiction such matters as shoveling snow attached, together with the manner and custom of attending such matters. The mark on Exhibit 0 and the testimony of the witnesses tend to the conclusion the accident happened on that part of the sidewalk leading to the entrance. Even if it be established where she fell was a public sidewalk, it might well be determined under the circumstances herein to be a part of the employer’s premises or precincts where it could reasonably be inferred that it was a waiting area for employees who would have entered the building had the doors been unlocked. The limited record — in the absence of proof to the contrary — certainly, gives credence to the inference and implication that this claimant was within the precincts of her employment at the time of the accident. The record does not justify the finding by the board that Matter of Flanagan v. Ward Leonard Elec. Co. (274 App. Div. 1081) is not applicable to the present facts. In Matter of Rosenwasser v. Lanes Lake Success (9 A D 2d 1001) recently decided by this court, we held that where an employee to arrive at the entrance to her employment was required to walk through a parking lot, it was within the employer’s precincts. Also in Matter of Moskowitz v. Granata (9 A D 2d 310) where the claimant fell on a slippery driveway, it was held to be “ part of the facilities connected with the garage which was, for the purposes of this employment, the ‘ premises ’ (See, also, Matter of Doca v. Federal Stevedoring Co., 284 App. Div. 46-50; Matter of Gaik v. National Aniline Div., 5 A D 2d 1039.)

The testimony here is so indefinite and limited in scope, applying the “ reasonable mind ” interpretation, there is not sufficient fulcrum for the board’s decision.

The matter should be reversed and remitted to the board for further consideration.