
    In the Matter of the Claim of Glenora Merchant, Respondent, v Pinkerton’s Inc. et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued April 25, 1980;
    decided June 10, 1980
    
      POINTS OF COUNSEL
    
      Mark W. Hamburger and Marvin H. Mason for appellants.
    Substantial evidence supports the decision of the Workers’ Compensation Board that the decedent’s unauthorized carrying of a gun while on duty was a violation of a strictly enforced work rule and that the fatal injury that resulted therefrom did not arise out of and in the course of employment. (Matter of Feldman v A. B. C. Vending Corp., 12 NY2d 223; Matter of Yodakis v Smith & Sons Carpet Co., 193 App Div 150, 230 NY 593; Matter of Barrett v Al Charyn, Inc., 13 AD2d 863, 11 NY2d 849; Matter of Boggan v Abby Finishing Co., 11 AD2d 591; Matter of Hyatt v U. S. Rubber Reclaiming Co., 230 App Div 743, 256 NY 571; Burch v Ramapo Iron Works, 210 App Div 506; Ebberman v Walther & Co., 209 App Div 248; Matter of Price v Mergenthaler Linotype Co., 244 App Div 855; Knickman v Zurich Gen. Acc. & Liab. Ins. Co., 215 App Div 56; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322.)
    
      Frank S. Kedzielawa and Gerard R. Fornes for Glenora Merchant, respondent.
    A work-related injury caused by a violation of a strictly enforced work rule regulating the manner in which a job is performed arises out of and in the course of the employee’s employment. (Matter of Fox v Truslow & Fulle, 204 App Div 584, 236 NY 634; Matter of Burns v Merritt Eng. Co., 302 NY 131; Matter of Valenti v Valenti, 28 AD2d 572; Matter of Appleberry v Moskowitz, 50 AD2d 1001; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322.)
   OPINION OF THE COURT

Chief Judge Cooke.

The single issue presented is whether decedent’s disregard of his employer’s prohibition against carrying personal firearms on the job leads to the conclusion, as a matter of law, that his accidental shooting did not arise in and out of the course of his employment.

The operative facts are undisputed. On the morning of May 5, 1974, two boys playing in an industrial neighborhood discovered the decedent’s body, clothed in a Pinkerton guard uniform, lying on the ground near the loading dock of a Railway Express Agency terminal which he was assigned to guard. One bullet had been fired from decedent’s .22 caliber pistol found lying at his side. After an autopsy, the cause of death was determined to be a self-inflicted gunshot wound in the abdomen and was ruled an industrial accident.

At a hearing before a referee of the Workers’ Compensation Board, the employer and its compensation carrier contended that the accident did not arise out of the course of decedent’s employment based upon the existence of a work rule forbidding unarmed security guards from carrying firearms while on duty. When decedent was hired, some two months before the fatality, he signed an application acknowledging that he was forbidden to carry a firearm unless instructed to do so. Regulations of the employer provided that contravention of that rule would result in immediate discharge. On the day of the fatal accident, decedent was not permitted to be carrying a gun.

The referee found "accidental death * * * arising out of and in the course of employment and causally related thereto.” The Workers’ Compensation Board reversed and disallowed the claim stating that decedent’s unauthorized carrying of a gun while on duty constituted a violation of a strictly enforced work rule which rendered decedent, and consequently the accident, outside the course of his employment. A divided Appellate Division reversed the board on the law. There should be an affirmance. The crucial inquiry in these "work rule” cases focuses on the thrust of the rule itself, i.e., whether the rule defines what the employee’s duties are or merely how those duties are to be performed. In the former case, violation of the work rule will result in the employee’s acting outside the scope of his employment and any injury resulting therefrom will be noncompensable (e.g., Matter of Yodakis v Smith & Sons Carpet Co., 193 App Div 150, affd 230 NY 593). In the latter case, the opposite result will obtain (e.g., Matter of Fox v Truslow & Fulle, 204 App Div 584, affd 236 NY 634).

As a general rule, the misconduct of an employee, whether framed in terms of simple negligent dereliction of duty or even willful disobedience of the rules of the workplace, has no bearing upon whether an injury is compensable. Under the Workers’ Compensation Law, fault of the respective parties simply has no bearing to the basic test of coverage (see Matter of Granger v Urda, 44 NY2d 91, 97). Instead, with limited exception, the sole inquiry is whether the injury arose out of and in the course of employment (see Workers’ Compensation Law, § 21). If that inquiry be answered in the affirmative, compensation will be awarded the injured worker "without regard to fault as a cause of the injury” (Workers’ Compensation Law, § 10; see, also, § 2, subd 7). And, in keeping with the remedial purpose of compensation laws generally, the Workers’ Compensation Law is to be liberally construed "to accomplish the economic and humanitarian objects of the act” (Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145). Because of these general considerations, then, there has never developed a rule of general applicability to the effect that an employee forfeits his compensation coverage by performing his duties in a needlessly dangerous way or in conscious disregard of the employer’s instructions (1A Larson, Workmen’s Compensation Law, § 30.00).

The "work rule” cases proceed under this general premise. Simply stated, there is a crucial distinction between the job the claimant has been hired to perform and the manner in which the employee is to accomplish that task. Where the disobedience of a work rule results in the employee overstepping the boundaries defining the ultimate work to be done, the prohibited act is outside the course of employment and any claim for compensation arising therefrom will be denied. But when the misconduct involves a violation of the employer’s regulations or prohibitions relating to the method of accomplishing the ultimate work, however strictly enforced those regulations may be, the act remains within the course of employment. In such a case, disobedience of the prohibition does nothing more than establish fault on the part of the injured employee. Since fault concepts generally are immaterial to compensation law, violation of a work rule relating to the manner in which the job is to be accomplished does not result in an injured employee forfeiting the right to compensation (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, 325-326; see Matter of Kilgore v Fragola, 14 AD2d 612; Matter of Macechko v Bowen Mfg. Co., 179 App Div 573, 575-576).

A simple example will serve to illustrate this distinction. The lathe operator engaged only to operate that machine will be deemed outside the scope of his employment when, in express contravention of his employer’s instructions, he operates a drill press to relieve boredom (see Matter of Rendino v Continental Can Co., 226 NY 565). In that situation, the work rule so restricts the sphere of employment in terms of permissible activities that its violation will constitute an abandonment of employment in which case compensation will be denied. On the other hand, that same operator is not outside the scope of his employment if, contrary to instructions, he uses his own tools, rather than those of the employer to operate the machine (see Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, supra; Matter of Fox v Truslow & Fulle, 204 App Div 584, 585, affd 236 NY 634, supra; Matter of Chila v New York Cent. R. R. Co., 251 App Div 575, affd 275 NY 585). The employee in this case is performing precisely the task he was engaged to do, albeit in a manner forbidden by the employer.

In the case at bar, the prohibition against carrying firearms was not one which limited the sphere of decedent’s employment, but simply dealt with the manner in which his duties were to be performed while on guard duty. This tragic accident did not occur by reason of decedent having arrogated to himself duties which he was forbidden to perform. Decedent was employed to carry out the duties of a security guard. He was engaging in that function when his gun accidentally discharged resulting in his death. While decedent disobeyed his employer’s injunction against carrying firearms, this prohibition restricted the manner in which decedent was to carry out his assigned employment rather than the nature of that employment itself. That decedent performed his duties in a manner prohibited by the employer did not, as a matter of law, remove decedent from the sphere of his employment.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). Most respectfully I dissent. The order of the Appellate Division should be reversed, without costs, and the decision of the Workers’ Compensation Board disallowing the claim should be reinstated.

Decedent died of a gunshot wound in the abdomen inflicted by his own pistol which was found at his feet. It is undisputed that he was employed as an unarmed guard, that his employment application included the statement, which he signed, that he understood that he was forbidden to carry a firearm unless instructed to do so, that he was furnished with a copy of the employer’s regulations which provided in part that "no member of the guard force * * * shall be permitted to carry a revolver or any other weapon unless so authorized by the manager”, that "no guard may carry his personal weapon on duty” and that carrying an unauthorized weapon would result in discharge, and that the employer strictly enforced the rule. The compensation Judge held the injury accidental and work related, the compensation board reversed and the Appellate Division, by a divided court, reversed on the law.

The majority below viewed decedent’s violation of the no-weapon rule as restricting the manner of performance rather than its sphere. There is no question that decedent was engaged in the performance of the work for which he was employed as a matter of time and place. But there also is no question that the carrying of his personal revolver was not in furtherance of the employer’s business, and resulted from the employee’s having arrogated to himself a duty (the carrying of a firearm) which he was not only not required to but was forbidden to perform.

There is a crucial distinction between the "method” cases on which respondent relies and the instant case. In Matter of Greene v City of New York Dept. of Social Servs. (44 NY2d 322), for example, the employee used her personal vehicle contrary to regulation to go from one outside appointment to another. The injury which occurred when her vehicle collided with another could just as well have occurred had she used commercial transportation and getting from one appointment to another was a required part of her employment. The same can be said of the rules violated in Matter of Burns v Merritt Eng. Co. (302 NY 131), Matter of Fox v Truslow & Fulle (204 App Div 584, affd 236 NY 634) and Matter of Macechko v Bowen Mfg. Co. (179 App Div 573) upon which respondent relies, as well as in the example from which respondent argues of an employee bringing his personal tool to work in violation of a rule. Each involves a situation in which the employer had furnished a material which was misused or duplicated by the employee’s personal material and the accident could have as readily occurred had the furnished material been used.

Here the material which caused the injury was wholly forbidden. To say under those circumstances that the violation relates only to method, as the majority does, or as respondent urges, to apply the presumption of section 21 to hold the injury covered is to ignore that the instrumentality of injury would not have been present and no injury could have occurred at all had decedent not violated the rule. In the words of Judge Pound, in Matter of Heitz v Ruppert (218 NY 148, 152), the "injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work.” An injury inflicted by a revolver carried by the employee in violation of the employer’s strictly enforced rule against carrying any firearm during employment is not a natural incident of the work.

Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Jones concurs.

Order affirmed. 
      
      . Burns is distinguishable also as a horseplay case, that being the major emphasis of the opinion.
     
      
      . Thus, the situation does not differ in any meaningful respect from the majority’s example of the lathe operator forbidden to operate a particular machine. The two are as tweedledum and tweedledee.
     