dissenting.
I respectfully dissent. The trial judge made a specific finding that while unloading roofing supplies on a wet roof, Varela responded to verbal “mocking” by coworkers by challenging one of them to an arm-wrestling contest and that his injury occurred “in preparation or during the arm-wrestling contest.” Based on these findings, I regard the determination that Varela’s injury occurred as a result of conduct arising out of his employment to be clearly erroneous.
Whether an accident arose “out of” and “in the course of” employment, as those terms are used in the workers’ compensation law, must be determined from the facts of each case. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); Tompkins v. Raines, 247 Neb. 764, 530 N.W.2d 244 (1995). The claimant has the onus of proving that the injury arose both “out of” and “in the course of” his or her employment. Cords v. City of Lincoln, supra; Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965).
The phrase “arising out of” describes the accident and its origin, cause, and character, i.e., whether it resulted from risks arising within the scope or sphere of the employee’s job. The *675phrase “in the course of” refers to the time, place, and circumstances surrounding the accident. Cords v. City of Lincoln, supra; Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996). The test to determine whether an act or conduct of an employee which is not a direct performance of his work “arises out of” his employment is whether the act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard. Cords v. City of Lincoln, supra; Cannia v. Douglas Cty., 240 Neb. 382, 481 N.W.2d 917 (1992). We stated in Schademann v. Casey, 194 Neb. 149, 155, 231 N.W.2d 116, 121 (1975):
“All acts reasonably necessary or incident to the performance of the work, including such matters of personal convenience and comfort, not in conflict with specific instructions, as an employee may normally be expected to indulge in, under the conditions of his work, are regarded as being within the scope or sphere of the employment.”
(Emphasis supplied.)
I agree that Varela’s injury occurred at his assigned place of work at a time when he should have been working, but in my view the evidence clearly establishes that his activity at the time of his injury was not reasonably incident to the performance of his duties. When Varela laid down his work and challenged a coworker to an arm-wrestling contest, he was no longer serving his employer’s interest; he was acting contrary to work rules which specifically prohibited “[b]oisterous or disruptive activity in the workplace.” I would not regard Varela’s conduct as a “trifling and insubstantial deviation” from his duties, but, rather, a deliberate act done with complete disregard of those duties and the employer’s legitimate expectation that workers perform their assigned tasks in compliance with rules governing workplace conduct. If initiating an arm-wrestling contest while standing on a slippery roof under construction is not so substantial a deviation from the work of a roofer as to create a “formidable independent hazard,” the statutory requirement that an injury must arise out of employment in order to be compensable becomes essentially meaningless.
Neither am I convinced by the rationale of the Court of Appeals that Varela’s injury should be compensable because it *676occurred during a work stoppage of “momentary duration ... at the very outset of the horseplay.” Varela v. Fisher Roofing Co., 5 Neb. App. 722, 732, 567 N.W.2d 569, 576 (1997). The focus should be on what the employee was doing, not how long he did it before he was injured. If the nature of Varela’s conduct at the time of his injury was a consciously deliberate and substantial deviation from his employment, as I believe it was, the injury should not be compensable whether it occurred 1 minute or 1 hour after the conduct commenced.
I respectfully disagree with the attempt of the majority to distinguish this case from Simon v. Standard Oil Co., 150 Neb. 799, 36 N.W.2d 102 (1949). In that case, an employee walked approximately 30 feet from his work area after completing his shift and was injured while examining a newly installed exhaust fan, which was not a part of his duties. In holding the injury noncompensable, we stated that if Simon had remained in his work area “or if he had not yielded to his curiosity as to the operation of the fan,” he would have received no injury. 150 Neb. at 807, 36 N.W.2d at 106. Here, if Varela had continued to do his work instead of setting it aside and yielding to his belief that he could defeat his coworker in an arm-wrestling contest in violation of his employer’s rules, he would not have been injured either. I would reverse with directions to dismiss the petition.
Caporale, J., joins in this dissent.